Goldberg Kohn Achieves Landmark Victory for Cook County Children in Pro Bono Case
CHICAGO—In a landmark victory for 600,000 low-income children in Cook County, Illinois, Federal Judge Joan Humphrey Lefkow issued a decision late yesterday finding that the Illinois Department of Public Aid and the Illinois Department of Human Services have violated and continue to violate the rights of Medicaid-eligible children in Cook County to receive health care. Specifically, the judge ruled that the state has failed to deliver the preventive health services to which children are entitled under the federal Medicaid program, commonly known as Early and Periodic Screening, Diagnostic, and Treatment services (EPSDT). The state has also failed to provide these children with access to care that is equal to the access of care of privately insured children.
In the broadest challenge to date against any state for its administration of the Medicaid program, lawyers for the children argued that because of the state's failure to comply with federal law, a majority of Medicaid-enrolled children in Cook County did not receive sufficient, medically necessary health care, including preventive care, and that a third or more (at least 200,000 children) did not receive any preventive health care at all. According to Frederick H. Cohen, a principal of Goldberg Kohn and the lead trial counsel on the case, "Access to quality medical care is a real and pervasive problem in urban areas such as Cook County. There is a critical need for change in the health care delivery system for our most vulnerable children, and this class action lawsuit proved that the state of Illinois must do better."
Judge Lefkow has scheduled a hearing for September 14 to address the changes that the state must make to comply with its obligations to the children under federal law.
The case was originally filed in 1992 by lawyers who were previously at the Legal Assistance Foundation of Metropolitan Chicago and now are with two public interest groups, the Sargent Shriver National Center for Poverty Law and Health & Disability Advocates.[1] The case was stayed for years, however, to accommodate the state of Illinois' efforts to reform.
As of 1999, no changes had occurred and the public interest groups sought to revive the case. In 2000, Chicago law firm Goldberg Kohn Black Rosenbloom & Moritz, Ltd., learned that the case was still pending. After investigating the case and meeting with the public interest group lawyers, the firm agreed to commit its services on a pro bono basis.
In the four-week-long trial, lawyers for the children presented extensive evidence of the state's continued failure to deliver adequate access to health care. In a detailed 102-page written opinion, Judge Lefkow explained the meaning of "equal access" to medical care under the law: "[T]he plaintiffs are entitled to access equal to that of children with private insurance." The court expressly concluded that: "The plaintiffs have met their burden of establishing that the defendants have violated their rights by failing to provide them with equal access to medical services. Plaintiffs simply do not have access to medical services which is equal to that of privately insured children."
In addition, Judge Lefkow ruled that the state has failed to establish "a Medicaid program designed to provide all EPSDT services to all Medicaid-enrolled children on a timely basis." Under the EPSDT program, the state is obligated to provide certain medical services, including well-child examinations and immunizations, and must "effectively" inform all eligible individuals of the availability of the EPSDT services." In concluding that "The plaintiffs have shown that they are not being provided EPSDT services under the defendants' state plan," the court expressly found, for example:
- Of the Medicaid-eligible children who should have received six screening exams during their first 11 months of life, 60.6 percent received two exams or fewer, with 43 percent not receiving a single exam.
- Of Medicaid children in Cook County between the ages of 11 months and 23 months, 77.9 percent did not receive a blood lead-screening test (although all should have received one).
- Of those who should have received hearing exams between 47 months and 59 months of age, 93.6 percent did not receive one (although all should have received one).
The court also ruled that the children class proved that the state's attempt to improve access to health care by utilizing managed care organizations has failed. Currently, less than 15 percent of Medicaid-eligible children receive care from managed care organizations. The rate at which children on Medicaid receive early preventive screening from managed care organizations is no better than the rate for children on Medicaid who are not in managed care.
According to John Bouman, director of advocacy of the Shriver Center and co-counsel on the case since 1996, the implications of the state's failures are far reaching. "Preventive health care, early treatment of acute illnesses, and amelioration of chronic illnesses early in life may prevent more costly and personally challenging health problems later."
For example, a child who is not screened for hearing loss at an early age is at significant risk for speech and language deficiencies. Similarly, a child who does not receive early blood tests to detect lead poisoning is at risk for inpatient hospitalization, invasive chelation treatment, and subsequent developmental delays or permanent harm.
Due to the state's violation of federal law, records show that Medicaid-enrolled children are more likely than young children not on Medicaid to have elevated blood lead levels.
The reasons behind the state's failures to deliver equal and adequate health care services are numerous.
- There are no established, uniform procedures to effectively inform Medicaid eligible families about the state's health care program for children, known as Healthy Moms/Healthy Kids.
- Written notices and information materials are not adequately tailored to families with low literacy levels or poor English skills, and the materials that do exist are haphazardly distributed.
- The state has failed to use sufficient oral methods to supplement written materials and has not sufficiently utilized outreach and case management activities to capture those who fall through the cracks.
Exacerbating these deficiencies is the fact that there are not enough doctors to serve all those who are in need, primarily due the state's failure to fairly reimburse doctors.
In 1992, the Department of Public Aid noted that increasing provider participation would be a major focus and would be accomplished by providing incentives for participation such as increased reimbursement rates. Nonetheless, the rates are still inadequate. According to Cohen, "Reimbursement rates are currently about 50 percent of any appropriate benchmark, and the state of Illinois' reimbursement rates do not even cover the overhead costs of providing care, much less provide any remuneration to the treating physician. It is unrealistic to think that doctors would provide adequate access to Medicaid recipients when these doctors lose money on every Medicaid patient they see." Indeed, Judge Lefkow said: "Rates and equal access simply cannot be divorced."
Cohen says that Goldberg Kohn is extremely pleased with the outcome and remains fully committed to seeing this matter through to its conclusion, including enforcement of Judge Lefkow's decision. "We still have a significant amount of work ahead of us in our fight on behalf of the children, but we are confident that the parties can work together toward improving the delivery and quality of the state's Medicaid program."
Lawyers for the children class believe this decision will resonate across the country.
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[1] The Shriver Center is a Chicago-based not-for-profit organization that engages in policy advocacy on behalf of low-income people in Illinois and nationwide.
Health and Disability Advocates is a not-for-profit organization that advocates on behalf of low-income persons with disabilities, children with special needs, and older adults to ensure a safety net of public income-support and health care benefits.
