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Thursday, Jan. 26, 2012 11:47 am

Lawsuit claims Illinois illegally withholds treatment for kids

Proposes better treatment for behavioral disorders

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A class action lawsuit against the state of Illinois alleges state welfare agencies illegally withhold treatment for children with emotional and behavioral disorders. The lawsuit could affect more than 18,000 youth with severe mental illnesses and emotional disturbances in Illinois.

Filed against the Illinois Department of Healthcare and Family Services, the lawsuit seeks to force Illinois to provide intensive mental health services to children who qualify for Medicaid under federal law. All foster children and adopted children whose cases are handled by the state are eligible for Medicaid.

Attorney Robert Hugh Farley Jr. of Naperville filed the lawsuit in September on behalf of a 14-year-old boy, N.B., who lives with his mother near Chicago. Farley said he expects the judge overseeing the case to approve class action status this month.

According to the lawsuit, N.B. has been placed in a psychiatric hospital 14 times, where he stays an average of three weeks. N.B. is extremely aggressive, doesn’t talk and has been diagnosed with moderate to severe mental retardation, autism spectrum disorder, intermittent explosive disorder, mood disorder, disruptive behavior disorder and more, the lawsuit states. He also has “a history of maladaptive and self-injurious behaviors, including hitting himself in the head, scratching himself and biting his hand.”

“After N.B. has been discharged from the hospital, the family and outpatient services have been unsuccessful at maintaining a sufficiently supervised and therapeutic setting,” the lawsuit states. “As a result, N.B. ends up in crisis again, leading to yet another hospitalization. N.B. needs a residential treatment setting or facility to correct or ameliorate his mental and behavioral conditions. … Unless N.B. receives the necessary intensive residential services, he will likely be at risk for many more hospitalizations.” 

The lawsuit claims the state denied requests by N.B.’s mother, Angela Buchanan, for home- and community-based mental health services. N.B. is one of 18,134 children in Illinois identified by the Illinois Department of Human Services as having severe emotional and behavioral disturbances. Of those, only 220 receive intensive mental health treatment, DHS said in a 2010 report cited in the lawsuit.

Farley says federal law requires states with Medicaid programs to provide “medically necessary” treatment – including mental health services – to Medicaid recipients. Farley previously filed a successful class-action lawsuit on behalf of disabled children who aged out of the state’s Medically Fragile/Technology Dependent Program into a different program that provides significantly less funding. The U.S. Department of Justice joined Farley against the State of Illinois, and a federal judge ordered the state to continue serving program participants after they reach age 21.

The current lawsuit aims to prevent children with severe emotional and behavioral disturbances – many of whom are in foster care or adoptive homes – from being institutionalized if their behavior becomes too dangerous for their families to handle, Farley says.

“Some parents are told they can’t get funding for their child’s treatment and they reach a point where they don’t pick the child up from the psychiatric hospital because they’re a danger to their other siblings,” Farley said. “Then DCFS gets called and they take custody. The parents get residential treatment (for the child), but they’ve given up custody, and that shouldn’t have to be.”

Angela Buchanan and N.B. have a preliminary injunction against the state to prevent N.B. from being discharged from the psychiatric hospital unless the state is going to provide mental health treatment, Farley says. 

The federal government pays half of the cost of such treatment under Medicaid, Farley says. Though the state may struggle to pay its share for an increased number of children needing mental health treatment, Farley says a lack of money is not a defense for not complying with federal law.

“Illinois…doesn’t comply with the law until they’re ordered by a court,” he says. “It shouldn’t be a surprise to them that they’re being sued, but they’ve gotten away with it for all these years.” 

Contact Patrick Yeagle at pyeagle@illinoistimes.com.
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