Medicaid Advocacy Firm Successfully Challenges Illinois’ “Sudden Onset” for Undocumented Immigrant
R&B Solutions, a Medicaid Advocacy company based out of Waukegan, Illinois, successfully challenged the state’s “sudden onset” requirement on behalf of an undocumented immigrant whose Medicaid eligibility was denied based on existing symptoms that lacked “sudden onset.” In Elvira Arellano v. Illinois Department of Human Services, the 2nd District Appellate Court ruled that the sudden onset language that the Department of Human Services added to the federal Medicaid regulation, which Illinois’ regulation mirrors, impermissibly modifies the federal Medicaid statute that does not contain the sudden onset language and cannot be enforced.
Elvira Arellano, a low-income undocumented immigrant mother without health insurance, had a cough, which she attributed to a minor cold and treated as such. As her breathing difficulties went unresolved with normal home remedies, she sought medical attention at a free clinic that provided her some pharmaceuticals to treat it. When Arellano’s condition worsened, her family took her to the local emergency room, and she was immediately admitted for a severe case of pneumonia. After an eighteen-day hospitalization, Arellano was faced with a medical bill she was unable to pay.
The hospital where Arellano received care contracts with R&B Solutions, an Illinois-based Medicaid Advocacy firm, to assist individuals like Arellano with their Medicaid and other benefit program applications. Although she met the categorical and financial requirements for the Illinois Medicaid program, due to her citizenship status she could only qualify for alien emergency Medicaid benefits, which are a limited exception to the federal Medicaid ban on benefits for noncitizens. Arellano applied for emergency Medicaid and the Client Assessment Unit (CAU) evaluated her case three times. In its initial decision, CAU denied benefits on the basis that she had symptoms for approximately three weeks and her condition therefore was not of “sudden onset.” In its second decision, CAU denied on the basis that her condition was not a “sudden acute life threatening condition” and could have been treated at a doctor’s office. In its final decision, CAU again denied benefits on the basis of no sudden occurrence.
Dennis Brebner and Associates, legal counsel to R&B Solutions, appealed the benefit denial and its final administrative decision, but the State of Illinois’ Department of Human Services and Illinois Department of Healthcare & Family Services upheld the decision on the basis that Arellano had been experiencing a progression of symptoms before she sought treatment at the hospital. Therefore, her condition did not occur suddenly and unexpectedly. Even though the Circuit Court upheld the final administrative decision on appeal, the Second District Appellate Court reversed and remanded the decision on the basis that the “sudden onset” requirement contained in the federal emergency Medicaid regulation and the Illinois Administrative Code impermissibly alters the federal Medicaid statute, which does not require that emergency medical conditions be of “sudden onset,” but was incorporated as Illinois law and regulation into the policy manual of the Illinois Department of Human Services. The State elected not to appeal the decision to the Supreme Court.
When the Medicaid statute passed in 1965, it was silent on whether it provided benefits to undocumented aliens. However, in response to a 1986 federal court ruling that stated denying benefits to undocumented aliens violated the federal Medicaid statute, Congress incorporated restrictions into the Medicaid statute via the Omnibus Budget Reconciliation Act of 1986. For many years, undocumented aliens have used local emergency rooms as their primary access point to healthcare because the Emergency Medical Treatment and Active Labor Act (EMTALA) (Section 1867 of the Social Security Act) requires hospitals to render at least stabilizing treatment, regardless of ability to pay. There are only two limited exceptions to that rule. One exception is known as the Alien Emergency Medical Assistance Program, which provides coverage only if such care and services are necessary for the treatment of an emergency medical condition of the alien, including emergency labor and delivery, manifesting itself by acute symptoms of sufficient severity that the absence of immediate medical attention could result in placing the patient’s health in serious jeopardy, impairment, or dysfunction.
Brenda Manning, co-counsel on the Arellano case and Compliance Officer for R&B Solutions, said, “I would say the vast majority of our Alien Emergency (AE) cases in Illinois are denied because anyone who has symptoms for even a day or two before seeking treatment is denied due to lack of sudden onset, meaning the State is pretty much restricting AE to trauma type cases. It’s our position that the State of Illinois uses the ‘sudden onset’ criteria as a means of restricting coverage to those who had symptoms for any appreciable amount of time beyond a few hours, despite that upon presentation the patient’s condition clearly warranted emergency medical treatment.”
The State of Illinois has consistently and routinely denied Alien Emergency cases like Arellano’s for reimbursement, often times for vague misappropriations, such as a pre-existing or non-emergent condition. Although the Department of Human Services does have an obligation to tax payers to ensure that fraud and abuse do not rob a program of its funding, the department must make distinctions between non-emergent care that is not eligible for funding and emergent care that is. However, the guidelines the State was using for denials was expanding on the current law, not following it. Hospitals often found cases were commonly denied as not meeting a “sudden onset” requirement.
“[Illinois Attorney General] Lisa Madigan's office argued that the purpose of this was to discourage illegal immigration, which is absurd,” said Dennis Brebner, counsel and President of R&B Solutions. “The hospitals can't control immigration. There are up to one million undocumented immigrants residing in Illinois. I agree that people who are not lawfully in this country should not receive any taxpayer-supported public benefits. However, our standard as a civilized society does not allow us to let people die because of failure to administer emergency medical treatment. We have had hundreds of these cases and usually the State loses, but the State never appeals and continues to ignore the law. The strange thing to me is that Illinois could have received matching federal funds and we would have a better idea as to how many undocumented people are accessing the health care system in this State. Instead, we have lost hundreds of millions of dollars in matching federal funds and stuck the hospitals with the bill when they have no choice but to provide care. All this has done is shift costs onto our overburdened health care system and the citizens that rely on it for care.”
In 2002, the Center for Immigration Studies found the United States spent $4.7 billion to cover Medicaid and treatment for uninsured illegal immigrants, as determined by their study conducted in 2004. These unreimbursed medical care costs have caused 84 hospitals to close their doors in California alone, according to Dr. Madeleine Cosman in a 2005 article in the Journal of American Physicians and Surgeons.