Brunswick v. Hamos

26 F.Supp.3d 756

N.B., et al., by and through their next friends, Plaintiffs,

v.Julie Hamos, in her official capacity as Director of the Illinois Department of Healthcare and Family Services, Defendant.

No. 11 C 06866

United States District Court, N.D. Illinois, Eastern Division.

Filed February 13, 2014

Motion granted. Robert Hugh Farley, Jr., Robert H. Farley, Jr., Ltd., Mary Denise Cahill, Cahill and Associates, Naperville, IL, Michelle N. Schneiderheinze, Law Office of Michelle N. Schneiderheinze, Bloomington, IL, for Plaintiffs.

John E. Huston, Karen Elaine Konieczny, Illinois Attorney General's Office, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

John J. Tharp, Jr., United States District Judge

Nine children with mental health or behavioral disorders, through their guardians, bring this suit as a putative class action against the director of the Illinois Department of Healthcare and Family Services (“Department” or “HFS”). The four-count complaint alleges violations of the Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”) provisions of the Medicaid Act, 42 U.S.C. §§ 1396a(a)(43), 1396d(r) and Title II of the Americans with Disabilities Act (“Title II” or “ADA”), 42 U.S.C. § 12132, and the parallel provision of the Rehabilitation Act, 29 U.S.C. § 794 (“Section 504” or “RA”). The plaintiffs claim that HFS violates their rights by failing to provide medically necessary treatment—specifically, home or community-based mental health and behavioral services—in the most integrated setting appropriate to their needs. The plaintiffs seek declaratory and injunctive relief that would require HFS to implement appropriate screening and treatment alternatives to the acute care provided in general and psychiatric hospitals. One of the plaintiffs, N.B., also seeks monetary damages on his own behalf under the Rehabilitation Act.

This Court recently denied the defendant's motion to dismiss plaintiffs' claims, concluding that the plaintiffs stated a claim for relief under both the Medicaid Act and the disability discrimination statutes. It now takes up the plaintiffs' motion to certify a class under Federal Rule of Civil Procedure 23(b)(2). The plaintiffs' first request to certify the putative class was denied without prejudice. See Mem. Op. & Order, Dkt. # 45 (Pallmeyer, J.). For the reasons set forth below, the plaintiffs' amended motion is granted.

In this case, however, the defendants have not disputed the plaintiffs' basic factual allegations in opposing class certification. Moreover, the substantive legal disputes—such as whether the plaintiffs have any enforceable rights under the applicable statutes—were resolved on the defendant's motion to dismiss, leaving only the legal question whether this case is appropriate for class treatment. Accordingly, the Court sets forth the facts largely as alleged in the Second Amended Complaint.

A. The Named Plaintiffs

The named plaintiffs are all Medicaid-eligible youths (under age 21) who have been diagnosed with various mental illnesses and/or emotional or behavioral disorders.

N.B. is a boy diagnosed with autism, intermittent explosive disorder, mood disorder not otherwise specified, disruptive behavior disorder not otherwise specified, and moderate to severe mental retardation. He is non-verbal, aggressive, and prone to self-injury. Existing family support and outpatient services have proven ineffective to manage N.B.'s conditions, leading to numerous hospitalizations at Streamwood Behavioral Hospital for three-week stints, followed by a return to the same inadequate outpatient services. According to the complaint, N.B. needs treatment in a residential setting in order to best ameliorate his conditions and restore him to his most functional level.

R.F. is a boy with bipolar illness with a history of psychosis. His illness renders him physically aggressive to himself and others, and he suffers from extreme mood swings, anger, and irritability. He has been hospitalized at least ten times at the Pavilion Hospital, a psychiatric facility, for three to four weeks at a time. In between hospitalizations, family care and existing outpatient services have been unsuccessful in managing his condition. According to the complaint, R.F. needs treatment in an intensive residential setting.

J.J. is a boy suffering from intermittent explosive disorder, fetal alcohol syndrome, fetal methamphetamine exposure, moderate mental retardation, and pervasive developmental disorder not otherwise specified (an autism-like condition) (“PDD–NOS”). J.J. has been hospitalized at least four times at Streamwood and Pavilion Hospitals, and in between these hospitalizations, the available outpatient services and family care have been unsuccessful. According to the complaint, J.J. requires treatment in a residential setting.

M. Wa. is a boy diagnosed with oppositional defiant disorder, attention deficit hyperactivity disorder, moderate mental retardation, XYY syndrome, and he has been diagnosed with bipolar disorder in the past. He has been hospitalized at least five times at Streamwood and at Lincoln Prairie Behavioral Health System. In between hospitalizations, family care and available outpatient services have been insufficient to adequately care for him. According to the complaint, M. Wa. requires treatment in a residential setting.

Plaintiff M. Wh. is a young boy with diagnoses of early onset bipolar disorder, PDD–NOS, autism, and a seizure disorder. A doctor, Holly M. Maes, has recommended intensive community based care ² to correct or ameliorate his conditions; according to the complaint, without such care, M. Wh. is at risk of hospitalization.

Plaintiff M.B. is a teenaged girl with a significant history of suicidal ideation and maladaptive and self-injurious behaviors. She has mental illness or severe emotional disorders (“MI/SED”) not attributable to any developmental disability,³ including major depressive disorder, posttraumatic stress disorder, ADHD, and suicidal ideation. She was hospitalized about 10 times in the two years before the Second Amended Complaint was filed, for one- to four-week periods. A doctor, Paras Harshawat, has determined that M.B. requires treatment in a residential setting, and without it, she is at risk of more hospitalizations.

S.B. is a teenaged girl diagnosed with schizophrenia-paranoid type and ADHD, neither attributable to a developmental disability. She was hospitalized for her conditions in March 2011, and since her discharge, existing outpatient services and family care have not been adequate to correct or ameliorate her conditions. According to the complaint, S.B. requires an intensive community-based program, without which she will be a risk for institutionalization.

I.D. is a young boy with MI/SED not attributable to a developmental disorder, including bipolar disorder, mood disorder not otherwise specified, reactive attachment disorder, and ADHD. He experienced six hospitalizations in the two years before the Second Amended Complaint was filed, and was hospitalized for 122 days in one six-month period. In between hospitalizations, the available treatment options have been inadequate. A doctor, Christopher Sinnappan, has determined that I.D. requires treatment in a residential setting.

S.M. is a young man diagnosed with neurodevelopmental disorder, fetal alcohol syndrome, mood disorder, and ADHD. He has been psychiatrically hospitalized once and has grown increasingly verbally and physically aggressive. A doctor, Charles E. Burda, has determined that S.M. risks a lifetime of institutionalization without appropriate therapeutic care in a residential setting.

B. Class Allegations

The Second Amended Complaint alleges that the State of Illinois Medicaid program fails to meaningfully provide intensive community-based residential or outpatient care for children with mental illness and emotional or behavioral disorders, instead over-relying on hospitals to provide temporary acute care, followed by grossly inadequate outpatient services consisting of little more than medication management and one hour per week of counseling. The plaintiffs allege that the state fails to provide for intensive and individualized care in an integrated setting, instead requiring their segregation in hospitals in order to access appropriately therapeutic care. The plaintiffs define the putative class as:

All recipients of Medicaid in the State of Illinois under the age of 21 who are not receiving medically necessary home and community based services to treat or ameliorate their disorders, and are currently segregated, or who have segregated or [are] at risk of segregation for the purpose of receiving treatment and services and who would not oppose community services.

DISCUSSION

The plaintiffs move to certify this class under Rule 23(b)(2), which provides for class treatment where the general prerequisites of Rule 23(a) are satisfied and “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2); see Johnson v. Meriter Health Servs. Emp. Ret. Plan, 702 F.3d 364, 369–70 (7th Cir.2012).

A. Rule 23(a) Requirements

The four Rule 23(a) requirements are numerosity, commonality, typicality, and adequate representation of the class by the named plaintiffs and their counsel. Fed.R.Civ.P. 23(a); Wal–Mart Stores, Inc. v. Dukes, –––U.S. ––––, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). The last of these—adequacy of representation—is not challenged by the defendant ( see Mem., Dkt # 26 at 14 ⁴) and the Court agrees that the requirement is met. There is no foreseeable conflict of the named plaintiffs' interests with those of the class, and plaintiffs' counsel are appropriately qualified and experienced.

In addition to challenging the other enumerated Rule 23(a) requiremen...