NB v Hamos: EPSDT Class Action Certification in Illinois

About five years ago, I was invited to Illinois to help officials understand that the Early and Periodic Screening, Diagnostic and Treatment (EPSDT) mandate was nothing to fool around with.  It conveys Civil Rights of children, anyone under the age of 21, enrolled in Medicaid who are disabled.  It entitles them, as a Civil Right, to treatment that is “sufficient in amount, duration and scope to reasonably achieve the purpose for which it is furnished” (42 CFR 438.210).  I warned them that lawsuits were coming.  I suggested that they had better be prepared in advance to address the Civil Rights of disabled children enrolled in Medicaid, especially those who had mental illness symptoms.  Those children were all entitled to funding for treatment in the “least-restrictive” setting possible, in accordance with the Supreme Court Olmstead decision, among others.  I explained that this means they were entitled to getting treatment in their homes, schools and communities; the type of treatment I have been overseeing in Pennsylvania since 1981.

This home, school and community-based mental health treatment and behavioral support has been funded by the EPSDT mandate of the Medicaid Act since 1967.  It became a mandate in all fifty states, including Illinois, in 1989.  Unfortunately, every state violates the Civil Rights of its disabled children who depend upon Medicaid for their mental health treatment needs to a greater or lesser extent.  Predictably, all of the officials in Illinois ignored me.  But the truth will out….

On the day before Valentine’s day this year a Federal judge ruled as follows:

“The Court will certify class defined as follows: All Medicaid-eligible children under the age of 21 in the State of Illinois: (1) who have been diagnosed with a mental health of behavioral disorder; and (2) for whom a licensed practitioner of the healing arts has recommended intensive home and community based services to correct or ameliorate their disorders.”

The person who sent this court case to me said simply “Thanks to you.”

Here is the link to the Court Order.

If you think EPSDT funding can be “managed” by standard Managed Care procedures, you’re wrong.  The Office of Civil Rights is interested in hearing from people whose Civil Rights have been trampled upon by state and county governments, and the Medicaid Managed Care Organizations they have put in place to reduce, restrict or eliminate access to funding for prescribed mental health treatment.  For children enrolled in Medicaid, the EPSDT mandate explicitly requires that treatment funding has to be “sufficient in amount, duration and scope to reasonably achieve the purpose for which it is furnished.”  In at least thirty-six states, a disabled child can be enrolled in Medicaid regardless of family income, and thereby be entitled to EPSDT funding.

Hint:  For the last fifty plus years, in every court that has heard an EPSDT case, the court has ruled that only the licensed practitioner who saw the child face-to-face and prescribed the treatment can determine “the purpose for which it is furnished.”  Managed Care reviewers are licensed professionals who are paid to justify the reduction, restriction or elimination of EPSDT treatment funding.  Some of them are wholly dedicated to that pursuit, despite the obvious ethical implications and thinning legal ice on which they perform their “life’s work.”

Things are going to heat up in the EPSDT realm nationwide pretty soon as this game-changing Class Action certification gets the legs it deserves.  Congratulations to the courageous and effective legal team that navigated these treacherous waters on behalf of the children and their parents.

Keep smiling and stay sane.



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