Class Action Suit Filed to Prevent Forced Hospitalization of Illinois Children who are Medically Fragile and Technology Dependent

Current status of the lawsuit:  Due to a fourth extension and a (yet unfulfilled) promise that the IL state legislature would "fix" the program, the case has been continued.  Both parties will return to court in June.

On July 9, 2012, the legal team of Robert H. Farley, Jr., Mary Denise Cahill, Alysha Briggs-Miller and Michelle N. Schneiderheinze filed a Federal Class Action Lawsuit against the State of Illinois on behalf of approximately 1000 medically fragile children, including all children in the MFTD Waiver, to prevent elimination or reduction of home nursing care provided by Medicaid.  It accuses Illinois of violating the Americans with Disabilities Act, the Rehabilitation Act, and the Medicaid Act, and seeks to overturn changes to the Medically Fragile Technology Dependent (MFTD) Waiver, which could cause children who use medical technology such as ventilators from being forced into hospitals due to the reduction or elimination of their home nursing care.  The case is known as Boyce vs. Hamos.

The lawsuit addresses three changes to the program: 

  • a change to a "nursing facility" level of care for the program
  • the imposition of exorbitant copays for nursing care
  • the addition of an income cap 

These changes have the potential to reduce or eliminate home nursing care for these children, forcing them to be hospitalized permanently at three times the cost to the state.

For detailed coverage on the lawsuit, please see this article in the Chicago Tribune, Parents of Medically Fragile Children Sue Illinois for In-Home Nursing Care.  

The following documents related to the lawsuit are available: 

The following information related to this case is also available:  

Description of Hampe vs. Hamos case -- Hampe is a Class Action Lawsuit that addresses children who age out of the MFTD Waiver and enter adult programs. Upon turning 21, young adults are reclassified as having a "nursing facility" level of care instead of a hospital level of care, and are thereby restricted to about $9400/month in nursing care, which is the cost of care in a nursing facility.  Most young adults otherwise received about a 50% reduction in nursing services and hours.  The United States Justice Department has filed a brief in support of Hampe vs. Hamos.  Hampe vs. Hamos is very similar to Boyce vs. Hamos, which also attempts to reduce eligibility and the quantity of nursing care hours through a change to a "nursing facility" level of care program.  In September, a third case, Harris vs. Hamos, was filed on behalf of a young adult without technology dependence who receives nursing through Illinois' NPCS or PDN program for children already in Medicaid.  

United States Justice Department brief on similar Florida lawsuit -- In May, a similar class action suit was filed in Florida on behalf of children with medical technology in nursing homes and children at risk of institutionalization.  These children had had their nursing care hours systematically reduced over the years. This brief contains arguments very relevant to the newly filed Illinois case, particularly relating to EPSDT and how parents cannot be required to provide nursing type care for their own children without the assistance of nurses.  

The United States Justice Department also wrote a strongly-worded letter to Florida condemning its policies of forcing children into institutions and failing to provide children with appropriate home and community based services.  Florida's failure to provide home based nursing care for children can be thought of as what would happen if Illinois is allowed to similarly gut the MFTD Waiver.