Ill. League of Advocates for the Developmentally v. Ill. Dep't of Human Servs.

60 F.Supp.3d 856

Illinois League of Advocates for the Developmentally, Disabled, et al., Plaintiffs

v.Illinois Department of Human Services, et al., Defendants.

Case No. 13 C 1300

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

Signed July 21, 2014

Barton James O'Brien, Judith Schwartz Sherwin, Sarah R. Burky, Sherri L. Thornton–Pierce, Gabriel Reilly–Bates, Taft Stettinius & Hollister LLP, Megan Kelly McGrath, Kathleen Fitzgerald Howlett, Daniel Reza Saeedi, Shefsky & Froelich Ltd., Chicago, IL, for Plaintiffs.

Thomas A. Ioppolo, Laura Marie Rawski, Marni M. Malowitz, Sunil Shashikant Bhave, Office of the Illinois Attorney General, Chicago, IL, Patrick J. Boyle, Gunn and Gunn, Creve Coeur, MO, for Defendants.

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Court Judge:

Plaintiffs in this action have challenged Defendants' decisions to close a state-operated institution for the developmentally disabled and to assess its residents for potential transfers into community living arrangements. Plaintiffs contend that this conduct constitutes disability discrimination in violation of federal law, denies Plaintiffs and the purported class members equal protection, and deprives them of choice as required by the Medicaid Act.

In early January 2014, a three-day preliminary injunction hearing in this matter was conducted. The parties have since submitted their post-hearing briefs, as well as their proposed findings of fact and conclusions of law. For the reasons set forth below, Plaintiffs' motion for a preliminary injunction is denied.

FINDINGS OF FACT¹

Pursuant to Federal Rules of Civil Procedure 52(a)(2) and 65, we begin with a recitation of the facts pertinent to our analysis. Fed. R. Civ. P. 52(a)(2), 65. We rely on the parties' Stipulation of Facts (Dkt. No. 348), their proposed findings, the witnesses' written direct testimony submitted prior to the hearing, the transcripts of hearing testimony, the parties' exhibits, and, where necessary, our assessment of witness credibility. We also consider the parties' pre-and post-hearing briefs (including supplemental materials), and we bear in mind our prior evidentiary rulings. (See 12/5/13 Op. (Dkt. No. 321) (resolving motions in limine).) In large part, the critical facts are undisputed.

I. THE PARTIES AND RESIDENTS OF MURRAY

Plaintiffs include the guardians for several individuals who reside at the Warren G. Murray Developmental Center (“Murray”).

(Stip.¶ 1.) Murray is a state operated developmental center (“SODC”), a residential facility that provides housing and a range of services (known as “ICF–MR” services) to individuals with developmental disabilities, particularly those with severe and/or behavioral needs. (Id. ¶ 8.) Murray is located in Centralia and is one of seven SODCs operated by the State of Illinois. (Id. ¶ 9.) As of August 31, 2013, Murray was home to 233 residents, some of whom have lived there for decades. (Id. ¶ 10; see also Rule 30(b)(6) Decl. of Rita Winkeler ¶ 21 & Ex. (letters filed under seal) (Dkt.Nos.239–1, 240).)

Many of the Murray residents are nonverbal and medically fragile. (Winkeler 30(b)(6) Decl. ¶ 21 & Ex.; see also Decl. of Rita Winkeler ¶¶ 4–5 (Dkt. No. 241–1); 9/22/13 Decl. of William Henson ¶ 4 (Dkt. No. 241–10); 4/12/13 Decl. of Marsha Holzhauer ¶ 3 (Dkt. No. 241–9); 9/23/13 Decl. of Dr. Karen Kelly ¶¶ 5–6 (Dkt. No. 241–3); Rule 30(b)(6) Decl. of Rita Burke ¶¶ 10–12 (Dkt. No. 314–1); 9/21/13 Decl. of Janice Kerst ¶ 3 (Dkt. No. 241–5); 4/13/13 Decl. of Denise Schoppet ¶ 2 (Dkt. No. 241–8); 6/23/13 Decl. of Lori Demijan ¶¶ 2–5 (Dkt. No. 241–17).) As of August 31, 2013, eighty-four percent (84%) of Murray residents had severe or profound mental retardation range. (Stip.¶ 10.) Sixty-eight percent (68%) of the residents had a behavior intervention program, often requiring higher levels of staff supervision. (Id. (internal quotation omitted).) Some of the specific conditions found in the Murray population include mental illnesses, self-injurious and aggressive behaviors, elopement tendencies, seizures, autism, cerebral palsy, and pica disorder, which is characterized by an individual's efforts to ingest inedible objects. (Winkeler 30(b)(6) Decl. ¶ 21 & Ex.) These individuals often have the mentality of infants or toddlers, and they need help with the most basic functions of daily living, such as eating, toileting, bathing, and dressing. (Winkeler 30(b)(6) Decl. ¶ 21 & Ex.) Many thus require significant supervision to ensure their health and safety and, generally speaking, are extremely sensitive to any changes to their routines. (Id. )

In addition to several Murray guardians, the named Plaintiffs include, inter alia, two organizations: (1) the Murray Parents Association (“MPA”), which keeps guardians informed about and involved in events and issues concerning Murray; and (2) the Illinois League of Advocates for the Developmentally Disabled, which seeks to promote the welfare of people with developmental disabilities in the State of Illinois, particularly those living in residential placements. (Stip. ¶¶ 2–3; Winkeler 30(b)(6) Decl. ¶ 2; Burke 30(b)(6) Decl. ¶ 1.) Plaintiffs seek to represent a class comprised of developmentally disabled individuals who, at any time since January 1, 2011, currently reside or formerly resided at one of two SODCs—Murray and Jacksonville Developmental Center (“Jacksonville”)—and who oppose transfer from their SODC home to a community integrated living arrangement (“CILA”).² (Compl.¶¶ 1–4, 42–50, 58.)

Defendants include Michelle R.B. Saddler, the Secretary of the Illinois Department of Human Services (“DHS”), and Kevin Casey, the Director of the Division of Developmental Disabilities for DHS (“Division”), both of whom have been sued in their official capacities. Plaintiffs also sued Community Resource Alliance (“CR Alliance”), an organization owned and operated by Dr. Michael Mayer. (Stip.¶¶ 4–6.) Community Resource Associates (“CR Associates”), owned and operated by Derrick Dufresne, has a contract to provide services for DHS but is not a party. (Id. ¶ 7.)

II. THE DIVISION AND THE REBALANCING INITIATIVE

A. Services Offered by the Division

The seven Illinois SODCs currently serve approximately 1,800 residents. (9/23/13 Decl. of Kevin Casey ¶ 7 (Dkt. No. 245–1).) The SODCs constitute Intermediate Care Facilities for the Developmentally Disabled (“ICF/DDs”). (Id. ¶¶ 5, 7–8.) The Division also administratively oversees about 300 private ICF/DDs, which also provide ICF–MR services. (Id. ¶ 8.) The Division additionally serves approximately 22,000 individuals in community-based settings, through the Medicaid Home and Community Based Waiver Program (“HCBS Waiver Program”). (Id. ) Under the HCBS Waiver Program, Congress authorizes funding for states to serve Medicaid eligible recipients in the community—recipients who would otherwise qualify for institutional placement—so long as the average cost for community services does not exceed the average cost of institutional services. (Id. ¶¶ 8, 15.)

Pursuant to the HCBS Waiver Program, about 9,900 Illinois citizens live in CILAs, typically houses or apartments suitable for one to eight residents. (Id. ) The majority of CILAs in Illinois are operated by community providers, who are licensed through the DHS Bureau of Accreditation, Licensing, and Certification (“Bureau”). (Id. ¶ 29.) The Bureau inspects CILA providers every three years, and the DHS Bureau of Quality Management also performs random visits and evaluations. (Id. ) CILA residents are assigned a case manager from an independent case management agency (“PAS”), and the PAS agent must visit the resident at least four times a year. (Id. ; see also 1/7/14 Hr'g Tr. (Freeman) at 143.) When an individual transfers from an SODC to a CILA, they are also monitored by the DHS Bureau of Transition Services (“BTS”). (Casey Decl. ¶ 31.) BTS conducts periodic visits to the service providers throughout an individual's community placement. (Id. )

As for CILA caregivers, DHS requires providers to conduct background checks on potential employees. (Id. ¶ 29.) All CILA employees are required to complete 40 hours of classroom instruction, as well as 80 hours of on-the-job training. (Id. )

In addition to the roughly 25,000 citizens served by the Division, an estimated 23,000 people with developmental disabilities in Illinois are on a waiting list to receive services, of whom 6,000 are considered to be in emergency situations. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 29.) The Division lacks funding to offer services to these individuals. (Id. )

B. The Rebalancing Initiative

In February 2012, Illinois Governor Quinn introduced his Rebalancing Initiative (“the Initiative”), which aims to restructure the system so that it is less reliant on ICF/DDs and more reliant on integrated, community settings. (Stip. ¶ 14; Casey Decl. ¶ 9.) The initial goal of the Initiative was to reduce the State's SODC population by 600 residents by the end of the 2014 fiscal year. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 58–59.) Both Jacksonville and Murray were slated to close pursuant to the Initiative. (Stip. ¶ 14.)

According to Casey's undisputed testimony, the closing of such congregate facilities reflects the national trend. (Casey Decl. ¶ 7.) Eleven states have eliminated SODCs entirely. (Id. ) Illinois serves more developmentally disabled individuals in institutions than any other state, except for Texas and California. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 9–10.) The Initiative seeks to redirect the system towards community-based services for the developmentally disabled, the mentally ill, and individuals receiving services in nursing homes. (Id. )

This move away from institutionalization has several underlying bases. First, community programs are considered the best practice standard by the majority of professionals in the field. (Id. at 11–19; Casey Decl. ¶ 11.) Community programs have been developing for at least 50 years and are not a fad. (1/8/14 2 p.m. Hr'g Tr....