developmental centers who oppose mass transition to the community pursuant to a state plan known as every balancing initiative which we believe violate a little history about the case following the entry of a temporary restraining order in june of two thousand and thirteen in which the court found that the transition process which was currently underway in the murray developmental center was causing serious and irreparable harm to residents who had been transferred out the court said in an evidentiary hearing for consideration of a preliminary injunction hearing the court indicat in several rulings prior to the time of the evidentiary hearing that he wanted the hearing to focus on certain issues with respect to the a t m he indicated that he wanted to see the proof revolve around the question of whether there was intentional discrimination whether there was a violation the whole reason of all access for the residence and whether there was a disparate impact between two sections of developmentally disabled persons and i was and how many how many residents are there now marie your honor i believe there are currently two hundred and twenty four residents of mark what's the capacity that can pass it is i believe well over three hundred at the time that the litigation began and i believe it was somewhere around the two fifty range because the center had a continuing program in place where residents who were in the facility were evaluated on a yearly basis in order to determine whether or not they were appropriate for transition to the community which is one of the three legs of the almost dead analysis provided by the supreme court so there was cost there at the i believe at one state insisted on continuing to assess residence for a transition to an inappropriate placements in the community over and above the inch objections of the guardian in the summer immediately prior to the preliminary injunction the state pulled the started pulling the records of all of the residents on a sort of continuing basis beginning in august in order to assess these residen on a preliminary basis to try to continue to transfer them out of the community and there was evidence presented at the hearing that this was to be done in spite of the objections of the guardians and fact the guardian and strenuously to the records being reviewed and had notations in the file that had been placed in the file back in september of two thousand and twelve saying you may not review my ward for  transfer to the community because they are inappropriate to do so not only made you not review them but the process which you have described to us whereby you will be transferring them to the community is inappropriate and therefore you may not you may not evaluate and look at the records of our residence in spite of that notation which was on the files the files were taken by the state appointed contractor and were reviewed to continue this transition process which as i said was over and above the objection of the guardian now at trial at the evidentiary hearing the statement  showing that they would never transfer residence out of these facilities without parity and consent when in fact they were just moving along on their process to continue the possibility of transfer the assessment process harmful well the assessment process is harmful your honor because once i d d my resident has gone through an assessment that finds them inappropriate for state operate incomprehensible on that one guy i see f m r is intermediate care facility for the mental it used to be mentally retarded not referred to that way anymore but in any event counsel as defense counsel i understand that you and your clients object to an actual transfer we've got district court findings that that is not happening over objections of gar but i don't understand the need for an injunction to prohibit the state or its contractors from assessing patients and their appropriate levels of and facilities for purposes of discussion well your honor it's not for purposes of discussion it was for purposes of transfer by not not being transferred the question is whether there's irreparable harm that would justif the more than one question whether there's a reparable harm that would justify is that there could be every sanction of this process because if they start transferring you can ask for your temporary restraining order a preliminary injunction but as long as they don't transfer people harm what is the irreparable harm harm the well your honor in answer to that other than the transfer an assessment would you forget the transfer because they're not being transferred ok so i honor other than the transfer will forget the transfer for the moment the assessment of a state operated developmental center resident which finds that they are not appropriate to receive that level of services i something which goes in to their record and in the future makes it more difficult and perhaps impossible for them to ever get state operated  the the admission for i c f m r services in the state operated developmental centers is not an easy process it is a process that is very difficult and it is very difficult to obtain admission to one of these centers once there is something in the record that indicates that the potential resident in any way does not qualify the the whole system that is set up to determine services for these kinds of residence is going to find that they don't belong in a state operated developmental center and they're going to put them somewhere else which will be inappropriate at which point they will receive services that are not appropriate to their condition and which can result in all sorts of deterioration as in their condition but all of those in the future and all that could be addressed in a final judgment i don't understand the urgency of reliving their injunction intentions what are they told you they are unclear and they have not really told us anything other than they wanted to come here and oppose the preliminary injunction what could you just be specify exactly what relief you are seeking at this point seen what relief we are seeking is that the process which was in place at the time that we filed the appeal namely the process whereby the residents were being assessed you want assessment we want to stop the assessments we want to stop that process so that if in the future interest but i don't want the full argument i want to know exactly what relief you are seeking  assess that's correct anything else well that's that's the point at which that's what was going on at the time that day here in kuwait i thought you also sought an injunction blocking transfers over the objections of erroneous because we had a plethora of evidence in the records to show that every one of our guardian witnesses and the staff was affidavits were in the record uncontested indicated that the state had told them unequivocally that there was no choice that the process was going to continue and that transfer would happen even over the objection of the guardian he could and there was conflicting evidence w burden to bear in this court but your honor there was a tremendous amount of evidence the choice i did finally i did not stop in an assessment absurd it's information i get information if it's wrong i could counsel make see if i'm understanding your discrimination theory under the americans with disabilities act because if i understand it correctly it seems more like a claim that the state is failing to differentiate sufficiently between different groups of disabled folks based on their degree of disability is that right that's part of it your honor when what they have done is they have decided that people and s o d c s who are the most profoundly and severely disabled are going to be handled in one way and and they're going to be assessed for transfer into the community and deprived of the services they're currently getting and as so d c s where as other developmentally disabled persons who are in the system or even out of the system are not going to be assessed by the same process that they're already in community know they're not some of them are not even in the system some of them aren't all well and it but so why are your clients being treated worse than people who are being provided services only in their own homes because they want to like an argument that the state use treating everybody true similarly failing to take proper account of the truly profound disability that your clients are suffering from well that is part of the problem i don't but i don't understand how that's a discrimination argument i understand it may be a mistaken policy i understand the medicaid argument that you're making i think but i don't understand how it's discrimination well we believe it's discrimination because the only people who are going they put if they do them in the right way what does that mean the right way they could just say a prayer out of their lot of there's a lot of opinion that these community based facilities are better so suppose a state  we agree with that meant stanley it's cheaper and what have you and so they get rid of all the rest of the seas with that file late the constitution i don't think it would violate the constitution it would violate forty two u s c thirteen ninety six and see to see well wait a second whoa what what exactly would the violation of the violation would be that that section of the medicaid statute provides for a whole gamut of say that without without violating federal law i don't think the state can can say that without making institutional icy f m r services available it's not necessarily where they provided but those services must be provided and the statute itself talks about long term care facilities as one of the choices that is required to be available for so you think the violation of federal law i don't know i don't know whether there or not your honor and if they don't have them anymore and no one has challenged it i couldn't really answer that i thought i thought what you were actually telling us a moment ago was not that the state is required to own and operate these large s o d c's but they're required to provide proprium levels of service that's regardless of location that's correct it would be r and up under that fear even would it be permissible to close all the u s o d c s as long as appropriate services are being provided elsewhere as long as appropriate services are being provided elsewhere it was our evidence emitted that in the state of illinois such appropriate services were not being provided else you know for you know our in our decision making do you think we should be worried about the people who are on the waiting lists no i don't at this point i not because they are not in the system and this is something their needs may be as great right their needs may be is great but they are not in the system they need to be evaluated and if they are able to be cared for in a different setting that is something that the state has an obligation to do and if those people who are out of the system require the same c f m r services which were previously available in state operated developmental centers then they are to be eligible to receive those services would be an example of a service that could only be provided in an s o t c not in a community were identified a number of them from one of the two that came to the fore constantly was the issue of the availability of twenty four hour a nursing care which is available in a state operated developmental center and which is also available in something called an i c f t d which gets a potential substitute place for such services to be provided and which were not available to my clients at the time the because my clients were told they could not get the services that they were gay going in and have so d c they had to go into the community to to to for bed community based services all right so that twenty four hour nursing care is not something that was going to be available the other thing that was not going to be available was the issue of one on one care certain of the residence of us of d c s require to always be with a one on one person someone has to be there within arm's length all the time to prevent them from hurting themselves or someone else and this would never be available in in community based settings why do you say i would never be available while you're on a few there are plenty of people live at home and you know twenty four hours here living at home and having twenty four hour care is not the same thing at seventy one on one one on one means if there are two people in the room there is one staff to voted to one resident and if the other resident is having a problem they can't divert their attention from the person they're supposed to be one on one with in order to take care of the other person there was no situation that the state offered where there was going to be that availability at the most you would have to staff members and two to four residence there is no way that one of those persons was going to be one on one because if they were then the other two the other one or the other two or the other three had no one take care of them and that was never going to happen so it's a question of  impossibilities of being able to provide that kind of care unless you want to have one one staff member devoted to every person who is in the community and that's certainly not something that the state is ever going to factual misrepresentations from the very and your honor first regarding to the provision of one on one care in a community placement there is certainly evidence in the record and this is page c three ninety four of the record in  fact that still like some community some people placed in community arrangements so as receive twenty four hour one on one or even two on one care it's certainly not true that an individual cannot receive one on one or two on one care in a community placement we have evidence in the record directly to the contrary they soon will of the assessment process identifies those people specifically i think that there's not any question refuse to participate in the assessment process but the assessment well that the new assessment process but yes in the end assessment process that would be identified and those services would be provided absolutely additionally no one was told that they must go into the community insofar as there might have been some statements that were construed to mean that they were also explicitly told that no one has to go into a community placement commute placement even when confronted with this fact at the actual policeman injunction hearing the witnesses plaintiff's witnesses said well we didn't believe them we didn't trust their body language but the fact is that the evidence in the record shows that nobody has to take a community placement nobody would be transferred from marie center without the guardian's consent but you're planning to close it at the time the  knows but but if they're moved to yes no d c is that or no remote part of the state that's very inconvenient for their families and maybe less convenient but it's not up violation of federal law there's no theory that in fact courts have rejected any notion that you're entitled to a placement in a specific the syllabi within x miles of where you live but i also want to make clear a point that i think might have been getting lost a little bit earlier there is a difference though that there are that the broad differences in types of placement are institutional settings etc the sheer or institutional settings and community settings within the institutional setting category there's two currently no plans to close marie said so what do you think we need to decide and why i think that you your honor i think that you need a cite that a primary injunction is not warranted in this case because there is no irreparable harm that plaintiff faced there's no urgency there's no need to enter a primary injunction third there are different kinds of reasons for that there are one as would be the kinds of reasons the district judge gave yes it would be very different if the preliminary injunction is denied simply because the state no longer plans to go forward that's that's true your honor but i think because the state because the state currently does not plan to go for sure that there's shows that there's no urgency justifying the player injunction that's reason one reason to would be nobody's being transferred out guarding consent so there's no reason to do it reason three would be provide that care and then the directive to a proper place that can provide that specific staffing so one of these commute places will have any number of employees i'm present and at different times to to  supposed to save money right that is that is one of the reasons for doing it right but i just i guess i just don't quite understand how whole lot of very small facilities that need twenty four hour staffing and various levels are cheaper to run and want and where in the dead of night there maybe you maybe you can get away with the cleaner staff but there is a nurse on duty for example to deal with crises i understand and there was some testimony in the record working on the way the budgets break down and there is some sense to that it is complicated there that again there was expert testimony in the record about the way the economics does break down but you know what but yes it certainly stands to reason that you're going to be some maybe efficiencies by going this way but you make up for him in  other ways plus you have the quality of life in hansoms from a committee in place second guess the district court's factual findings but they make no effort to acknowledge or reconcile the overwhelming evidence in the record that in fact nobody would be transferred from murray cent jacksonville illinois and that fully closed and people were withdrawing consent transferred to some community placements other s o d c s or other private institutional level carers some people would not consent to anything and because the lights were going to be turned out in the doors were going to be locked they at that point needed to be transferred and then they so they were transferred to similar s n d c s so the same type of facility would point as you've already got experience with this process be transferred to commute placements if the guardian says no that will not happen nobody will be put in the community if the guardian does not consent the record is clear on that and for that reason all of their claims all of their large is the staff i don't have that those numbers on me right now it is a large staff certainly say it's an honor because it's a it's a large campus that is made up of i believe seventeen different buildings well and sell there is you know some staff in each building it's a very sizable workforce which twenty four hours yes yes it is a sizable around the clock workforce so why should we not just decide this case on two simple grounds assessment itself is not irreparable and the state no longer plans to close marie that though those simple grounds justify affirm without trying to evaluate whether the state could close murray in the future you may not can you don't intend to close it during the litigation not that you never and no had been a plan by the prior administration has now become a more academic question in the courts presently that is true so why should we decided if i any immediate reparable harm right now which would as a result of this would justify not deciding that and entering the order affirming on background that is true the fact is the i guess a difficult time in the right situation now because this is on and that for this court an interlocutory appeal i think it's certainly pro appropriate for this court to say there's no current plans right now nobody's being transferred you don't have to decide this and it goes back to the district to be decided i mean if you if assessment does not cause irreparable harm or violate federal law yes you know the state no longer intends to pursue the policy of closing or that the state's plans won't change tomorrow there are currently no plans but i can't give you any limit on that i personally that might need some factual development before a judge asked me to and then he can then determine whether to get into the m people are qualified to be eligible for the kind for services for the appropriate category of disability here and who are still on waiting lists over twenty thousand do you think that should figure in our the state operated developmental centers they are a higher level of service they require a higher level of staff and the i c f d d services are similar in the sense that they are institutional services nursing ability to say that the other thing and i wasn't sure i understood counsel's answer i think i have maybe i don't understand the benches question during question the number of persons waiting for services in the entire ice in the entire developmental disability program i believe is twenty thousand i don't think there are twenty thousand people waiting for the i c f m our services which are available as of d c s so i think that that is a bit different and that was one of our our elements of what we felt was discrimination because the people who were in need of services were undergoing an entirely separate process of institutional so i don't see anything about community based services or institution care it mentions community based care it doesn't say i don't think it creates a right to the hospital or you know when you see the well being this statute itself talks about order for that statute not to be violent and i don't understand that if the services provided a community based sillily the quality of the people and that quality of the nurses and not facilities and well but the services can only be provided in the for ladson issue that's a factual issue that's correct your honor but the  move on to our second case