Case: 1:13-cv-01300 Document #: 42 Filed: 04/15/13 Page 1 of 8 PageID #:713

IN THE UNITED STATED DISTRICT COURT FOR THE NORTHERM DISTRICT OF ILLINOIS
EASTERN DIVISION

ILLINOIS LEAGUE OF ADVOCATES FOR )

THE DEVELOPMENTALLY DISABLED; and )

MURRY PARENTS ASSOCIATION, INC.; and )

INDIVIDUALLY AND ON BEHALF OF ALL )

PERSONS SIMILARLY SITUATED:

)

RITA WINKELER, as Guardian for Mark

)

Schomaker and Mark Winkeler; KAREN KELLY, )

as Guardian for Eric Schutzenhofer; LAUREEN )

STENGLER, as Guardian for Wayne Alan Stengler;)

STAN KRAINSKI, as Guardian for Steven Edward )

Krainski; ELIZABETH GERSBACHER, as

)

Guardian for Charlie Washington and Linda Faye )

Higgins; BARBARA COZZONE-ACHINO, as )

Case No. 13 C 01300

Guardian for Robert Metullo; ROBIN PANNIER, )

as Guardian for Benjamin Pannier; JEANINE L. )

Hon. Marvin E. Aspen

WILLIAMS, as Guardian for John L Fuller Jr.; )

DAVID IACONO-HARRIS, as Guardian for

) STATEMENT OF INTEREST OF THE

Jonathan P. Iacono-Harris; DR. ROBERT

) UNITED STATES OF AMERICA

POKORNY, as Guardian for Robert James

)

Pokorny; and GAIL K. MYERS, as Guardian for )

Mark Andrew Wymore.

)

)

Plaintiffs,

)

)

vs.

)

)

PATRICK QUINN, as Governor of the State of )

Illinois, ILLINOIS DEPARTMETN OF

)

HUMAN SERVICES, MICHELLE R.B.

)

SADDLER, in her official capacity as Secretary )

of the Illinois Department of Human Services, )

KEVIN CASEY, in his official capacity as

)

Director of Developmental Disabilities of the

)

Illinois Department of Human Resources, and

)

COMMUNITY RESOURCE ALLIANCE,

)

Defendants.

)

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I. INTRODUCTION The United States respectfully submits this Statement of Interest pursuant to 28 U.S.C. § 5171 regarding Plaintiffs’ Motion for Preliminary Injunction, [Docket No. 9], in order to clarify to the Court the proper scope and application of the integration mandate of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132. The statute, regulations, and established precedent do not support the Plaintiffs’ claim that the ADA gives them a right to remain in a particular institution and to stop the State’s efforts to rebalance its service system toward community based care. Congress enacted the ADA in 1990 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Congress found that “historically, society has tended to isolate and segregate individuals with disabilities, and despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” Id. § 12101(a)(2). For these reasons, Congress prohibited discrimination against individuals with disabilities by public entities:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity , or be subjected to discr imination by any such entity.
1 Under 28 U.S.C. § 517, “[t]he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.”
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Id. § 12132. In passing the ADA, Congress sought to create strong national standards to address discrimination and to ensure that th e federal government played a “central role” in creating and enforcing those standards. 42 U.S.C. § 12101(b)(2) & (3).
The Attorney General issued regulations, as directed by Congress, 42 U.S.C. § 12124, to implement the ADA’s broad mandate to end the pervasive and ongoing segregation of persons with disabilities in all facets of life. See 42 U.S.C. §12101(a)(2). Title II’s integration regulation requires public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.103(d). 2 The “most integrated setting” means one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.…” 28 C.F.R. Pt. 35, App. B at 673. The Department has interpreted the integration regulation to prohibit the unnecessary provision of such services to persons with disabilities in segregated institutional settings, in which persons with disabilities have little to no opportunity to interact with non-disabled persons. See, e.g., “Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C.” at 3 (June 22, 2011), available at: http://www.ada.gov/olmstead/q&a_olmstead.htm. Similarly, the Supreme Court in Olmstead v. L.C., 527 U.S. 518 (1999), interpreted these regulations to mean that “[u]njustified isolation” of individuals with disabilities “is properly regarded as discrimination based on disability.” Id. at 597.
As the agency charged by Congress with enforcing and implementing regulations under Title II, the Department’s interpretation of both Title II and the integration regulation has been
2 Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, contains an identical regulation issued by the Attorney General. 28 C.F.R. § 41.51(d). These regulations have been read in tandem to provide similar protections to persons with disabilities. See Olmstead v. L.C., 527 U.S. 581, 591 (1999).
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accorded substantial deference. See Olmstead, 527 U.S. at 597-98; (“Because the Department is the agency directed by Congress to issue regulations implementing Title II, its views warrant respect.” (citation omitted); Pashby v. Delia, -- F.3d --, 2013 WL 791829 *10 (4th Cir. 2013) (“Because Congress instructed the DOJ to issue regulations regarding Title II, we are especially swayed by the DOJ's [interpretation of] ‘the ADA and the Olmstead decision’”) (internal citation omitted); M.R. v. Dreyfus, 663 F.3d 1100, 1117 (9th Cir. 2011) (same), opinion amended and superseded on other grounds, 697 F.3d 706 (9th Cir. 2012). The Department’s interpretation of the integration regulation must be upheld “unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997).
II. ARGUMENT The ADA Does Not Create a Right to Remain in a Particular Institution The State of Illinois currently plans to close two State Operated Developmental Centers (Jacksonville Developmental Center and the Murray Developmental Center) in fiscal year 2013 and shift resources towards expanding community based care.3 The Plaintiffs, who are the guardians of individuals residing in these institutions, are opposed to the closure of State Operated Developmental Centers (SODCs). The Plaintiffs argue that the ADA, an integration statute enacted to end the pervasive segregation of persons with disabilities, conveys a right to remain in a segregated institution, as opposed to a right to live in the community. See Plaintiffs’ Memorandum of Law in Support of their Motion for Preliminary Injunction, p. 19 (“Pls. 3 Plaintiffs’ Motion for Preliminary Injunction makes two assumptions, both that the state plans to close “all of Illinois’ SODCs without adequate and appropriate replacement services” and that such action violates Title II of the Americans with Disabilities Act, Pls. Memorandum, p 10. There is no indication that either of these assumptions is true; see State of Illinois, Department of Human Services, Division of Developmental Disabilities, Strategic Plan FY 2011-2017 at http://www.dhs.state.il.us/page.aspx?item=45085, and State of Illinois Fiscal Year 2013 Agency Budget Fact Sheets for the Department of Human Services, p. 18 www.state.il.us/budget/FY2013/FY13AgencyFactSheets.pdfShare.
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Memorandum”). Nothing in the ADA or its regulations, the Supreme Court’s decision in Olmstead, or any other case law supports this interpretation of the ADA and its integration mandate. Rather, the inverse is true.
In Olmstead, the Supreme Court concluded that the unjustified institutionalization and isolation of persons with mental disabilities violates the ADA.4 527 U.S. 581, 597 (1999). The Supreme Court reached this conclusion based upon two “evident judgments.” Id. at 600. First, the Court observed that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Id. at 600. Second, the Court noted that “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 601.
Plaintiffs make much of Olmstead’s statement that there is no “federal requirement that community-based services be imposed upon those who do not desire them.” 527 U.S. at 602. However, to read that sentence in Olmstead as creating a right to institutionalization would turn the ADA and its integration mandate on its head and impermissibly create a new right under the ADA that was never intended by Congress. Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (Congress must “unambiguously confer a right” to support a cause of action under §1983 or an implied right of action.) The ADA does not confer a right to remain in any given institution.
Moreover, Plaintiffs’ argument is inconsistent with established precedent that the ADA’s purpose is to prevent unnecessary institutionalization, not to require continued operation of a
4 States are required to provide community-based treatment for persons with mental disabilities when such services are appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. Olmstead, 527 U.S. at 607.
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state institution in which an individual plaintiff currently resides. 5 These courts have found that it does not violate federal law for states to close an institution. This is particularly true when a State is rebalancing their system of supports to people with disabilities away from expensive institutional care towards community care to use its resources to serve more people. See, Ricci v. Patrick, 544 F.3d 8, 17-18 n.8, 21 (1st Cir. 2008) (recognizing a State’s ability to close its state-operated facilities, particularly when “allocating its resources to ensure equitable treatment of its citizens,” and noting the ADA’s preference for community integration under the Olmstead decision); Richard C. v. Houstoun, 196 F.R.D. 288, 291-292 (W.D. Pa. 1999) (rejecting plaintiffs’ interpretation of Olmstead to require continued institutionalization when the three criteria Olmstead are not met and denying intervention); see also Baccus v. Parrish, 45 F. 3d 958, 961 (5th Cir. 1995); Lelsz v. Kavangauh, 783 F. Supp. 296, 298 (N.D. Tex. 1991), aff’d 983 F. 2d 1061 (5th Cir.); Messier v. Southbury Training School, 562 F. Supp. 2d 294, 338 (D. Conn. 2008), Alexander v. Rendell, 2006 U.S. Dist. LEXIS 3378, at *18-19 (W.D. Pa. Jan. 30, 2006).
5 States, like Illinois, that participate in Medicaid’s home and community-based waiver program must offer participants the choice of community-based or institutional services, which can be offered in a public institution (like a SODC) or a private institution at the option of the state. 42 C.F.R. § 441.302(d).
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III. CONCLUSION

For the reasons stated above, the United States respectfully requests that this Court find

that the Plaintiffs’ have no claim under the Americans with Disabilities Act.

Dated: April 15, 2013

RESPECTFULLY SUBMITTED,

GARY SHAPIRO United States Attorney

THOMAS E. PEREZ Assistant Attorney General

EVE HILL Senior Counselor to the Assistant Attorney General

ALISON BARKOFF Special Counsel for Olmstead Enforcement Civil Rights Division

s/ Patrick Johnson PATRICK JOHNSON Assistant United States Attorney 219 South Dearborn Street Chicago, Illinois 60604
Tel: (312) 353-5327 Patrick.johnson2@usdoj.gov

s/ Regan Bailey JONATHAN SMITH Chief MARY BOHAN Deputy Chief REGAN BAILEY VINCENT HERMAN Trial Attorneys Special Litigation Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 Tel: (202) 305-3113 Fax: (202) 514- 0212 E-mail: Regan.Bailey@usdoj.gov

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CERTIFICATE OF SERVICE This is to certify that I have on this day electronically filed the foregoing STATEMENT OF INTEREST OF THE UNITED STATES with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all parties in this matter via electronic notification or otherwise: Thomas A. Ioppolo Marni M. Malowitz Laura M. Rawski Assistant Attorneys General General Law Bureau 100 W. Randolph, 13th Floor Chicago, Illinois 60601 (312) 814-7198 Counsel for the Defendants Judy Sherwin Sherri Thornton-Pierce Sarah R. Burky Kathleen F. Howlett SHEFSKY & FROELICH LTD. 111 East Wacker Drive Suite 2800 Chicago, Illinois 60601 (312) 527-4000 Counsel for the Plaintiffs
/s/ Patrick Johnson_____ Patrick Johnson Assistant United States Attorney
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 Case: 1:13-cv-01300 Document #: 1 Filed: 02/19/13 Page 1 of 39 PageID #:1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ILLINOIS LEAGUE OF ADV OCATES FOR THE DE VELOPMENTALLY DISABLED; and MURRAY PARENTS ASSOCIATION, INC.; and INDIVIDUALLY AND ON BEHALF O F ALL PERSONS SIMILARLY SITUATED: RITA WINKELER, as Guardian for Mark Shomatier and Mark Winkeler; KAREN KELLY, as Guardian for Eric Schutzenhofer ; LAUREN STENGLER, as Guardian for Wayne Alan Stengler ; STAN KRAINSKI, as Guardian for Steven Edward Krainski ; ELIZABETH GERSBACHER, as Guardian for Charlie Washingto n and Linda Faye Higgins; BARBARA COZZONE-ACHINO, as Guardian for Robert Metullo ; ROBYN PANNIER, as Guardian for Benjamin Pannier; JEANINE L. WILLIAMS, as Guardian for John L. Fuller, Jr.; DAVID IACONO-HARRIS, as Guardian for Jonathon P. Iacono-Harris; DR. ROBERT POKORNY, as Guardi an for Robert James Pokorny; and GAIL K. MYERS, as Guardian for Mark Andrew Wymore.
Plaintiffs,

Case No. JURY DEMAND

vs.

ILLINOIS DEPARTMENT OF HUMA N

SERVICES and KEVIN CASEY, in his

official capacity as Di rector of Developmental

Disabilities; and

COMMUNITY

RESOURCE ALLIANCE,

Defendants.

COMPLAINT FOR DECLARATORY, INJUNCTIVE & OTHER RELIEF

Plaintiffs, the ILLINOIS LEA

GUE OF ADVOCATES FOR T HE

DEVELOPMENTALLY DISABLED; MURRAY PARENTS ASSOCIATION (“MPA”); and

individually and on behalf of all pers ons similarly situated, RITA WINKELER, as Guardian for

Case: 1:13-cv-01300 Document #: 1 Filed: 02/19/13 Page 2 of 39 PageID #:2

Mark Shomatier and Mark Winkeler; KAREN KELLY, as Guardian for Eric Schutzenhofer ; LAUREN STENGLER, as Guardian for Wayne Alan Stengler and Linda Faye Higgins ; STAN KRAINSKI, as Guardian for Steven Edward Krainski ; ELIZABETH GERSBACHER, as Guardian for Charlie Washington ; BARBARA COZZONE-ACHINO, as Guardian for Robert Metullo; ROBYN PANNIER, as Guardian for Benjamin Pannier; JEANINE L. WILLIAMS, as Guardian for John L. F uller, Jr.; DAVID IACONO-HARRIS, as Guardian for Jonathon P. Iacono-Harris; DR. ROBERT POKORNY , as Guardian for R obert James Pokorny; and GAIL K. MYERS, as Guardian for Mark Andrew Wymore, by their undersigned attorneys, state as follows for their Complain t for Declaratory, Injunctive & Other Relie f against Defendants, Illinois Department of Human Services and Kevin Casey, in his official capacity as Director of Developmental Disability; and Community Resources Alternatives, Inc. (“CRA”):

I. INTRODUCTION & OVERVIEW

1. The individual Plaintiffs are the leg al guardians of adult in dividuals who qualify

under state and Federal laws as persons deemed unable to care and provide for them

selves

including, but not limited to, the ability to live independently due to severe and profound mental

and/or physical disabilities (hereinafter, the “Individual Plaintiffs”). The Individual Plaintiffs sue

as legal guardians on behalf of their disabled charges and on behalf of all disabled persons

similarly situated.

2. Additionally included as a Plaintiff in this action are two Illinois non-profit

advocacy organizations, the Illino is League of Advocates for the Developm entally Disabled,

Inc., and the Murray Parents Association. These organizations support indi viduals with severe

and profound mental and/or physical disabilities, and also oppose the Stat e’s plan (the “Plan”)

under which the Defendants’ seek to close all State Operated Developm ental Centers for the

2

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Developmentally Disabled (“SODCs”) and, to that end, have already removed all the residents of one such facility (the Jacksonville Developm ental Center) and are imminently prepared to close another (the Murray Developm ental Center), with more to follow shortly thereaf ter. A true and accurate copy of the State Plan is attached hereto and incorporated herein by reference as Exhibit A.1
3. Collectively, the Individual Plaintiffs and Plaintiff-Class Members oppose the Plan because it is b eing undertaken against the legal guardians’ will and against the will of th e guardian-charges’ current caretakers. The State’s Plan is an ill- conceived and predeterm ined “cookie-cutter” outcome process that results in the profoundly disabled Individual Plaintiffs’ and Plaintiff-Class Members’ eviction from their safe and secure hom es of many years at SODCs, such as Murray Developm ent Center, and thrusts them into unsupervised, and in m any cases, unlicensed community placements where they have and will continue to suffer irreparable harms, including but not limited to risk of abuse and neglect, serious injury, and even death.
4. The Individual Plaintiffs and Plaintiff-Class Members thus respectfully seek relief from this Court to is sue the de claratory relief detailed below, and to immediately an d permanently enjoin the Def endants from completing the un ilateral and imminent closure of all SODCs across Illinois, includ ing but not lim ited to thos e SODCs in which each of the nam ed Individual Plaintiffs has resided and received medically necessary services for all or most of their lives. Among other relevant factors, the Indivi dual Plaintiffs and Plaintiff-Class mem bers have not ever agreed to relocate from the SODCs to the designated residential settings.
5. As further detailed herein, Federal and Illinois State laws including, but not limited to, the Americans with Disabilities Act of 1990, as amended, the Rehabilitation Act, and
1 Exhibit A is a version of the State’s Plan, date February 2012, which currently appears on t he State’s public website. To the extent that there are alleg ed to have been changes, updates or other modifications to this Plan, they are not available to Plaintiffs.
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Medicaid Program regulations, require the State of Illinois to continu ously provide adequate levels of medically necessary se rvices for disabled ind ividuals regardless of residential setting transitions from an institutional setting to a community residence.
6. In contravention of these laws, the Defe ndants have commenced to systematically shut down the SODCs and to limit State-provided residences and medically necessary services to the Individual Plaintiffs and to the Plain tiff-Class Members. The systematically planned SODC closings and the transition of the Individual Plaintiffs and P laintiff-Class Members to scattered one and tw o bedroom community residences, whic h are n either licensed medical facilities nor locations operated or s taffed with o n-site and licensed medical professionals, have resulted in irreparable and continuing harms to the Individual Plaintiffs and Plaintiff-Class members
7. The significant and irrepara ble harms suffered to date by each of the severe and profound medically disabled Individual Plaintiffs and Plaintiff-Class members will continue with the ongoing SODC closings. Those harm s include, but are not lim ited to, the State’s com plete elimination, without informed consent to parents or guardians, of certain categories of medically necessary services and/or providing woefully inad equate levels of m edically necessary services to the Indiv idual Plaintiffs and Plaintif f-Class Members in the community res idential settings. While cuts in the State’s budget m ay require fiscal austerity, forcing closure of all SODCs is the wrong priority and, as further detailed herein, Federal and Illinois St ate laws warrant the fashioning of immediate and permanent equitable relief for the Individual Plaintiffs and PlaintiffClass Members.
II. JURISDICTION 8. The United States D istrict Court ha s jurisdiction over the claim s against
Defendants pursuant to 28 U.S.C. § 1331 because the claim s arise under federal statutes. The
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Court may also exercise pendant jurisdiction over the state law cl aims, pursuant to 28 U.S.C. § 1367.

III. VENUE & JURY DEMAND 9. Venue is proper in the Northern Distri ct of Illinois pursuant to 28 U.S.C. §
1391(b) because the State’s plan ef fects guardians of developm entally disabled persons residing in the Nor thern District and also e ffects those who will be transf erred to SODCs and other community setting s within the Northern Dis trict and acro ss the State of Illinois. Plaintif fs demand a jury trial of this matter.

IV. RELEVANT FEDERAL & STATE STATUTORY FRAMEWORK

Americans with Disabilities Act

10. Congress enacted the Am ericans with Disabilities Act (“ADA”), as amended, 42

U.S.C. §§ 12101-12181, in 1990 “to provide a clear and comprehensive national mandate for the

elimination of discrimination agains t individuals with disabilities. ” Id. at §12101(b)(1) .

Congress found that “historically, society has tende d to isolate and segreg ate individuals with

disabilities, and, despite som e improvements, such forms of discrim ination against individuals

with disabilities continue to be a serious and pervasive

social problem.” 42 U.S.C.

§ 12101(a)(2). For those reasons, Congress prohibi ted discrimination against individuals with

disabilities by public entities:

[N]o qualified individual with a disa bility shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program s, or activities of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132 (emphasis provided).

As directed by Congress, the Attorney Genera l issued regulations implementing Title II,

which are based on regulations issued under secti on 504 of the Rehabilitation Act, 29 U.S.C. § 5

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794(a). The ADA Title II regulations require public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d) (emphasis provided).
**** Section 504 of the Rehabilitation Act 11. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (hereinafter, “Section 504”), prohibits discrimination against individuals with disabili ties by any program or activity, including any departm ent or agency of a State government, receiving Federal financial assistance. 29 U.S.C.§ 794(a) and (b). “No otherwise qualified indi vidual with a disability . . . shall, solely by reason of her or his disability, be excluded f rom participation in, be denied the benefits of, or be subjected to discrimination under any progra m or activity receiving Federal financial assistance. . . .” 29 U.S.C. § 794; 45 C.F.R. §§ 84.4(a), 84.4(b) (1) (i), (iv) and (v99); 84.4(b) (2); 84.52(a)(1), (4) and (5). 12. Section 504 requires that state and local governments afford protected individuals with disabilities related services, program s and activities in “th e most integ rated setting appropriate to the needs of qualified individu als with disabilities.” 28 C.F.R. § 45.51(d) (emphasis added). That is, federally funde d state governm ents and agencies must m ake reasonable modifications to policies, practices and procedures to avoi d discrimination on the basis of disability, including the elim ination of services deemed necessary and appropriate to meet the needs of the qualified individual with disabilities. 29 U.S.C.§ 794(a).
****
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The U.S. Supreme Court’s “Olmstead v. L.C.” Requirements for ADA Title II Covered Services to Individuals with Disabilities. 13. Fourteen years ago, the Supreme Court applied the ADA Title II mandates to hold that Title II prohibits the unjustified segreg ation of individuals with disabilities. Olmstead v. L.C., 527 U.S. 581 (1999). Im portantly, the Court held that public entities are required to provide community-based services to persons with disab ilities when (a) such s ervices are appropriate; (b) the affected persons do not oppose community-based treatm ent; and (c) community-based services can be reasonably ac commodated, taking into account the resources available to the entity and the needs of others who are receiving disability services from the entity. Id. at 607.
**** 42 U.S.C. § 1983 14. “Every person who, under color of any stat ute, ordinance, regulation, custom , or usage, of any State or Territory or the District of Colum bia, subjects, or causes to be subjected, any citizen of the United States or other person w ithin the jurisdiction thereof to the deprivation of any rights, priv ileges, or immunities secured by the Con stitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailab le. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be cons idered to be a statu te of th e District of Columbia. “
****
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The Federal Medicaid Program & State Waivers 15. Title XIX o f the Social Security Act, 42 U.S.C. §§ 1396-1396 w-2 (herein after, Medicaid Act”), e stablishes the M edicaid Program. The objective of the Medica id Act is to enable each State to furnish m edical assistance to families with children and to ag ed, blind, or disabled individuals whose incomes and resources are insufficient to meet the costs of necessary medical services and to f urnish “rehabilitation and other servic es to help such f amilies and individuals attain or retain capability for independence or self-care.” 42 U.S.C. § 1396. 16. The Medicaid Program typically does not dire ctly provide health care services to eligible individuals, nor does it provide benef iciaries with money to purchase health care directly. Rather, Medicaid is a vendor paym ent program, wh erein Medicaid participating providers are reimbursed by the Program for the services they provide to recipients. 17. Medicaid is a cooperative federal-stat e program designed to cover n ecessary medical services for poor people. Participation in the Medicaid program is not mandatory for the states, but once they choose to participate, they must operate their program s in conformity with federal statutory and regulatory requirements. 42 U.S.C. § 1396a. 18. Each state choosing to participate in the Medicaid Program must designate a single state agency which is responsible for ad ministering the Program. 42 U.S.C. § 1396a (a) (5). 19. Medicaid law requires choi ce. The receipt of Medi caid funding is contingent upon a state offering choice of ICF s/MR or Hom e and Community Based Services (“HCBS”) waivers. A Medic aid HCBS waiver sha ll not be granted unless the stat e provides satisfactory assurances that:
[S]uch individuals who are determ ined to be likely to requ ire the level of care provided in a hospital, nursing facility or intermediate care facility for the mentally retarded are informed of the feasible
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alternatives, if available under the waiver, at the choice of such individuals, to the provision of inpatient hospital, nursing facility services or services in an intermediate care facility for the mentally retarded. 42 U.S.C. § 1396n(c)(2)(C). 20. When a recipient is determined to be likely to require the level of care provided in an ICF/MR, the recipient or his or her legal representative must be: (1) Informed of any feasib le alternatives available under the waiver, and (2) Given the choice of either institutional or home and community-based services. 42 C.F.R. § 441.302. 21. The Plan must furnish CMS with suffici ent information to support assurances required by § 441.302, including its “plan for inform ing eligible recipients of the feasible alternatives…institutional services or hom e and community-based services.” 42 C.F.R. § 441.303(d). 22. Illinois has provided the re quired assurances to re ceive HBSC waivers under Medicaid in the Illinois Administrative Code: Section 120.80 Program Assurances In addition to program requirements specified in other Sections of this Part, assurances for the Medicaid home and community-based services waiver program will include:
**** b) Informing individuals of choice All individuals requesting program services shall be given a choice of alternative services through the PASA RR process. The choice shall include both ICF/MR and community-based services. 59 Illinois Admin. Code § 120.80.
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Additionally, the Illino is Administrative Code’s eligibility determinations for its

Medicare home and community-based services waiver program provides:

Section 120.150 Eligibility Determination

****

c) Individuals or guardians sh all be given the choice of receiving State-operated developmental center, community ICF/MR or Medicaid home and community-based services.

59 Ill. Admin. Code § 120.150.

In accordance with 42 U.S.C. § 1396n(c)(2)(C) and 42 C.F.R. § 441.302, Illinois gave the

required assurances to CMS in its Application for the HCBS Waiver:

D. Choice of Alternatives: The State assures th at when an individual is determined to be likely to require the level of care specified for this waiver and is in a target group specified in Appendix B, the individual (or, legal representative, if applicable) is:

1. Informed of any feasible alternatives under the waiver; and,

2. Given the choice of either institutional or hom community-based waiver services.

e and

Appendix B specifies the proced ures that th e State em ploys to en sure that individuals are inform ed of feasible al ternatives under the wa iver and given the choice of institutional or home and community-based waiver services.

V. THE PARTIES Plaintiffs’ Class Definition
23. All severe and profound developm entally delayed adult individuals who reside presently, or resided in the pa st, in a State Op erated Developmental Center (“SO DC”) on or before January 2011 to the present date or later, and who have b een advised that they will be transferred to, or have already been transferred to, a two-four bedroom residential community housing setting (hereinafter collectively referenced as the “Plaintiff-Class Members”).

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Institutional Plaintiffs 24. Plaintiff Illinois League of Advocates for the Developm entally Disabled (ILADD) is an Illinois Not For Prof it Corporation, principally located in River Grove, Illinois, the mission of which is to advocate for and educate the citizens of Illin ois about th e needs of severely developmentally disabled persons in the State of Illinois who reside in SODCs. IL-ADD has amongst its membership persons who are guardians and next of kin of persons who reside in the SODCs located in the Northern District of Illinois and who would have the right to bring this action on their own behalf on an individual basis 25. Plaintiff Murray Parents Association (the “MPA”) is an Illinois Not F or Profit Corporation, principally located in Centrella, Illinois, the mission of which is to prom ote the general welfare of the residents of the Murray Center and foster the development of programs on their behalf. MPA has am ongst its membership persons who are guardians and next of kin to persons who reside in the SODCs, are resident in the Northern District of Illinois and would have the right to bring this action on their own behalf on an individual basis.
Individual and Class Representative Plaintiffs 26. Rita Winkeler (“Ms. Winkeler”) is a re sident of Centralia, Il linois. She is a member of the board of IL-ADD and is a member and the president of the MPA. Ms. Winkeler is also the legal guardian of her brother, Mark Shomatier, and her son, Mark W inkeler. Ms. Winkeler has m ade her opposition known to IDHS and CRA. She, along with other MDC guardians, has been informed by IDHS and Defenda nt CRA that if she pe rsists in her opposition they will ev ict her son from MDC agains t her will, that she will be responsible for finding alternative placement for him or if she cannot find alternative placem ent that IDHS will place him in a placement of their choosing whether she agrees or not. ( See Affidavit of Rita Winkeler, Group Exhibit B attached hereto and incorporated in by reference)
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27. Karen Kelly (“Ms. Kelly”) is a resident of O’Fallon, Illinois. She is a member of MPA and is the legal guardian of her son, Eric Schutzenhofer. He is 39 years of age and has the mental age of thirty m onth of age. He has been a resident of MPA since 1991. Ms. Kelly opposes the placement of Eric into the comm unity because the State cannot adequately provide medically necessary services to her son in th at setting and, additionally, because Eric will b e at risk for abu se and neg lect given the pervasiveness of his disability. Ms. Kelly has m ade her opposition known to IDHS and CRA. She, along w ith other MDC guardians, has been informed by IDHS and Def endant CRA that if she pers ists in h er opposition they will evict Eric from MDC against her will, that she will be responsible for finding alternative placement for him or if she cannot find alternative placement that IDHS will place him in a placement of their choosing whether she agrees or not. (See Affidavit of Ka ren Kelly, Group Exhibit B, attached hereto and incorporated in by reference)
28. Laureen Stengler (“Ms. Stengler”) is a re sident of Crete, Il linois. She is a member of MPA and is the legal guardian of Wayne Alan Stengler. He is 55 years of age and has the mental age of 9 m onths. He has been a resident of MPA since May of 1965. She opposes the placement of W ayne into the community because the Stat e cannot adequately provid e medically necessary services to h er son in that setting and, additionally, because Wayne will be at risk for abuse and neglect given the pervasiveness of his disability. Ms. Stengler has made her opposition known to IDHS and CRA. She, along w ith other MDC guardians, has been informed by IDHS and Def endant CRA that if she persists in her opp osition they will evict W ayne from MDC against her will, that she will be responsible for finding alternative placement for him or if she cannot find alternative placement that IDHS will place him in a placement of their choosing whether she agrees or not.
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29. Stan Krainski (“Mr. Krainski”) is a resident of Niles, Illinois. He is the guardian of Steven Edward Krainski. Steven is 53 years of age and has the m ental age of 18 months. He has been a resident of the Anne Kiley Center since 1975. Mr. Krai nski opposes the placement of Steven into the comm unity because the State cannot adequately provide medically necessary services to his son in th at setting and, additionally, because Steven will be at risk for abuse and neglect given the pervasiveness of his disability. Mr. Krainski is informed and believes that the State intends to close Anne Kiley Developmental Center. He is further informed that pursuant to the State Plain for closure, he will have to move Steven to a placement against his will or that he will be resp onsible for finding alternative placem ent for him or if he cannot find altern ative placement that IDHS will place him in a placement of their choosing whether he agrees or not.
30. Elizabeth Gersbacher (“Ms. Gersbacher”) is a resident of Carbondale, Illinois. She has been the legal guardian of Charlie Washington since the 1980s. He is 45 years old has an IQ under 50 and has been a resident of Choa te Developmental Center (CDC) since 1996. Among other m anifestations of his disability, Ch arlie has been diagnosed with aggressive, bipolar and m anic behaviors, and has tried an d failed in comm unity placement on num erous occasions. Charlie’s medical history evidences that he can only be cared for safely and properly in an SODC. Ms. Gersbacher is also the guardian for Linda Faye Higgins who is 44 years of age with an IQ of under 50 a nd is a resident of CDC. Ms. Ge rsbacher has tried the community for her wards on numerous occasions in the past an d has learned they can o nly be cared for safely and properly in an SODC. She opposes the placement of Charlie and Linda into the community because the State cannot adequately provide m edically necessary services to either o f the wards in that setting and, additionally, because they will each be at risk for abuse and neglect given th e pervasiveness of their respectiv e disability. Ms. Gersbacher has made her opposition known to
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IDHS and CRA. She is informed and believes that Defendant DHS and Defendant CRA will next turn the Pla n to the Choate Develo pmental Center and th at Defendants will evict Charlie an d Linda from CDC against her will, th at she will be responsible for finding alternative placem ent for him or if she cannot find alternative p lacement that IDHS will place him in a placem ent of their choosing whether she agrees or not.
31. Barbara Cozzone-Achino (“Ms. Cozzone-Achino”) is a resident of Cherry Valley, Illinois and is the legal guardian of Robert Metullo, who is 40, a nd Michael Metullo who is 43. Both have an IQ below 50 and have been reside nts of Mabley Developm ental Center (Mabley) since 1998. Ms. Cozzone-Achino has tried the comm unity for her wards on num erous occasions in the past and has learned they can only be cared for safely and properly in an SODC due to the nature and extent of their resp ective disabilities. Ms. Cozzone-Achino opposes the placement of Robert and Michael into the co mmunity because the State cannot adequately provide medically necessary services to her wards in th at setting and, additionally, because each of her wards will be at risk f or abuse and neglect given the perv asiveness of their res pective disability. Ms. Cozzone-Achino has made her op position known to IDHS and CRA. She is inf ormed and believes that Defendant IDHS and Defendant CRA will e ventually turn the Plan to Mabley and that Defendants will ev ict Robert and Michael from Mabley against her will, that she will be responsible for finding alternative placement for them or if she cannot find alternative placement that Defendants will place them in a placement of their choosing whether she agrees or not.
32. Robyn Pannier (“M s. Pannier”) is a reside nt of Peoria, Illino is and the legal guardian of Benjamin Pannier, a developm entally disabled adult who was residing at the Jacksonville Developmental Center (JDC) during the time period relevant to this complaint. She was forced to transf er her ward into a comm unity setting in spite of the fact he has not be en
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successful therein before. Ms. Pa nnier knows that the St ate cannot adequately provide medically necessary services to her ward in th at setting and, additionally, knows th at Benjamin will be at risk for abuse and neglect given the pervasiveness of his disability.
33. Jeanine L. Williams (“Ms. Williams”) is a resident of St. Louis, Missouri and the legal guardian of John L. Fuller, Jr., a developm entally disabled adult who was residing at the JDC during the time period relevant to this complaint. Ms. Williams’ ward was transferred away from the JDC to a CILA (Community Integ rated Living Arrangem ent) located in Illinois, but thereafter was returned to JDC af ter the CILA refused to retain him following a behavioral incident (the aforementioned clients of JDC are referred to herein as the “JDC Clien ts”). Ms. Williams’ ward subse quently has been trans ferred out of JDC against h is will; pu rsuant to Defendants’ plan her ward will aga in be forced into the co mmunity where he will be at risk f or abuse and neglect.
34. David Iacono-Harris (“Mr. Ia cono-Harris”) is a resident of Springfield, Illinois and is the legal guardian of Jonathon P. Iacono -Harris, a developm entally disabled adult who was residing at the JDC during the tim e period relevant to this complaint. Mr. Iacono-Harris was forced to tr ansfer his ward into a community setting in spite of the fact he has not been successful therein before. Mr. Iacono-Harris believe s that Defendants’ Plan has put his ward at risk for abuse and neglect.
35. Dr. Robert Pokorny (“Dr. Pokorny”) is a resi dent of Aurora, Illinois and is the legal guardian of Robert Jam es Pokorny, a devel opmentally disabled adult who was residing at the Jacksonville Developmental Center (JDC). He was f orced to tr ansfer his ward into a community setting in spite of the fact he has not been successful therein before and she believes that Defendants’ Plan has put her ward at risk for abuse and neglect.
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36. Gail K. Myers is a resident of Elburn, Il linois and is the legal guardian of her son, Mark Andrew Wym ore, a 46 year old developm entally disabled adult who has resided at Fox Developmental Center (FDC) for 32 years. She has tried the community for her son on numerous occasions in the past an d has learned he can only be cared for safely and properly in an SODC. She opposes the placement of Mark into the community because he will be at risk for abuse and neglect and has m ade her opposition known to IDHS and CRA. She is inform ed and believes that Defendant IDHS a nd Defendant CRA will ev entually turn the Plan to FD C and that Defendants will evict M ark from FDC against her will, that she will b e responsible for finding alternative placement for them or i f she cannot find alternative placement that Defendants will place them in a placement of their choosing whether she agrees or not.
Defendants 37. Defendant Illinois Department of Human Services, Divis ion of Developmental Disabilities (“IDHS”) is a state agency organized under the la ws of Illinois responsible for the provision of services to the developm entally disabled in Illinois. It m ust provide those service s pursuant to the laws of Illinois and the United States and regulations promulgated thereunder and also pursuant to the Illin ois State Medicaid Plan and the Waiver as to the provision of services for the developmentally disabled as approved by the Center f or Medicare and Medicaid Services of the United States. ID HS is the agency which has crea ted and is attempting to im plement the State Plan. Attached hereto as Exhibit A is a version of the Plan dated February 12, 2012. The Plan as written and as implemented violates various Federal and I llinois State laws and regulations. 38. Defendant Community Resource Alliance is a business entity hired by Defendant IDHS to develop and implem ent the Plan pursuan t to which Defendant IDHS seeks to close all
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the SODCs in Illino is and to te rminate all ins titutional services in p rovided thereby to th e developmentally disabled.
39. Defendant Jacksonville Developmental Center is an Illinois St ate operated entity, located in Jacksonville, Illinois and is one of the first institution from wh ich all residents hav e been removed pursuant to Defendants’ Plan.
40. Defendant Murray De velopmental Center is an Illinois State oper ated entity, located in Centra lia, Illinois, is one of the f irst institution from which all residents have been removed pursuant to Defendants’ Plan.
41. Defendant Choate Developmental Center, located in Anna, Illino is, is an Illinois State operated entity, a nd is one o f the f irst institution from which all r esidents have bee n removed pursuant to Defendants’ Plan.
42. Defendant Mabley Developm ental Center is an Illinois State operated entity, located in Dixon, Illinois, is one of the first institution f rom which all residents have been removed pursuant to Defendants’ Plan.
43. Defendant Shapiro Developm ental Center is an Illino is State op erated entity, located in Kankakee, Illinois, is one of the first institution f rom which all residents have been removed pursuant to Defendants’ Plan.
44. Ludeman Developmental Center is an Il linois State operated entity, located in Park Forest, Illinois, and is one of the f irst institution from which all res idents have been removed pursuant to Defendants’ Plan.
45. Fox Developmental Center is an Illinois State operated entity, located in Dwight, Illinois, and is one of the first institution from which all residents have been removed pursuant to Defendants’ Plan.
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46. Kiley Developmental Center is an Illinois State operated entity, located in Waukegan, IL, and is one of the first institution from which all residents have been rem oved pursuant to Defendants’ Plan.
VI. BACKGROUND FACTS 47. In February, 2012, as a m eans to contend with the State’s $13 billion deficit,
Governor Quinn announced his intention to close two SODCs by October 31, 2012 (the Jacksonville Developmental Center (“Jacksonville” or “JDC”), and by October 31, 2013 (Murray in Centralia, Illinois), and on inform ation and belief, to close all rem aining SODCs soon thereafter.
48. On June 14, 2012, Governor Quinn signe d a package of legislation which included $1.6 billion worth of Medicaid cuts endangering the poorest and neediest of the State’s residents, and in particular, individuals with severe and profound developmental disabilities.
49. The signing of the “Sav e Medicaid Access and Resources T ogether (“SMART”) Act, Public Act 097-0689, slashed an annual $2 40 million that provided critical funding to State nursing homes and hospitals and results in the planned closure of SODCs in Illinois.
50. On October 30, 2012, the Illinois Health Fa cilities and Services Review Board (“IHFSRB”), over ob jections from the Individual Plaintiffs, and representatives of other similarly situated individuals with developm ental disabilities, and against the recom mendations of IHFSRB’s own staff, issued its decision to close JDC.
51. In the weeks that followed the decision, IDHS first requested and received an extension of the closu re date from November 21, 2012 to December 3, 2012. Un able to meet even the revised closure date (by completing all the steps in its own process), IDHS instead fasttracked the process to r elocate all of the rem aining JDC residents to other locations – despite
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having emphatically testified to th e IHFSRB that the o riginal November 21st closure date provided enough time and that if necessary, they were prepared to follow the IHFSRB’ s procedures to keep the f acility open – with appropriate staff – as long as necessary to ensure the safe, sound and reasonable transitions.
52. Instead, IDHS abruptly m oved 30+ resi dents, inclusive of the Individual Plaintiffs’ and Pl aintiffs’ Class Members, t o other SODCs in a matter of days pr ior to th e December 3, 2012 closure, many as temporary admissions, thus ensuring continued infliction of transfer trauma in the future, when they will undoubtedly be moved again.
53. Critically, the budget cuts im plemented as of J uly 1, 2012, have caused and will cause the eventual elim ination of services for the Individual Plain tiffs and Plaintiffs’ Class Members, as well as the imminent closure of all Illinois SODCs. Indeed, on information belief, it is the State’s intention to close all o f Illinois’ SODCs despite the fact that Illinois residents now living in SODCs, inclusive of the Individual Plaintiffs’ and Plaintiffs’ Class Members, will have no appropriate placement.
54. In the absence of an injunction, the indi vidual Plaintiffs and Plaintiffs’ Class members will be irrepa rably harmed by the closure of SODCs. Many residen ts of SODCs, including the individual Plaint iffs and Pl aintiffs’ Class members, are inc apable of living independently in community-based settings. See Affidavits, attached as Group Exhibit B and incorporated herein by refe rence. Additionally, docum ents provided by the JDC Closure Advisory Committee indicate that as of m id-September 2012, 47 individuals, inclusive of the individual Plaintiffs and Plaintiffs’ Class member, had been moved out of JDC. Among those 47, over a two m onth period there were 4 police en counters, or 8.5%. Ov er a 4 month period, there were 14 hospital admissions and/or ER visits-- nearly 30% of the transitioned.
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55. The harm in this instance is p articularly irreparable and imm inent. On information and belief, the closure of JDC and the imminent closure of Murray show that Defendants plan is to p ush ahead to close all Illinois SO DCs without adequate replacem ent services.
56. Services offered by the SODCs are necess ary and critical to the residen ts’ physical well-being. An interruption in care, even if temporary, is more likely than not to have serious consequences on the health and well-being of the profoundly disabled. While alternative services may be available to replace the SODC se rvices at issue, Defendants have admitted that if their community-based placement fails, residents may have to seek services in oth er states and they (the Defendants), can only speculate about whether that State will b e able to p rovide equivalent services as mandated by federal laws.
57. Defendants have not met their legal burde n under applicable federal and state laws, as further detailed below, to ensure that more than a theoretical availability of replacement services will exis t if they eliminate all SODC servic es. W hile Defendants’ plan may provide some alternative services, CRA has not dem onstrated that its community-based setting approach will be adequate for the severely and profoundly disabled in the following ways:
(a) Defendants have not demonstrated any assurance of an adequate transition of available and neces sary services to Plaintiffs and others sim ilarly situated, by transitioning to properly staffed and licensed homes;
(b) Defendants have not dem onstrated that the S tate is ab le to, and will, provide equivalent or a dequate local licensed provider s in transitioning from SODCs to community settings;
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(c) Defendants have not dem onstrated that the S tate is ab le to, and will, inform Plaintiffs’ guardians in ad vance of transition and, afterwards, provide Plaintiffs with a coordinated program of supervision in its plan for community placement. At best, De fendants have vaguely allud ed to Plaintiffs’ guardians that licensed a nd/or unlicensed providers will “com e and go” as needed, not taking into acc ount for the alm ost certain level of emergencies that will ar ise when individuals used to very str ict regiments are placed in a freer less supervised setting;
(d) Defendants have not dem onstrated that the S tate is ab le to, and will, accommodate Plaintiffs and others s imilarly situated with placement in an ICFDD, where following transition it is evident that they cannot survive and thrive in a community-based setting.
(e) Defendant has not dem onstrated that the State is able to, and will, ensure that individuals who cannot survive and thrive in a community-based setting will have a saf ety net option to return to a facility with equivalent services in Illinois.
(f) Finally, Defendants have not de monstrated that the State is able to and will ensure that money will be av ailable for the payment of the providers of such services in the community beyond one year after placement.
VII. PLAINTIFFS’ CLAIMS
COUNT I: VIOLATION OF THE AMERICANS WITH DISABILITIES ACT OF 1990, as amended
(Against all Defendants)
58. The Individual Plaintiffs and Plaintiff-Class members incorporate by reference the
allegations in paragraphs 1-49 of the Complaint, above, as if set forth in Count I.
59. The ADA was enacted in 1990 to “provide a clear and comprehensive national
mandate for the elimination of discrimination against individuals with disabilities.” (42 U.S.C. §
12101(b)(I)). Title II of the ADA prohibits discrimination in access to public services by
requiring that “no qualified individual with a disability sh all, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs, or activities of
a public entity, or be subjected to discrimination by any such entity.” (42 U.S.C. § 12132).
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60. The Defendants’ plan violates the Title II of the ADA as follows: (1) Defendants are discriminating against the Indi vidual Plaintiffs, as well as th e Plaintiff-Class Members, as illustrated in the attach ed Plaintiffs’ Affidavits attached as Group Exhibit B and incorporated herein by reference, by targeting developmental disabilities for greater reductions in funding than other disabilities; (2) Defendants are preventing the Individual Plaintiffs, as well as the PlaintiffClass Members, as illustrated in the attached Plaintiffs’ Affidavits attached as Group Exhibit B and incorporated herein by referen ce from receiving services that are as effectiv e as those provided to individuals with other disabilities; (3) Defenda nts’ reduced funding creates a substantial risk tha t the Individual Plaintiffs, as well as the Plain tiff-Class Members, as illustrated in the attach ed Plaintiffs’ Affidavits attached as Group Exhibit B and incorporated herein by r eference, will not b e able to live s afely in “th e most integrated s etting;” and (4 ) Defendants are limiting the number of accessible community residential settings available to the non-ambulatory Individual Plaintiffs and the Plaintiff-Class Members.
61. Defendants’ closure of the SODCs leaves Plaintiffs with no com parable and appropriate choice for the safety-net services provided by SODCs. Indeed, the complete closure of all SODCs evidenc es the Defendants illegal intent and prac tice to p resumptively and unilaterally conclude that all of the Individual Plaintiffs and Plaintiff-Class Members are eligible for community-based placement, rather than serv ices that may only be offered adequately for each individually assessed Plaintiff through an SODC setting.
62. To that end, the Defendants have alr eady closed SODCs i n which som e of the Individual Plaintiffs a nd Plaintiff-Class Members previously resided, and continue to do so pursuant to the State’s Plan, currently focuse d on closing MDC, without the construct or
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implementation of any m eaningful and effectiv e process consideration of individualized assessments of their individual service needs.
63. Defendants have proposed, and are curre ntly utilizing a t MDC, a purported “assessment process,” which on its face is entirely inadequate and incapable of a meaningful and effective implementation with re spect to th e Individual Plaintiffs a nd the Plaintiff-Class Members, all of whom are adul ts with profound developm ental disabilities that render them cognitively in the age-range of infant-toddlers or, at best, a young children.
64. The inherent flaw in Defendants’ purpor ted assessment process is illustrated a s follows: A January 3, 2012 e mail communication from Mark Doyle (“Doyle”), T ransition of Care Project Manager, Office of the Governor, JRTC, to Plaintiff-guardian, Rita Winkeler, described the State’s purported assessm ent process as designed to gain an “understanding of individuals’ strengths, desires, hopes and aspi rations” and to “m aximiz[e] opportunities for individuals to function with as m uch independence and self-determination as possible.” Em ail dated January 3, 2012, from M. Doyle to R. W inkeler, Attached at Exhibit C hereto and incorporated herein by reference.
65. Further, the January 3, 2012 Doyle em ail communication from Doyle to Plaintiffguardian Rita W inkeler provided that the Defendants’ assessment process envisions communications with the disabled individual to “learn about their fears, successes and failures. What works and does not work for the persons. Th eir preference and inte rest or wha t excites them.” Id. The Doyle email also described the goal of the assessment process as “designing the appropriate supports they will need to be successful and have a fulfilling life in the community.” Id. This boilerplate descriptive language describing the State’s pu rported assessment process is completely antithetical to the characteristics of profound developmental disabilities with which
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the Individual Plaintiffs and the Plaintiff-Class Members present. Importantly, by direct result of the specific services rendered through the State-operated S OCDs, the Defendants know of, and have known for some time pre-dating creation of th e assessment process, the overall severe and profound diminished cognitive capacity of the Individual Plaintiffs and Plaintiff-Class Members.
66. Notably, a m ajority of the Individual Pl aintiffs and Plainti ff-Class Members are non-communicative verbally, and/or in som e cases non-verbally, as well as imm obile in som e cases, and are far from having the cognitive abilities it would take to live independently (or even semi-independently) or to progress through “self-determination” to have a “fulfilling life in the community.” Defendants’ propos ed closure of SODCs without a meaningful and effective assessment process, or appropriate replacem ent services, is poorly conceived, reckless an d violates Title II of the ADA (42 U.S.C. § 1 2132) by placing individua ls with severe and profound developmental disabilities at unnecessary risk of hospitalization, injury or death.
67. Moreover, closure of SODCs without th e development of a m eaningful and effective quality of services assessment or process for appeal additionally violates the ADA Title II. The Defendants cannot demonstrate by any objective measure that the Individual Plaintiffs or Plaintiff-Class Members who were or are residents of SODCs will receive equivalent services in the proposed community based placem ents. The De fendants’ plan as carried out by CRA does not guarantee equivalent services or adequate replacement s ervices for the severely and profoundly developmentally disabled because its co re strategic priority is flawed – that an integrated setting (community-based placement) is appropriate regardless of the in tensity of the individual’s disabilities or the severity of hi s or her needs. Ac ross-the-board reduction in services attendant to th e closure of the SO DCs, without provision for adequate replacem ent services, will unlawfully and irreparably harm the Individual Plaintiffs and Plaintiff-Class
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Members. Moreover, the Ind ividual Plaintiffs’ and Plaintiff-Class Mem bers’ severe an d profound developmental and related medical conditions, ev en temporary gaps in service cou ld present serious consequences for them and place th em at great risk of hospitalizatio n, injury or death.
68. Additionally, the Defendants have not sp ecified to the In dividual Plaintiffs’ guardians, despite inquiries, or to the guardians of Plaintiff-Class Members, what services will remain available to them upon transfer from SODCs should the community-based setting approach not work. In fact, there h as been no inform ed choice or consent to any transfer o r revision of services to the Indivi dual Plaintiffs or Plaintiff-Class Members in reg ard to closing the SODCs and the transition to community car e based settings. Instead, Defendants have pressured Plaintiffs’ guardians to sign consents allowing for hurried, se cretive and perfunctory evaluations for placem ent in the co mmunity. In cases where the guard ian has refused such a questionable evaluation process and protocol, the Defendants ha ve indicated that CRA will choose the placement, completely taking the parent or guardian out of the process, in violation of federal law which guarantees that the parent or guardian must approve the choice of placem ent. See Affidavits, attached as Group Exhibit B and incorporated herein by reference.
69. For example, despite legal requirements that the State inform guardians about the adequacy of the disabled Individual Plaintiffs’ and Plaintiff-Class Members’ service options in the community setting, their respective guardians have been told by Defendant CRA that they cannot choose another SODC in lieu of transition to the comm unity setting. See Affidavits, attached as Group Exhibit B and incorporated herein by refere nce. Moreover, Plaintiffs’ guardians have received little ass istance, if any, if they choose a private ICF/D D setting. Id. Those guardians have had to find an ICF/DD on their own, which is almost im possible because
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ICF/DDs cannot, or will not, adm it individuals with severe a nd profound disabilities who are
currently being treated in SODCs in Illinois. Guardians have received documents from the PAS
agency for their signature where the “choice” box is pre-checked for “community.” Id. Some
guardians have been told that SODC or ICF/DD placem ent may be provided somewhere a great
distance away from their family. Id.
WHEREFORE, the Individual Plaintiffs and Pl aintiff-Class Members resp ectfully
request that this Court, in due course, issue orders of declarator y relief, as well as prelim inary
and permanent injunctive relief, in favor of the Plaintiffs as follows:
(a) Declaration that the Defendants collectively violated the Americans with Disabilities Act of 1990, as am ended, in the manner by which they have commenced to im plement the State’ s Plan to transi tion the profoundly disabled Plaintiffs from SODCs to community based res idential settings without ensuring the adequacy of transitioned medically necessary services;
(b) Defendants, Department of Hum an Services, and its Director of Developmental Disabilities, Kevin Casey and CRA, including their successors, agents, officers, s ervants, employees, attorneys and representatives and all persons acting in concert or participating with them, shall be enjoined and restrained from implementing or enforcing the closure of SODCs, or reducing, termin ating or modifying SODC services, unless or until equivalent, appropriate replacement services are p rovided to prevent inappropriate hospitalizati on, injury or death to residents in violation of the developm entally disabled residents’ rights under federal and state laws.
(c) Defendants, Department of Hum an Services, and its Director of Developmental Disabilities, Kevin Casey and CRA, including their successors, agents, officers, s ervants, employees, attorneys and representatives and all persons acting in concert or participating with them, be ordered to:
(i) Take all actions necess ary within the scope of their autho rity to implement the preliminary and permanent Injunctive orders;
(ii) Provide prompt notice to a ll SODCs of the term s of the preliminary and permanent injunctive orders;
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(iii) Provide prompt notice to all residents of SODCs, their families and guardians, of the term s of the prelim inary and perm anent injunctive orders; and
(iv) For attorneys’ fees and costs, as well as such other relief as this Court deems just and proper. COUNT II:
VIOLATION OF SECTION 504 OF THE REHABILITATION ACT, 29 U.S.C. § 794 (Against all Defendants)
70. The Individual Plaintiffs and Plaintiff-Class Members incorporate by reference the allegations in paragraphs 1-69 of the Complaint, above, as if set forth in Count I.
71. Section 504 prohibits discrim ination against individuals with disabilities by any program or activity, including an y department or agency of a State governm ent, receiving Federal financial assistance. 29 U.S.C.§ 794(a) and (b). “No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under a ny program or activity receiving Federal financial assist ance. . . .” 29 U .S.C. § 794; 45 C.F.R. §§ 84.4(a), 84.4(b) (1) (i), (iv) and (v99); 84.4(b) (2); 84.52(a)(1), (4) and (5).
72. Section 504 requires that state and local governments afford protected individuals with disabilities related services, program s and activities in “th e most integ rated setting appropriate to the needs of qualified individu als with disabilities.” 28 C.F.R. § 45.51(d) (emphasis added). That is, federally funde d state governm ents and agencies must m ake reasonable modifications to policies, practices and procedures to avoi d discrimination on the basis of disability, including the elim ination of services deemed necessary and appropriate to meet the needs of the qualified individual with disabilities. 29 U.S.C.§ 794(a).
73. Similar to violations under the ADA, as set fo rth above, the Defendants’ plan violates Section 504 of the Rehabilitation Act: (1) Defendants are di scriminating against the
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Individual Plaintiffs, as wel l as the Pl aintiff-Class Members, as il lustrated in the attached
Plaintiffs’ Affidavits, attached as Group Exhibit B and incorpor ated herein by reference, by
targeting developmental disabilities for greater reductions in fundi ng than other disabilities; (2)
Defendants are preventing the Indi vidual Plaintiffs, as well as th e Plaintiff-Class Members, as
illustrated in the attach ed Plaintiffs’ Affidavits attached as Group Exhibit B and incorporated
herein by reference, from receiving services that are as effective as those provided to individuals
with other disabilities; (3) De fendants’ reduced funding create s a substantial risk that the
Individual Plaintiffs, as wel l as the Pl aintiff-Class Members, as il lustrated in the attached
Plaintiffs’ Affidavits attached as Group Exhibit B and incorporated herein by reference, will not
be able to live in “th e most integrated setting;” and (4) De fendants are limiting the number of
accessible community residential settings available to the n on-ambulatory Individual Plaintiffs
and the Plaintiff-Class Members.
WHEREFORE, The Individual Plaintiffs and Pl aintiff-Class Members resp ectfully
request that this Court, in due course, issue orders of declarator y relief, as well as prelim inary
and permanent injunctive relief, in favor of the Plaintiffs as follows:
(a) Declaration that the Defendants colle ctively violated Section 504 of the Rehabilitation Act, in the m anner by which they have comm enced to implement the State’s P lan to transition the profoundly disa bled Plaintiffs from SODCs to community based residential settings without ensuring the adequacy of transitioned medically necessary services;
(b) Defendants, Department of Hum an Services, and its Director of Developmental Disabilities, Kevin Casey and CRA, including their successors, agents, officers, s ervants, employees, attorneys and representatives and all persons acting in concert or participating with them, shall be enjoined and restrained from implementing or enforcing the closure of SODCs, or reducing, termin ating or modifying SODC services, unless or until equivalent, appropriate replacement services are p rovided to prevent inappropriate hospitalizati on, injury or death to residents in violation of the developm entally disabled residents’ rights under federal and state laws.
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(c) Defendants, Department of Hum an Services, and its Director of Developmental Disabilities, Kevin Casey and CRA, including their successors, agents, officers, s ervants, employees, attorneys and representatives and all persons acting in concert or participating with them, be ordered to: (i) Take all actions necess ary within the scope of their autho rity to implement the preliminary and permanent Injunctive orders; (ii) Provide prompt notice to a ll SODCs of the term s of the preliminary and permanent injunctive orders; (iii) Provide prompt notice to all residents of SODCs, their families and guardians, of the term s of the prelim inary and perm anent injunctive orders; and (iv) For attorneys’ fees and costs, as well as such other relief as this Court deems just and proper. COUNT III:
VIOLATION OF FEDERALLY RECOGNIZED OLMSTEAD PROVISIONS FOR INTEGRATED COMMUNITY SERVICES (Against all Defendants)
74. The Individual Plaintiffs and Plaintiff-Class Members incorporate by referenc e
the allegations in paragraphs 1-73 of the Complaint, above, as if set forth in Count III.
75. The United States Suprem e Court held in Olmstead v. L.C., 527 U.S. 581 (1999)
that public entities are required to provide community-based services to persons with disabilities
when (a) such services are ap propriate; (b) the affected pers ons do not oppose community-based
treatment; and (c) community-based services can be reas onably accommodated, taking into
account the resources available to the entity and the need s of others who are receiving disability
services from the entity.
76. Defendants have not demonstrated through an informed consent to the guardians
of the Individual Plaintiffs or the Plaintiff-Class Members, that the State’s community-b ased
setting approach will b e adequate or appropr iate for the In dividual Plaintiffs or Plaintif f-Class
Members who are severely and profoundly developmentally disabled. That is:
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(a) Defendants have not demonstrated any a ssurance of an adequate transition of available and necessary services to the Indiv idual Plaintiffs’ or Plai ntiff-Class Members’ by transitioning to properly staffed and licensed homes;
(b) Defendants have not de monstrated that th e State it is ab le to, and will, provide equivalent or adequate local licensed providers in transitioning from SODCs to community settings;
(c) Defendants have not de monstrated that the State is able to, and will, in form the guardians of the Individual Plain tiffs or Plaintiff-Class Members’ in advance of transition and, afterwards, provide them with a coordinated program of supervision in its plan for community placement. At best, Defendants have vaguely alluded to the guardians that licensed and/or unlicensed providers will “come and go” as needed, not taking into account for the almost certain level of emergencies that will arise when individuals used to very strict regiments are placed in a freer less supervised setting;
(d) Defendants have no t demonstrated that the State is able to, and will, accommodate the Individual Plaintiffs or Plaintiff-Class Members with placements in an ICFDD, where following transition it is evident that they cannot survive and thrive in a community-based setting.
(e) Defendants have not demonstrat ed that the S tate is able to, and will, ensure that Individual Plaintiffs of Plaintiff-Class Members who cannot survive and thrive in a comm unitybased setting will have a safety net option to return to a facility with equivalent services in Illinois.
(f) Defendants have not de monstrated that the State is able to and will ens ure that money will be available for the payment of the provide rs of such services in the c ommunity beyond one year after placement.
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(g) Defendants also have not, and cannot, demonstrate that the profoundly disabled Individual Plaintiffs or Plaintiff-Class Mem bers, by and through their respective parents or guardians, do not oppose community-based treatment. Indeed, some or all of the guardians were not afforded a m eaningful or fully informed opportunity for choice. See Affidavits, attached as Group Exhibit B and incorporated herein by reference.
(h) Defendants have not, an d cannot, demonstrat e that medically necessary services for the profoundly disabled Plain tiffs, and others similarly situated, m ay be transition ed or otherwise reasonably accommodated in transition from the SODCs to community settings, taking into account the resou rces available to the Stat e and the needs of others who are receiv ing disability services from the State.
WHEREFORE, the Individual Plaintiffs and the Pl aintiff-Class Members respectfully requests that this Court, in due course, issue orders of declarator y relief, as well as p reliminary and permanent injunctive relief, in favor of the Plaintiffs as follows:
(a) Declaration that the Defendants collectively violated the mandate set forth by the United States S upreme Court in Olmstead v. L.C. , 527 U.S. 581 (1999), that public entities are requir ed to dem onstrate compliance with the following prerequisites before a disabled individual m ay be transitioned from an institutionalized residential setting to a communitybased setting for services: (i) inf orming the disabled person or the guardian that such services are a ppropriate; (ii) af fording the d isabled person or the guardian a choice of whether to accept or oppose community-based treatment; and (iii ) evidencing that co mmunity-based services can be reasonably acco mmodated, taking into account the resources available and the needs of others who are receiving disability services from the public entity.
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(b) Defendants, Department of Hum an Services, and its Director of Developmental Disabilities, Kevin Casey and CRA, including their successors, agents, officers, s ervants, employees, attorneys and representatives and all persons acting in concert or participating with them, shall be enjoined and restrained from implementing or enforcing the closure of SODCs, or reducing, termin ating or modifying SODC services, unless or until equivalent, appropriate informed consent as to replacement services are provided to the Indivi dual Plaintiffs’ and Plaintiff-Class Members’ guardians to prevent ina ppropriate hospitalization, injury or death to residents in viol ation of the developm entally disabled residents’ rights under federal and state laws.
(c) Defendants, Department of Hum an Services, and its Director of Developmental Disabilities, Kevin Casey and CRA, including their successors, agents, officers, s ervants, employees, attorneys and representatives and all persons acting in concert or participating with them, be ordered to:
(i) Take all actions necess ary within the scope of their autho rity to implement the preliminary and permanent Injunctive orders;
(ii) Provide prompt notice to a ll SODCs of the term s of the preliminary and permanent injunctive orders;
(iii) Provide prompt notice to all residents of SODCs, their families and guardians, of the term s of the prelim inary and perm anent injunctive orders; and
(iv) For such other relief as this Court deems just and proper.
COUNT IV: 42 U.S.C. §1983-DEPRIVATION OF EQUAL PROTECTION
(Against All; Defendants)
77. The Individual Plaintiffs and Plaintiff-Class Members incorporate by referenc e
the allegations in paragraphs 1-76 of the Complaint, above, as if set forth in Count IV.
78. Individual Plaintiffs, as the representatives of Plaintiffs’ Class Mem bers, are
entitled to assert the individual constitutional and statutory rights of Plaintiffs’ Class Members
with respect to the harm and injuries suffered as a result of Defendants’ actions.
79. At all times relevant, Defendants were acting under color of state law.
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80. Defendants’ discriminatory actions, agai nst the Individual Plaintiffs and the Plaintiffs’ Class Members, were taken pursuant to Defendants’ custom, policy or practice.
81. By virtue of the actions set forth above , in implementing the closure of SODCs and the transfer of Individual Plaintiffs and Pl aintiffs’ Class Members to residential community settings, the Defendants have acted under color of law to deprive the Individual Plaintiffs and the Plaintiffs’ Class Mem bers of their civil rights to receive equal m edical services in a m anner consistent with the equal protecti on clause of fourteenth am endment in violation of 42 U.S.C. § 1983.
82. By depriving the Individual Plaintif fs and the Plaintiff-Class Mem bers of their rights to equal protection and treating them differently than others who re ceive medical services from and through the State of Illinois funding, the Defendants have deliberately and intentionally violated the Individual Plainti ffs’ and t he Plaintiff-Class Members’ rights guaranteed by the Fourteenth Amendment to the Constitution of the United States.
83. The Individual Plaintiffs and the P laintiff-Class Members have suffered dam ages as a result of Defendants’ discri minatory actions, including but not limited to loss of medically necessary services in a facility (SODC) that is adequate ly equipped and staffed to provide the necessary services.
84. The Defendants will continue such unlawfu l deprivation of equal righ ts in the future unless and until restrained by this Court.
WHEREFORE, the Individual Plaintiffs and Pl aintiff-Class Members resp ectfully request that this Court is sue orders of declaratory relief, as well as prelim inary and permanent injunctive relief, in favor of the Plaintiffs as follows:
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(a) Declaration that the Defendants collectively violated the rights of the Individual Plaintiffs and Plaintiff-Class Members under 42 U.S.C. § 1983 in the m anner by which they have commenced to im plement the S tate’s Plan to transition the profoundly di sabled Individual Plaintiffs and Plaintiff-Class Members from SODCs to community based residential settings without ensuring the adequacy of transitioned medically necessary services;
(b) Defendants, Department of Hum an Services, and its Director of Developmental Disabilities, Kevin Casey and CRA, including their successors, agents, officers, s ervants, employees, attorneys and representatives and all persons acting in concert or participating with them, shall be enjoined and restrained from implementing or enforcing the closure of SODCs, or reducing, termin ating or modifying SODC services, unless or until equivalent, appropriate replacement services are p rovided to prevent inappropriate hospitalizati on, injury or death to residents in violation of the developm entally disabled residents’ rights under federal and state laws.
(c) Defendants, Department of Hum an Services, and its Director of Developmental Disabilities, Kevin Casey and CRA, including their successors, agents, officers, s ervants, employees, attorneys and representatives and all persons acting in concert or participating with them, be ordered to:
(i) Take all actions necess ary within the scope of their autho rity to implement the preliminary and permanent Injunctive orders;
(ii) Provide prompt notice to a ll SODCs of the term s of the preliminary and permanent injunctive orders;
(iii) Provide prompt notice to all residents of SODCs, their families and guardians, of the term s of the prelim inary and perm anent injunctive orders; and
(iv) For attorneys’ fees and costs, as well as such other relief as this Court deems just and proper.
COUNT V: VIOLATION OF FEDERAL & STATE LAWS PERTAINING TO MEDICAID
(Against All Defendants)
85. The Individual Plaintiffs and Plaintiff-Class Members incorporate by referenc e
the allegations in paragraphs 1-84 of the Complaint, above, as if set forth in Count V.
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86. Medicaid is a cooperative federal-stat e program designed to cover n ecessary medical services for poor people. Participation in the Medicaid program is not mandatory for the states, but once they choose to participate, they must operate their program s in conformity with federal statutory and regulatory requirements. 42 U.S.C. § 1396a.
87. Each state choosing to participate in the Medicaid Program must designate a single state agency which is responsible for ad ministering the Program. 42 U.S.C. § 1396a (a) (5).
88. Medicaid law requires choi ce. The receipt of Medi caid funding is contingent upon a state offering choice of ICF s/MR or Hom e and Community Based Services (“HCBS”) waivers. A Medic aid HCBS waiver sha ll not be granted unless the stat e provides satisfactory assurances that:
[S]uch individuals who are determ ined to be likely to requ ire the level of care provided in a hospital, nursing facility or intermediate care facility for the mentally retarded are informed of the feasible alternatives, if available under the waiver, at the choice of such individuals, to the provision of inpatient hospital, nursing facility services or services in an intermediate care facility for the mentally retarded. 42 U.S.C. § 1396n(c)(2)(C). 89. When a recipient is determined to be likely to require the level of care provided in an ICF/MR, the recipient or his or her legal representative must be: (1) Informed of any feasib le alternatives available under the waiver, and (2) Given the choice of either institutional or home and community-based services. 42 C.F.R. § 441.302. 90. The Plan must furnish CMS with suffici ent information to support assurances required by § 441.302, including its “plan for inform ing eligible recipients of the feasible
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alternatives…institutional services or hom e and community-based services.” 42 C.F.R. §
441.303(d).
91. Illinois has provided the re quired assurances to r eceive HBSC waivers under
Medicaid in the Illinois Administrative Code:
Section 120.80 Program assurances In addition to program requirements specified in other Sections of this Part, assurances for the Medicaid home and community-based services waiver program will include:
**** b) Informing individuals of choice All individuals requesting program services shall be given a choice of alternative servi ces through the PASARR pr ocess. The choice shall include both ICF/MR and community-based services. 59 Illinois Admin. Code § 120.80.
Additionally, the Illinois Administrative Code’s eligibility determinations for its Medicare home
and community-based services waiver program provides:
Section 120.150 Eligibility determination ****
c) Individuals or guardians sh all be given the choice of receiving State-operated developmental center, community ICF/MR or Medicaid home and community-based services.
59 Ill. Admin. Code § 120.150. In accordance with 42 U.S.C. § 1396n(c)(2)(C) and 42 C.F.R. § 441.302, Illinois gave the
required assurances to CMS in its Application for the HCBS Waiver:
D. Choice of Alternatives: The State assures th at when an individual is determined to be likely to require the level of care specified for this waiver and is in a target group specified in Appendix B, the individual (or, legal representative, if applicable) is:
1. Informed of any feasible alternatives under the waiver; and, 36

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2. Given the choice of either institutional or hom community-based waiver services.

e and

Appendix B specifies the proced ures that th e State em ploys to en sure that individuals are inform ed of feasible al ternatives under the wa iver and given the choice of institutional or home and community-based waiver services.

92. Here, Defendants have not dem onstrated that th e Plan to c lose all SODCs

provided any informed choice whatsoever the Individual Plaintiffs ’ or Plaintiff-Class m embers’

guardians.

93. The Plan, as proposed (and as im plemented in the closure of JDC) does not give

the Individual Plaintiffs or Plaintiff-Class Members the legally requisite choice—rather it forces

all SODC residents to transfer to community-based homes. Thus, the Plan to clos e the SODCs

without adequate inform ation and support requir ements, and without appropriate consultations

and choice, directly violates Fe deral Medicaid Program laws a nd Illinois State regulatory laws

related thereto.

WHEREFORE, the Individual Plaintiffs a nd Plaintiff-Class members respectfully

request that this Court, in due course, issue orders of declarator y relief, as well as prelim inary

and permanent injunctive relief, in favor of the Plaintiffs as follows:

(d) Declaration that the Defendants collectively violated the aforementioned Federal Medicaid Program laws and st ate law requiring the demonstration of “appropriate [services] consistent with the h abilitation needs” of the resident in effecting transition of se rvices to the disabled, see 405 ILCS 5/4-702d (a); and, further, Defenda nts collectively violated the aforementioned Federal Medicaid Pr ogram laws and state law requiring that “[i]ndividuals or gua rdians shall be given the choice of receiving State-operated developmental center, community ICF/MR or Medicaid home and community-based services.” 59 Ill. Adm. Code 120.150 (c).

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(e) Defendants, Department of Hum an Services, and its Director of Developmental Disabilities, Kevin Casey and CRA, including their successors, agents, officers, s ervants, employees, attorneys and representatives and all persons acting in concert or participating with them, shall be enjoined and restrained from implementing or enforcing the closure of SODCs, or reducing, termin ating or modifying SODC services, unless or until equivalent, appropriate replacement services are p rovided to prevent inappropriate hospitalizati on, injury or death to residents in violation of the developm entally disabled residents’ rights under federal and state laws.
(f) Defendants, Department of Hum an Services, and its Director of Developmental Disabilities, Kevin Casey and CRA, including their successors, agents, officers, s ervants, employees, attorneys and representatives and all persons acting in concert or participating with them, be ordered to: (i) Take all actions necess ary within the scope of their autho rity to implement the preliminary and permanent Injunctive orders; (ii) Provide prompt notice to a ll SODCs of the term s of the preliminary and permanent injunctive orders; (iii) Provide prompt notice to all residents of SODCs, their families and guardians, of the term s of the prelim inary and perm anent injunctive orders; and (iv) For attorneys’ fees and costs, as well as such other relief as this Court deems just and proper.
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DATED: February 19, 2013
Judy Sherwin Sherri Thornton-Pierce Sarah R. Burky Kathleen F. Howlett SHEFSKY & FROELICH LTD. 111 East Wacker Drive Suite 2800 Chicago, Illinois 60601 jsherwin@shefskylaw.com sthornton@shefskylaw.com sburky@shefskylaw.com khowlett@shefskylaw.com Telephone: (312) 527-4000 Facsimile: (312) 527-4011
1236399_1.DOCX

PLAINTIFFS, ILLINOIS LEAGUE OF ADVOCATES FOR THE DEVELOPMENTALLY DISABLED; MURRAY PARENTS ASSOCIATION, INC.: INDIVIDUALLY AND ON BEHALF OF ALL PERSONS SIMILARLY By: SITUATED: RITA WINKELER, KAREN KELLY, LAUREN STENGLER, STAN KRAINSKI, ELIZABETH GERSBACHER, BARBARA COZZONEACHINO, ROBYN PANNIER, JEANNIE L. WILLIAMS, DAVID IACONO-HARRIS, DR. ROBERT POKORNY, and GAIL K. MYERS
/S/ Judy Sherwin One of Their Attorneys

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 Case: 1:13-cv-01300 Document #: 55 Filed: 05/13/13 Page 1 of 40 PageID #:806

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ILLINOIS LEAGUE OF ADVOCATES FOR THE DEVELOPMENTALLY DISABLED; and MURRAY PARENTS ASSOCIATION, INC.; and INDIVIDUALLY AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED: RITA WINKELER, as Guardian for Mark Schomaker and Ma rk Winkeler; KAREN KELLY, as Guardian for Eric Schutzenhofer ; LAUREEN STENGLER, as Guardian for Wayne Alan Stengler ; STAN KRAINSKI, as Guardian for Steven Edward Krainski ; ELIZABETH GERSBACHER, as Guardian for Charlie Washington and Linda Fa ye Higgins; BARBARA COZZONE-ACHINO, as Guardian for Robert Metullo ; ROBYN PANNIER, as Guardian for Benjamin Pannier; JEANINE L. WILLIAMS, as Guardian for John L. Fuller, Jr.; DAVID IACONO-HARRIS, as Guardian for Jonathon P. Iacono-Harris; DR. ROBERT POKORNY, as Guard ian for Robert James Pokorny; and GAIL K. MYERS, as Guardian for Mark Andrew Wymore.
Plaintiffs,

Case No. 13-cv-01300 Hon. Marvin E. Aspen
JURY DEMAND

vs.

Govenor

PATRICK QUINN, as Governor of the State of Illinois, ILLINOIS DEPARTMENT OF HUMAN SERVICES, MICHELLE R.B. SADDLER, in her official capacity as Secretary of the Illino is Department of Human Services, KEVIN CASEY, in his official capacity a s Director of Developmental Disabil ities of the Illinois Department of Human Resources , and COMMUNITY RESOURCE ALLIANCE,

Defendants.

SECOND AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE & OTHER RELIEF

Plaintiffs, the ILLINOIS LEA

GUE OF ADVOCATES FOR T HE

DEVELOPMENTALLY DISABLED; MURRAY PARENTS ASSOCIATION (“MPA”); and

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individually and on behalf of all pers ons similarly situated, RITA WINKELER, as Guardian for Mark Schomaker and Mark Winkeler; KAREN KELLY, as Guardian for Eric Schutzenhofer ; LAUREEN STENGLER, as Guardian for Wayne Alan Stengler and Linda Faye Higgins ; STAN KRAINSKI, as Guardian for Steven Edward Krainski ; ELIZABETH GERSBACHER, as Guardian for Charlie Washington ; BARBARA COZZONE-ACHINO, as Guardian for Robert Metullo; ROBYN PANNIER, as Guardian for Benjamin Pannier; JEANINE L. WILLIAMS, as Guardian for John L. F uller, Jr.; DAVID IACONO-HARRIS, as Guardian for Jonathon P. Iacono-Harris; DR. ROBERT POKORNY , as Guardian for R obert James Pokorny; and GAIL K. MYERS, as Guardian for Mark Andrew Wymore, by their undersigned attorneys, state as follows for their Second Amended Complaint for Declaratory, Injunctive & Other Relief against Defendants, Patrick Quinn, as Gove rnor of the St ate of Illinois, Illinois Departm ent of Human Services, Michelle R. B. Saddler, in her official capacity as Secr etary of the Illinois Department of Human Resources, Kevin Case y, in h is official capacity as Director of Developm ental Disabilities of the Illinois Departm ent of Human Resources, and Community Resources Alternatives, Inc. (“CRA”) (collectively “Defendants”):

I. INTRODUCTION & OVERVIEW

1. The individual Plaintiffs are the leg al guardians of adult in dividuals who qualify

under state and Federal laws as persons deemed unable to care and provide for them

selves

including, but not limited to, the ability to live independently due to severe and profound mental

and/or physical disabilities (hereinafter, the “Individual Plaintiffs”). The Individual Plaintiffs sue

as legal guardians on behalf of their disabled charges and on behalf of all disabled persons

similarly situated.

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2. Additionally included as a Plaintiff in this action are two Illinois non-profit advocacy organizations, the Illino is League of Advocates for the Developm entally Disabled, Inc., and the Murray Parents Association. These organizations support indi viduals with severe and profound mental and/or physical disabilities, and also oppose the Stat e’s plan (the “Plan”) under which the Defendants’ seek to close all State Operated Developm ental Centers for the Developmentally Disabled (“SODCs”) and, to that end, have already removed all the residents of one such facility (the Jacksonville Developm ental Center) and are imminently prepared to close another (the Murray Developm ental Center), with more to follow shortly thereaf ter. A true and accurate copy of the State Plan is attached hereto and incorporated herein by reference as Exhibit A.1
3. Collectively, the Individual Plaintiffs and Plaintiff-Class Members oppose the Plan because it is b eing undertaken against the legal guardians’ will and against the will of th e guardian-charges’ current caretakers. The State’s Plan is an ill- conceived and predeterm ined “cookie-cutter” outcome process that results in the profoundly disabled Individual Plaintiffs’ and Plaintiff-Class Members’ eviction from their safe and secure hom es of many years at SODCs, such as Murray Developm ent Center, and thrusts them into unsupervised, and in m any cases, unlicensed community placements where they have and will continue to suffer irreparable harms, including but not limited to risk of abuse and neglect, serious injury, and even death.
4. The Individual Plaintiffs and Plaintiff-Class Members thus respectfully seek relief from this Court to is sue the de claratory relief detailed below, and to immediately an d permanently enjoin the Def endants from completing the un ilateral and imminent closure of all SODCs across Illinois, includ ing but not lim ited to thos e SODCs in which each of the nam ed
1 Exhibit A is a version of the State’s Plan, date February 2012, which currently appears on the State’s public website. To the extent that there are alleged to have been changes, updates or other modifications to this Plan, they are not available to Plaintiffs.
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Individual Plaintiffs has resided and received medically necessary services for all or most of their lives. Among other relevant factors, the Indivi dual Plaintiffs and Plaintiff-Class mem bers have not ever agreed to relocate from the SODCs to the designated residential settings.
5. As further detailed herein, Federal and Illinois State laws including, but not limited to, the Americans with Disabilities Act of 1990, as amended, the Rehabilitation Act, and Medicaid Program regulations, require the State of Illinois to continu ously provide adequate levels of medically necessary se rvices for disabled ind ividuals regardless of residential setting transitions from an institutional setting to a community residence.
6. In contravention of these laws, the Defe ndants have commenced to systematically shut down the SODCs and to limit State-provided residences and medically necessary services to the Individual Plaintiffs and to the Plain tiff-Class Members. The systematically planned SODC closings and the transition of the Individual Plaintiffs and P laintiff-Class Members to scattered one and tw o bedroom community residences, whic h are n either licensed medical facilities nor locations operated or s taffed with o n-site and licensed medical professionals, have resulted in irreparable and continuing harms to the Individual Plaintiffs and Plaintiff-Class members
7. The significant and irrepara ble harms suffered to date by each of the severe and profound medically disabled Individual Plaintiffs and Plaintiff-Class members will continue with the ongoing SODC closings. Those harm s include, but are not lim ited to, the State’s com plete elimination, without informed consent to parents or guardians, of certain categories of medically necessary services and/or providing woefully inad equate levels of m edically necessary services to the Indiv idual Plaintiffs and Plaintif f-Class Members in the community res idential settings. While cuts in the State’s budget m ay require fiscal austerity, forcing closure of all SODCs is the wrong priority and, as further detailed herein, Federal and Illinois St ate laws warrant the
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fashioning of immediate and permanent equitable relief for the Individual Plaintiffs and PlaintiffClass Members.

II. JURISDICTION 8. The United States D istrict Court ha s jurisdiction over the claim s against
Defendants pursuant to 28 U.S.C. § 1331 because the claim s arise under federal statutes. The Court may also exercise pendant jurisdiction over the state law cl aims, pursuant to 28 U.S.C. § 1367.

III. VENUE & JURY DEMAND 9. Venue is proper in the Northern Distri ct of Illinois pursuant to 28 U.S.C. §
1391(b) because the State’s plan ef fects guardians of developm entally disabled persons residing in the Nor thern District and also e ffects those who will be transf erred to SODCs and other community setting s within the Northern Dis trict and acro ss the State of Illinois. Plaintif fs demand a jury trial of this matter.

IV. RELEVANT FEDERAL & STATE STATUTORY FRAMEWORK

Americans with Disabilities Act

10. Congress enacted the Am ericans with Disabilities Act (“ADA”), as amended, 42

U.S.C. §§ 12101-12181, in 1990 “to provide a clear and comprehensive national mandate for the

elimination of discrimination agains t individuals with disabilities. ” Id. at §12101(b)(1) .

Congress found that “historically, society has tende d to isolate and segreg ate individuals with

disabilities, and, despite som e improvements, such forms of discrim ination against individuals

with disabilities continue to be a serious and pervasive

social problem.” 42 U.S.C.

§ 12101(a)(2). For those reasons, Congress prohibi ted discrimination against individuals with

disabilities by public entities:

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[N]o qualified individual with a disa bility shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program s, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132 (emphasis provided). As directed by Congress, the Attorney Genera l issued regulations implementing Title II, which are based on regulations issued under secti on 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). The ADA Title II regulations require public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d) (emphasis provided).
**** Section 504 of the Rehabilitation Act 11. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (hereinafter, “Section 504”), prohibits discrimination against individuals with disabili ties by any program or activity, including any departm ent or agency of a State government, receiving Federal financial assistance. 29 U.S.C.§ 794(a) and (b). “No otherwise qualified indi vidual with a disability . . . shall, solely by reason of her or his disability, be excluded f rom participation in, be denied the benefits of, or be subjected to discrimination under any progra m or activity receiving Federal financial assistance. . . .” 29 U.S.C. § 794; 45 C.F.R. §§ 84.4(a), 84.4(b) (1) (i), (iv) and (v99); 84.4(b) (2); 84.52(a)(1), (4) and (5). 12. Section 504 requires that state and local governments afford protected individuals with disabilities related services, program s and activities in “th e most integ rated setting appropriate to the needs of qualified individu als with disabilities.” 28 C.F.R. § 45.51(d) (emphasis added). That is, federally funde d state governm ents and agencies must m ake reasonable modifications to policies, practices and procedures to avoi d discrimination on the
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basis of disability, including the elim ination of services deemed necessary and appropriate to meet the needs of the qualified individual with disabilities. 29 U.S.C.§ 794(a).
**** The U.S. Supreme Court’s “Olmstead v. L.C.” Requirements for ADA Title II Covered Services to Individuals with Disabilities. 13. Fourteen years ago, the Supreme Court applied the ADA Title II mandates to hold that Title II prohibits the unjustified segreg ation of individuals with disabilities. Olmstead v. L.C., 527 U.S. 581 (1999). Im portantly, the Court held that public entities are required to provide community-based services to persons with disab ilities when (a) such s ervices are appropriate; (b) the affected persons do not oppose community-based treatm ent; and (c) community-based services can be reasonably ac commodated, taking into account the resources available to the entity and the needs of others who are receiving disability services from the entity. Id. at 607.
**** Civil Rights Act, 42 U.S.C. § 1983 14. “Every person who, under color of any stat ute, ordinance, regulation, custom , or usage, of any State or Territory or the District of Colum bia, subjects, or causes to be subjected, any citizen of the United States or other person w ithin the jurisdiction thereof to the deprivation of any rights, priv ileges, or immunities secured by the Con stitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailab le. For the purposes of this section, any Act of Congress
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applicable exclusively to the District of Columbia shall be cons idered to be a statu te of th e District of Columbia. “
**** The Federal Medicaid Program & State Waivers 15. Title XIX o f the Social Security Act, 42 U.S.C. §§ 1396-1396 w-2 (herein after, Medicaid Act”), e stablishes the M edicaid Program. The objective of the Medica id Act is to enable each State to furnish m edical assistance to families with children and to ag ed, blind, or disabled individuals whose incomes and resources are insufficient to meet the costs of necessary medical services and to f urnish “rehabilitation and other servic es to help such f amilies and individuals attain or retain capability for independence or self-care.” 42 U.S.C. § 1396. 16. The Medicaid Program typically does not dire ctly provide health care services to eligible individuals, nor does it provide benef iciaries with money to purchase health care directly. Rather, Medicaid is a vendor paym ent program, wh erein Medicaid participating providers are reimbursed by the Program for the services they provide to recipients. 17. Medicaid is a cooperative federal-stat e program designed to cover n ecessary medical services for poor people. Participation in the Medicaid program is not mandatory for the states, but once they choose to participate, they must operate their program s in conformity with federal statutory and regulatory requirements. 42 U.S.C. § 1396a. 18. Each state choosing to participate in the Medicaid Program must designate a single state agency which is responsible for ad ministering the Program. 42 U.S.C. § 1396a (a) (5). 19. Medicaid law requires choi ce. The receipt of Medi caid funding is contingent upon a state offering choice of ICF s/MR or Hom e and Community Based Services (“HCBS”)
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waivers. A Medic aid HCBS waiver sha ll not be granted unless the stat e provides satisfactory assurances that:
[S]uch individuals who are determ ined to be likely to requ ire the level of care provided in a hospital, nursing facility or intermediate care facility for the mentally retarded are informed of the feasible alternatives, if available under the waiver, at the choice of such individuals, to the provision of inpatient hospital, nursing facility services or services in an intermediate care facility for the mentally retarded. 42 U.S.C. § 1396n(c)(2)(C). 20. When a recipient is determined to be likely to require the level of care provided in an ICF/MR, the recipient or his or her legal representative must be: (1) Informed of any feasib le alternatives available under the waiver, and (2) Given the choice of either institutional or home and community-based services. 42 C.F.R. § 441.302. 21. The Plan must furnish CMS with suffici ent information to support assurances required by § 441.302, including its “plan for inform ing eligible recipients of the feasible alternatives…institutional services or hom e and community-based services.” 42 C.F.R. § 441.303(d). 22. Illinois has provided the re quired assurances to re ceive HBSC waivers under Medicaid in the Illinois Administrative Code: Section 120.80 Program Assurances In addition to program requirements specified in other Sections of this Part, assurances for the Medicaid home and community-based services waiver program will include:
**** b) Informing individuals of choice
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All individuals requesting program services shall be given a choice of alternative services through the PASA RR process. The choice shall include both ICF/MR and community-based services.

59 Illinois Admin. Code § 120.80.

Additionally, the Illino is Administrative Code’s eligibility determinations for its

Medicare home and community-based services waiver program provides:

Section 120.150 Eligibility Determination

****

c) Individuals or guardians sh all be given the choice of receiving State-operated developmental center, community ICF/MR or Medicaid home and community-based services.

59 Ill. Admin. Code § 120.150.

In accordance with 42 U.S.C. § 1396n(c)(2)(C) and 42 C.F.R. § 441.302, Illinois gave the

required assurances to CMS in its Application for the HCBS Waiver:

D. Choice of Alternatives: The State assures th at when an individual is determined to be likely to require the level of care specified for this waiver and is in a target group specified in Appendix B, the individual (or, legal representative, if applicable) is:

1. Informed of any feasible alternatives under the waiver; and,

2. Given the choice of either institutional or hom community-based waiver services.

e and

Appendix B specifies the proced ures that th e State em ploys to en sure that individuals are inform ed of feasible al ternatives under the wa iver and given the choice of institutional or home and community-based waiver services.

V. THE PARTIES Institutional Plaintiffs
23. Plaintiff Illinois League of Advocates for the Developm entally Disabled (ILADD) is an Illinois Not For Prof it Corporation, principally located in River Grove, Illinois, the mission of which is to advocate for and educate the citizens of Illin ois about th e needs of
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severely developmentally disabled persons in the State of Illinois who reside in SODCs. IL-ADD has amongst its membership persons who are guardians and next of kin of persons who reside in the SODCs located in the Northern District of Illinois and who would have the right to bring this action on their own behalf on an individual basis
24. Plaintiff Murray Parents Association (“ MPA”) is an Illinois Not For Profit Corporation, principally located in Centralia, Illinois, the mission of which is to prom ote the general welfare of the residents of the Murray Center and foster the development of programs on their behalf. MPA has am ongst its membership persons who are guardians and next of kin to persons who reside in the SODCs, are resident in the Northern District of Illinois and would have the right to bring this action on their own behalf on an individual basis.
Individual and Class Representative Plaintiffs 25. Rita Winkeler (“Ms. Winkeler”) is a re sident of Centralia, Il linois. She is a member of the board of IL-ADD and is a member and the president of the MPA. Ms. Winkeler is also the legal guardian of her brother, Mark Schomaker, and her son, Mark W inkeler. Ms. Winkeler has m ade her opposition known to IDHS and CRA. She, along with other MDC guardians, has been informed by IDHS and Defenda nt CRA that if she pe rsists in her opposition they will ev ict her son from MDC agains t her will, that she will be responsible for finding alternative placement for him or if she cannot find alternative placem ent that IDHS will place him in a placement of their choosing whether she agrees or not. ( See Affidavit of Rita Winkeler, Group Exhibit B attached hereto and incorporated in by reference). 26. Karen Kelly (“Ms. Kelly”) is a resident of O’Fallon, Illinois. She is a member of MPA and is the legal guardian of her son, Eric Schutzenhofer. He is 39 years of age and has the mental age of a thirty-month old. He has been a resident of MPA since 1991. Ms. Kelly opposes the placement of Eric into the community because the State cannot adequately provide medically
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necessary services to he r son in that setting an d, additionally, because Eric will be at risk for abuse and neglect given the pervasiveness of hi s disability. Ms. Kelly has m ade her opposition known to IDHS and CRA. She, along with other MDC guardians, has been inform ed by IDHS and Defendant CRA that if she persists in her opposition they will evict Eric f rom MDC against her will, that she will be res ponsible for finding alternative pl acement for him or if she cannot find alternative placement that IDHS will place him in a placement of their choosing whether she agrees or not. ( See Affidavit of Karen Kelly, Group Exhibit B, attached hereto and incorporated in by reference).
27. Laureen Stengler (“Ms. Stengler”) is a re sident of Crete, Il linois. She is a member of MPA and is the legal guardian of Wayne Alan Stengler . He is 55 years of age and has the mental age of nine m onths. He has been a resident of MPA since May of 1965. She opposes the placem ent of W ayne into the comm unity because th e State canno t adequately provide medically necessary services to her son in that setting and, additionally, because W ayne will be at risk f or abuse and neglect given the pervasiveness of his disability. Ms. Stengler has made her opposition known to IDHS and CRA. Sh e, along with other MDC guardians, has been informed by IDHS and Defendant CRA that if she persis ts in her opposition they will evict Wayne from MDC against her will, that she will be responsible for finding alternative placement for him or if she cannot find alternative p lacement that IDHS will place him in a placem ent of their choosing whether she agrees or not.
28. Stan Krainski (“Mr. Krainski”) is a resident of Niles, Illinois. He is the guardian of Steven Edward Krainski. Steven is 53 y ears of age and has the m ental age of eighteen months. He has been a resident of the Anne Kiley Center since 1975. Mr. Krainski opposes the placement of Steven into the community because the State cannot adequately provide medically
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necessary services to his son in that setting and, additionally, because Steven will be at risk for abuse and neglect given the pervasiveness of his disability. Mr. Krai nski is infor med and believes that the State intends to close Anne Kiley Developmental Center. He is further informed that pursuant to the State Plain for closure, he will have to move Steven to a placement against his will or th at he will be responsible fo r finding alternative p lacement for him or if he cannot find alternative placem ent that IDHS will p lace him in a placem ent of their choo sing whether he agrees or not.
29. Elizabeth Gersbacher (“Ms. Gersbacher”) is a resident of Carbondale, Illinois. She has been the legal guardian of Charlie W ashington since the 1980s. He is 45 years old has an IQ under 50 and has been a resident of Choa te Developmental Center (“CDC”) since 1996. Among other m anifestations of his disability, Charlie has been diagnosed with aggressive, bipolar and m anic behaviors, and has tried an d failed in comm unity placement on num erous occasions. Charlie’s medical history evidences that he can only be cared for safely and properly in an SODC. Ms. Gersbacher is also the guardian for Linda Faye Higgins who is 44 years of age with an IQ of under 50 a nd is a resident of CDC. Ms. Ge rsbacher has tried the community for her wards on numerous occasions in the past an d has learned they can o nly be cared for safely and properly in an SODC. She opposes the placement of Charlie and Linda into the community because the State cannot adequately provide m edically necessary services to either o f her wards in that setting and, additionally, because they will each be at risk for abuse and neglect given th e pervasiveness of their respectiv e disability. Ms. Gersbacher has made her opposition known to IDHS and CRA. She is informed and believes that Defendant DHS and Defendant CRA will next turn the Pla n to the Choate Develo pmental Center and th at Defendants will evict Charlie an d Linda from CDC against her will, th at she will be responsible for finding alternative placem ent
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for them or if she cannot find altern ative placement that IDHS will place them in a placement of IDHS’ choosing whether she agrees or not.
30. Barbara Cozzone-Achino (“Ms. Cozzone-Achino”) is a resident of Cherry Valley, Illinois and is the legal guardian of Robert Metullo, who is 40, a nd Michael Metullo who is 43. Both have an IQ below 50 and have been residents of Mabley Developmental Center (“Mabley”) since 1998. Ms. Cozzone-Achino has tried the comm unity for her wards on num erous occasions in the past and has learned they can only be cared for safely and properly in an SODC due to the nature and extent of their resp ective disabilities. Ms. Cozzone-Achino opposes the placement of Robert and Michael into the co mmunity because the State cannot adequately provide medically necessary services to her wards in th at setting and, additionally, because each of her wards will be at risk f or abuse and neglect given the perv asiveness of their res pective disability. Ms. Cozzone-Achino has made her op position known to IDHS and CRA. She is inf ormed and believes that Defendant IDHS and Defendant CRA will e ventually turn the Plan to Mabley and that Defendants will ev ict Robert and Michael from Mabley against her will, that she will be responsible for finding alternative placement for them or if she cannot find alternative placement that Defendants will place them in a placement of their choosing whether she agrees or not.
31. Robyn Pannier (“M s. Pannier”) is a reside nt of Peoria, Illino is and the legal guardian of Benjamin Pannier, a developm entally disabled adult who was residing at the Jacksonville Developmental Center (JDC) duri ng the tim e period relevant to this second amended complaint. She was forced to transfer her ward into a community setting in spite of the fact he has not been successful therein befo re. Ms. Pannier knows that the State cannot adequately provide m edically necessary services to her ward in that setting and, additionally,
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knows that Benjam in will be at ris k for abus e and neglect given th e pervasiveness of his disability.
32. Jeanine L. Williams (“Ms. Williams”) is a resident of St. Louis, Missouri and the legal guardian of John L. Fuller, Jr., a developm entally disabled adult who was residing at the JDC during the time period relevant to this second amended complaint. Ms. Williams’ ward was transferred away from the JDC to a CILA (Community Inte grated Living Arrangement) located in Illinois, but thereafter was returned to JDC af ter the CILA ref used to retain him following a behavioral incident (the afor ementioned clients of JDC ar e referred to herein as the “JDC Clients”). Ms. W illiams’ ward subsequently has been transferred out of JDC against his will; pursuant to Defendants’ plan her wa rd will again be forced into the community where he will be at risk for abuse and neglect.
33. David Iacono-Harris (“Mr. Ia cono-Harris”) is a resident of Springfield, Illinois and is the legal guardian of Jonathon P. Iacono -Harris, a developm entally disabled adult who was residing at the JDC during the tim e period relevant to this second amended complaint. Mr. Iacono-Harris was forced to transfer his ward into a community setting in spite of the fact he has not been successful therein before. Mr. Iacono-Harris believes th at Defendants’ Plan has put his ward at risk for abuse and neglect.
34. Dr. Robert Pokorny (“Dr. Pokorny”) is a re sident of Aurora, Illinois and is the legal guardian of Robert Jam es Pokorny, a devel opmentally disabled adult who was residing at the JDC. He was forced to transfer his ward into a community setting in spite of the fact he has not been successful therein before and she believes that Defendants’ Plan has put her ward at risk for abuse and neglect.
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35. Gail K. Myers is a resident of Elburn, Il linois and is the legal guardian of her son, Mark Andrew W ymore, a 46 year-old developm entally disabled adult who has resided at Fox Developmental Center (“FDC”) for 32 years. She has tried the community for her son on numerous occasions in the past and has learned he can only be cared for safely and properly in an SODC. She opposes the placem ent of Mark into the community because he will be at risk for abuse and neglect and has m ade her opposition known to IDHS and CRA. She is infor med and believes that Defendant IDHS and Defendant CRA will eventually turn the Plan to FDC and that Defendants will evict M ark from FDC against her will, that she will b e responsible for finding alternative placement for Mark or if she cannot find alternative placem ent that Defendants will place her son in a placement of their choosing whether she agrees or not.
Defendants 36. Defendant Illinois Department of Human Services, Divis ion of Developmental Disabilities (“IDHS”) is a state agency organized under the la ws of Illinois responsible for the provision of services to the developm entally disabled in Illinois. It m ust provide those services pursuant to the laws of Illinois and the United States and regulations promulgated thereunder and also pursuant to the Illin ois State Medicaid Plan and the Waiver as to the provision of services for the developmentally disabled as approved by the Center f or Medicare and Medicaid Services of the United States. ID HS is the agency which has crea ted and is attempting to im plement the State Plan. Attached hereto as Exhibit A is a version of the Plan dated February 12, 2012. The Plan as written and as implemented violates various Federal and I llinois State laws and regulations. 37. Defendant Patrick Quinn is the Governor and chief executive officer of t he State of Illinois. He is responsible for directing, supervising and controlling the executive departments of state government. Governor Quinn is ultimately responsible for ensuring that Illinois operates
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its long-term care system for people with disabi lities in confor mance with federal and state laws. Governor Quinn is sued in his official capacity.
38. Defendant Michelle R.B. Saddler is the Secretary of the Illinois Departm ent of Human Services. Ms. Saddler is sued in her o fficial capacity. As Secretary, M s. Saddler is ultimately responsible for ensuring that Illinois ope rates its delivery of se rvices to individuals with disabilities in confor mity with th e United States Constitution, the ADA, t he ADA’s implementing regulations, Section 504 of the Rehabilitation Act of 1973 as amended, and Section 504’s implementing regulations.
39. Defendant Kevin Casey is th e Director of D evelopmental Disabilities of the Illinois Department of Hum an Services. Mr. Casey runs the dep artment of the IDHS that is tasked with implementing the State Plan to clo se SODCs. Mr. Casey is sued in his official capacity.
40. Defendant Community Resource Alliance is a business entity hired by Defendant IDHS to develop and implem ent the Plan pursuan t to which Defendant IDHS seeks to close all the SODCs in Illino is and to te rminate all ins titutional services in p rovided thereby to th e developmentally disabled.

VI. CLASS ACTION ALLEGATIONS

41. Pursuant to Fed. R. Civ. P. 23(a), (b

)(2), (b)(3) and (c)(4), the Class

Representative Plaintiffs bring this action on behalf of themselves and all other persons similarly

situated.

42. The proposed class consists of: All severe and profound developmentally delayed

adult individuals who reside presently, or resided in the past, in a State Operated Developm ental

Center (“SODC”) at any tim e since January 1, 2011, or at any tim e during this litigation, who

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oppose any transfer from their SODC to a community housing setting (her einafter collectively referenced as the “Plaintiff-Class Members”).
43. Joinder of the entire Class is im practicable because the Plaintiff-Class Members are numerous, and are persons with severe or pr ofound developmental disabilities. Virtually all Plaintiff-Class Members are unabl e to give their consent except through guardians or fa mily members.
44. Plaintiffs’ claims are typical of the claims asserted on behalf of the Class. 45. Plaintiffs do not have any interests that are adverse or antag onistic to any claims or potential claims of the Class. 46. Plaintiffs will f airly and adequately protect the interests of the m embers of the Class. 47. Plaintiffs are comm itted to the vigorous pros ecution of this action a nd have retained counsel competent and experienced in this type of litigation. 48. Plaintiffs do not seek monetary dam ages. Hence, the burden and expense of prosecuting this litigation makes it unlikely that members of the Class would or could prosecute individual actions. If individua l actions were pursued by Plaint iff-Class Members, prosecution of those individual claims would be impracticable and inefficient. 49. There are m any questions of law and fact common t o the Clas s, which predominate over any questions which m ay affect individual m embers. The predom inant common questions of law and fact include, among other things:
(a) Whether Defendants are liable for vi olations of the Am ericans with Disabilities Act, 42 U.S.C. § 12132;
(b) Whether Defendants are liable for viol ation of § 504 of the Rehabilitation Act, 20 U.S.C. § 794 (“Section 504”), and the waiver of state sovereign immunity enacted in 42 U.S.C. § 2000d-7(a)(1);
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(c) Whether Defendants are liable for viol ation of various Medicaid federal statutes and regulations incorporated into Illinois law;
(d) Whether Defendants are liable for viol ations of the Civil Rights Act, 42 U.S.C. § 1983;
(e) Whether Plaintiffs and Pl aintiff-Class Members are entitled to equ itable and injunctive relief.
50. A class action is superior to all other av ailable methods for the fair and efficient adjudication of this controversy.
51. Plaintiffs seek declarato ry and injun ctive relief, attorneys’ fees and exp enses as permitted by law, on behalf of themselves and the Class.
VII. BACKGROUND FACTS 52. In February, 2012, as a m eans to contend with the State’s $13 billion deficit,
Governor Quinn announced his intention to close two SODCs by October 31, 2012 (the Jacksonville Developmental Center (“Jacksonville” or “JDC”) in Jacksonville, Illinois), and by October 31, 2013 (Murray Developm ental Center (“Murray” or “MDC”) in Centralia, Illino is), and on information and belief, to close all remaining SODCs soon thereafter.
53. On June 14, 2012, Governor Quinn signe d a package of legislation which included $1.6 billion worth of Medicaid cuts endangering the poorest and neediest of the State’s residents, and in particular, individuals with severe and profound developmental disabilities.
54. The signing of the “Sav e Medicaid Access and Resources T ogether (“SMART”) Act, Public Act 097-0689, slashed an annual $2 40 million that provided critical funding to State nursing homes and hospitals and results in the planned closure of SODCs in Illinois.
55. On October 30, 2012, the Illinois Health Fa cilities and Services Review Board (“IHFSRB”), over ob jections from the Individual Plaintiffs, and representatives of other
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similarly situated individuals with developm ental disabilities, and against the recom mendations of IHFSRB’s own staff, issued its decision to close JDC.
56. In the weeks that followed the decision, IDHS first requested and received an extension of the closu re date from November 21, 2012 to December 3, 2012. Un able to meet even the revised closure date (by completing all the steps in its own process), IDHS instead fasttracked the process to r elocate all of the rem aining JDC residents to other locations – despite having emphatically testified to th e IHFSRB that the o riginal November 21st closure date provided enough time and that if necessary, they were prepared to follow the IHFSRB’ s procedures to keep the f acility open – with appropriate staff – as long as necessary to ensure the safe, sound and reasonable transitions.
57. Instead, IDHS abruptly m oved 30+ resi dents, inclusive of the Individual Plaintiffs’ and Pl aintiffs’ Class Members, t o other SODCs in a matter of days pr ior to th e December 3, 2012 closure, many as temporary admissions, thus ensuring continued infliction of transfer trauma in the future, when they will undoubtedly be moved again.
58. Critically, the budget cuts im plemented as of J uly 1, 2012, have caused and will cause the eventual elim ination of services for the Individual Plain tiffs and Plaintiffs’ Class Members, as well as the imminent closure of all Illinois SODCs. Indeed, on information belief, it is the State’s intention to close all o f Illinois’ SODCs despite the fact that Illinois residents now living in SODCs, inclusive of the Individual Plaintiffs’ and Plaintiffs’ Class Members, will have no appropriate placement.
59. In the absence of an injunction, the indi vidual Plaintiffs and Plaintiffs’ Class members will be irrepa rably harmed by the closure of SODCs. Many residen ts of SODCs, including the individual Plaint iffs and Pl aintiffs’ Class members, are inc apable of living
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independently in community-based settings. See Affidavits, attached as Group Exhibit B and incorporated herein by refe rence. Additionally, docum ents provided by the JDC Closure Advisory Committee indicate that as of m id-September 2012, 47 individuals, inclusive of the individual Plaintiffs and Plaintiffs’ Class member, had been moved out of JDC. Among those 47, over a two m onth period there were 4 police en counters, or 8.5%. Ov er a 4 month period, there were 14 hospital admissions and/or ER visits-- nearly 30% of the transitioned.
60. The harm in this instance is p articularly irreparable and imm inent. On information and belief, the closure of JDC a nd the im minent closure of MDC show that Defendants plan is to p ush ahead to close all Illinois SO DCs without adequate replacem ent services.
61. Services offered by the SODCs are necess ary and critical to the residen ts’ physical well-being. An interruption in care, even if temporary, is more likely than not to have serious consequences on the health and well-being of the profoundly disabled. While alternative services may be available to replace the SODC se rvices at issue, Defendants have admitted that if their community-based placement fails, residents may have to seek services in oth er states and they (the Defendants), can only speculate about whether that State will b e able to p rovide equivalent services as mandated by federal laws.
62. Defendants have not met their legal burde n under applicable federal and state laws, as further detailed below, to ensure that more than a theoretical availability of replacement services will exis t if they eliminate all SODC servic es. W hile Defendants’ plan may provide some alternative services, CRA has not dem onstrated that its community-based setting approach will be adequate for the severely and profoundly disabled in the following ways:
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(a) Defendants have not demonstrated any assurance of an adequate transition of available and neces sary services to Plaintiffs and others sim ilarly situated, by transitioning to properly staffed and licensed homes;
(b) Defendants have not dem onstrated that the S tate is ab le to, and will, provide equivalent or a dequate local licensed provider s in transitioning from SODCs to community settings;
(c) Defendants have not dem onstrated that the S tate is ab le to, and will, inform Plaintiffs’ guardians in ad vance of transition and, afterwards, provide Plaintiffs with a coordinated program of supervision in its plan for community placement. At best, De fendants have vaguely allud ed to Plaintiffs’ guardians that licensed a nd/or unlicensed providers will “com e and go” as needed, not taking into acc ount for the alm ost certain level of emergencies that will ar ise when individuals used to very str ict regiments are placed in a freer less supervised setting;
(d) Defendants have not dem onstrated that the S tate is ab le to, and will, accommodate Plaintiffs and others s imilarly situated with placement in an ICFDD, where following transition it is evident that they cannot survive and thrive in a community-based setting.
(e) Defendant has not dem onstrated that the State is able to, and will, ensure that individuals who cannot survive and thrive in a community-based setting will have a saf ety net option to return to a facility with equivalent services in Illinois.
(f) Finally, Defendants have not de monstrated that the State is able to and will ensure that money will be av ailable for the payment of the providers of such services in the community beyond one year after placement.
VIII. PLAINTIFFS’ CLAIMS
COUNT I: VIOLATION OF THE AMERICANS WITH DISABILITIES ACT OF 1990, as amended
(Against all Defendants)
63. The Individual Plaintiffs and Plaintiff-Class members incorporate by reference the
allegations in paragraphs 1-62 of the Second Amended Complaint, above, as if set forth in Count
I.
64. The ADA was enacted in 1990 to “provide a clear and comprehensive national
mandate for the elimination of discrimination against individuals with disabilities.” (42 U.S.C. §
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12101(b)(I)). Title II of the ADA prohibits discrimination in access to public services by requiring that “no qualified individual with a disability sh all, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” (42 U.S.C. § 12132).
65. The Defendants’ plan violates the Title II of the ADA as follows: (1) Defendants are discriminating against the Indi vidual Plaintiffs, as well as th e Plaintiff-Class Members, as illustrated in the attach ed Plaintiffs’ Affidavits attached as Group Exhibit B and incorporated herein by reference, by targeting developmental disabilities for greater reductions in funding than other disabilities; (2) Defendants are preventing the Individual Plaintiffs, as well as the PlaintiffClass Members, as illustrated in the attached Plaintiffs’ Affidavits attached as Group Exhibit B and incorporated herein by referen ce from receiving services that are as effectiv e as those provided to individuals with other disabilities; (3) Defenda nts’ reduced funding creates a substantial risk tha t the Individual Plaintiffs, as well as the Plain tiff-Class Members, as illustrated in the attach ed Plaintiffs’ Affidavits attached as Group Exhibit B and incorporated herein by r eference, will not b e able to live s afely in “th e most integrated s etting;” and (4 ) Defendants are limiting the number of accessible community residential settings available to the non-ambulatory Individual Plaintiffs and the Plaintiff-Class Members.
66. Defendants’ closure of the SODCs leaves Plaintiffs with no com parable and appropriate choice for the safety-net services provided by SODCs. Indeed, the complete closure of all SODCs evidenc es the Defendants illegal intent and prac tice to p resumptively and unilaterally conclude that all of the Individual Plaintiffs and Plaintiff-Class Members are eligible for community-based placement, rather than serv ices that may only be offered adequately for each individually assessed Plaintiff through an SODC setting.
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67. To that end, the Defendants have alr eady closed SODCs i n which som e of the Individual Plaintiffs a nd Plaintiff-Class Members previously resided, and continue to do so pursuant to the State’s Plan, currently focuse d on closing MDC, without the construct or implementation of any m eaningful and effectiv e process consideration of individualized assessments of their individual service needs.
68. Defendants have proposed, and are curre ntly utilizing a t MDC, a purported “assessment process,” which on its face is entirely inadequate and incapable of a meaningful and effective implementation with re spect to th e Individual Plaintiffs a nd the Plaintiff-Class Members, all of whom are adul ts with profound developm ental disabilities that render them cognitively in the age-range of infant-toddlers or, at best, a young children.
69. The inherent flaw in Defendants’ purpor ted assessment process is illustrated a s follows: A January 3, 2012 e mail communication from Mark Doyle (“Doyle”), T ransition of Care Project Manager, Office of the Governor, JRTC, to Plaintiff-guardian, Rita Winkeler, described the State’s purported assessm ent process as designed to gain an “understanding of individuals’ strengths, desires, hopes and aspi rations” and to “m aximiz[e] opportunities for individuals to function with as m uch independence and self-determination as possible.” Em ail dated January 3, 2012, from M. Doyle to R. W inkeler, Attached at Exhibit C hereto and incorporated herein by reference.
70. Further, the January 3, 2012 Doyle em ail communication from Doyle to Plaintiffguardian Rita W inkeler provided that the Defendants’ assessment process envisions communications with the disabled individual to “learn about their fears, successes and failures. What works and does not work for the persons. Th eir preference and inte rest or wha t excites them.” Id. The Doyle email also described the goal of the assessment process as “designing the
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appropriate supports they will need to be successful and have a fulfilling life in the community.” Id. This boilerplate descriptive language describing the State’s pu rported assessment process is completely antithetical to the characteristics of profound developmental disabilities with which the Individual Plaintiffs and the Plaintiff-Class Members present. Importantly, by direct result of the specific services rendered through the State-operated S OCDs, the Defendants know of, and have known for some time pre-dating creation of th e assessment process, the overall severe and profound diminished cognitive capacity of the Individual Plaintiffs and Plaintiff-Class Members.
71. Notably, a m ajority of the Individual Pl aintiffs and Plain tiff-Class Members are non-communicative verbally, and/or in som e cases non-verbally, as well as imm obile in som e cases, and are far from having the cognitive abilities it would take to live independently (or even semi-independently) or to progress through “self-determination” to have a “fulfilling life in the community.” Defendants’ propos ed closure of SODCs without a meaningful and effective assessment process, or appropriate replacem ent services, is poorly conceived, reckless an d violates Title II of the ADA (42 U.S.C. § 1 2132) by placing individua ls with severe and profound developmental disabilities at unnecessary risk of hospitalization, injury or death.
72. Moreover, closure of SODCs without th e development of a m eaningful and effective quality of services assessment or process for appeal additionally violates the ADA Title II. The Defendants cannot demonstrate by any objective measure that the Individual Plaintiffs or Plaintiff-Class Members who were or are residents of SODCs will receive equivalent services in the proposed community based placem ents. The De fendants’ plan as carried out by CRA does not guarantee equivalent services or adequate replacement s ervices for the severely and profoundly developmentally disabled because its co re strategic priority is flawed – that an integrated setting (community-based placement) is appropriate regardless of the in tensity of the
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individual’s disabilities or the severity of hi s or her needs. Ac ross-the-board reduction in services attendant to th e closure of the SO DCs, without provision for adequate replacem ent services, will unlawfully and irreparably harm the Individual Plaintiffs and Plaintiff-Class Members. Moreover, the Ind ividual Plaintiffs’ and Plaintiff-Class Mem bers’ severe an d profound developmental and related medical conditions, ev en temporary gaps in service cou ld present serious consequences for them and place th em at great risk of hospitalizatio n, injury or death.
73. Additionally, the Defendants have not sp ecified to the In dividual Plaintiffs’ guardians, despite inquiries, or to the guardians of Plaintiff-Class Members, what services will remain available to them upon transfer from SODCs should the community-based setting approach not work. In fact, there h as been no inform ed choice or consent to any transfer o r revision of services to the Indivi dual Plaintiffs or Plaintiff-Class Members in reg ard to closing the SODCs and the transition to community car e based settings. Instead, Defendants have pressured Plaintiffs’ guardians to sign consents allowing for hurried, se cretive and perfunctory evaluations for placem ent in the co mmunity. In cases where the guard ian has refused such a questionable evaluation process and protocol, the Defendants ha ve indicated that CRA will choose the placement, completely taking the parent or guardian out of the process, in violation of federal law which guarantees that the parent or guardian must approve the choice of placem ent. See Affidavits, attached as Group Exhibit B and incorporated herein by reference.
74. For example, despite legal requirements that the State inform guardians about the adequacy of the disabled Individual Plaintiffs’ and Plaintiff-Class Members’ service options in the community setting, their respective guardians have been told by Defendant CRA that they cannot choose another SODC in lieu of transition to the comm unity setting. See Affidavits,
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attached as Group Exhibit B and incorporated herein by refere nce. Moreover, Plaintiffs’
guardians have received little ass istance, if any, if they choose a private ICF/D D setting. Id.
Those guardians have had to find an ICF/DD on their own, which is almost im possible because
ICF/DDs cannot, or will not, adm it individuals with severe a nd profound disabilities who are
currently being treated in SODCs in Illinois. Guardians have received documents from the PAS
agency for their signature where the “choice” box is pre-checked for “community.” Id. Some
guardians have been told that SODC or ICF/DD placem ent may be provided somewhere a great
distance away from their family. Id.
WHEREFORE, the Individual Plaintiffs and Pl aintiff-Class Members resp ectfully
request that this Court, in due course, issue orders of declarator y relief, as well as prelim inary
and permanent injunctive relief, in favor of the Plaintiffs as follows:
(a) Declaration that the Defendants collectively violated the Americans with Disabilities Act of 1990, as am ended, in the manner by which they have commenced to im plement the State’ s Plan to transi tion the profoundly disabled Plaintiffs from SODCs to community based res idential settings without ensuring the adequacy of transitioned medically necessary services;
(b) Defendants, Governor Patrick Quinn, Department of Human Services, and its Secretary, Michelle R.B. Saddler, and its Directo r of Developmental Disabilities, Kevin Case y and CRA, including their successors, agents, officers, servants, employees, attorneys and representatives and all persons acting in c oncert or participating with them, shall be enjoined an d restrained from implementing or en forcing the closure of SODCs , or reducing, terminating or m odifying SODC services, unless or until equivalent, appropriate replacem ent services are prov ided to prev ent inappropriate hospitalization, injury or death to residents in violation of the developmentally disabled reside nts’ rights under federal and state laws.
(c) Defendants, Governor Patrick Quinn Department of Human Services, and its Secretary, Michelle R.B. Saddler, and its Directo r of Developmental Disabilities, Kevin Case y and CRA, including their successors, agents, officers, servants, employees, attorneys and representatives and all persons acting in concert or participating with them, be ordered to:
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(i) Take all actions necess ary within the scope of their autho rity to implement the preliminary and permanent Injunctive orders;
(ii) Provide prompt notice to a ll SODCs of the term s of the preliminary and permanent injunctive orders;
(iii) Provide prompt notice to all residents of SODCs, their families and guardians, of the term s of the prelim inary and perm anent injunctive orders; and
(iv) For attorneys’ fees and costs, as well as such other relief as this Court deems just and proper. COUNT II:
VIOLATION OF SECTION 504 OF THE REHABILITATION ACT, 29 U.S.C. § 794 (Against all Defendants)
75. The Individual Plaintiffs and Plaintiff-Class Members incorporate by referenc e the allegations in paragraphs 1-74 of the Second Amended Complaint, above, as if set forth in Count II.
76. Section 504 prohibits discrim ination against individuals with disabilities by any program or activity, including an y department or agency of a State governm ent, receiving Federal financial assistance. 29 U.S.C.§ 794(a) and (b). “No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under a ny program or activity receiving Federal financial assist ance. . . .” 29 U .S.C. § 794; 45 C.F.R. §§ 84.4(a), 84.4(b) (1) (i), (iv) and (v99); 84.4(b) (2); 84.52(a)(1), (4) and (5).
77. Section 504 requires that state and local governments afford protected individuals with disabilities related services, program s and activities in “th e most integ rated setting appropriate to the needs of qualified individu als with disabilities.” 28 C.F.R. § 45.51(d) (emphasis added). That is, federally funde d state governm ents and agencies must m ake reasonable modifications to policies, practices and procedures to avoi d discrimination on the
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basis of disability, including the elim ination of services deemed necessary and appropriate to meet the needs of the qualified individual with disabilities. 29 U.S.C.§ 794(a).
78. Similar to violations under the ADA, as set fo rth above, the Defendants’ plan violates Section 504 of the Rehabilitation Act: (1) Defendants are di scriminating against the Individual Plaintiffs, as wel l as the Pl aintiff-Class Members, as il lustrated in the attached Plaintiffs’ Affidavits, attached as Group Exhibit B and incorpor ated herein by reference, by targeting developmental disabilities for greater reductions in fundi ng than other disabilities; (2) Defendants are preventing the Indi vidual Plaintiffs, as well as th e Plaintiff-Class Members, as illustrated in the attach ed Plaintiffs’ Affidavits attached as Group Exhibit B and incorporated herein by reference, from receiving services that are as effective as those provided to individuals with other disabilities; (3) De fendants’ reduced funding create s a substantial risk that the Individual Plaintiffs, as wel l as the Pl aintiff-Class Members, as il lustrated in the attached Plaintiffs’ Affidavits attached as Group Exhibit B and incorporated herein by reference, will not be able to live in “th e most integrated setting;” and (4) De fendants are limiting the number of accessible community residential settings available to the n on-ambulatory Individual Plaintiffs and the Plaintiff-Class Members.
WHEREFORE, The Individual Plaintiffs and Pl aintiff-Class Members resp ectfully request that this Court, in due course, issue orders of declarator y relief, as well as prelim inary and permanent injunctive relief, in favor of the Plaintiffs as follows:
(a) Declaration that the Defendants colle ctively violated Section 504 of the Rehabilitation Act, in the m anner by which they have comm enced to implement the State’s P lan to transition the profoundly disa bled Plaintiffs from SODCs to community based residential settings without ensuring the adequacy of transitioned medically necessary services;
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(b) Defendants, Governor Patrick Quinn, Department of Human Services, and its Secretary, Michelle R.B. Saddler, and its Directo r of Developmental Disabilities, Kevin Case y and CRA, including their successors, agents, officers, servants, employees, attorneys and representatives and all persons acting in c oncert or participating with them, shall be enjoined an d restrained from implementing or en forcing the closure of SODCs , or reducing, terminating or m odifying SODC services, unless or until equivalent, appropriate replacem ent services are prov ided to prev ent inappropriate hospitalization, injury or death to residents in violation of the developmentally disabled reside nts’ rights under federal and state laws.
(c) Defendants, Governor Patrick Quinn, Department of Human Services, and its Secretary, Michelle R.B. Saddler, and its Directo r of Developmental Disabilities, Kevin Case y and CRA, including their successors, agents, officers, servants, employees, attorneys and representatives and all persons acting in concert or participating with them, be ordered to:
(i) Take all actions necess ary within the scope of their autho rity to implement the preliminary and permanent Injunctive orders;
(ii) Provide prompt notice to a ll SODCs of the term s of the preliminary and permanent injunctive orders;
(iii) Provide prompt notice to all residents of SODCs, their families and guardians, of the term s of the prelim inary and perm anent injunctive orders; and
(iv) For attorneys’ fees and costs, as well as such other relief as this Court deems just and proper.
COUNT III: VIOLATION OF FEDERALLY RECOGNIZED OLMSTEAD PROVISIONS FOR
INTEGRATED COMMUNITY SERVICES (Against all Defendants)
79. The Individual Plaintiffs and Plaintiff-Class Members incorporate by referenc e
the allegations in paragraphs 1-78 of the Second Amended Complaint, above, as if set forth in
Count III.
80. The United States Suprem e Court held in Olmstead v. L.C., 527 U.S. 581 (1999)
that public entities are required to provide community-based services to persons with disabilities
when (a) such services are ap propriate; (b) the affected pers ons do not oppose community-based
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treatment; and (c) community-based services can be reas onably accommodated, taking into account the resources available to the entity and the need s of others who are receiving disability services from the entity.
81. Defendants have not demonstrated through an informed consent to the guardians of the Individual Plaintiffs or the Plaintiff-Class Members, that the State’s community-b ased setting approach will b e adequate or appropr iate for the In dividual Plaintiffs or Plaintif f-Class Members who are severely and profoundly developmentally disabled. That is:
(a) Defendants have not demonstrated any a ssurance of an adequate transition of available and necessary services to the Indiv idual Plaintiffs’ or Plai ntiff-Class Members’ by transitioning to properly staffed and licensed homes;
(b) Defendants have not de monstrated that th e State it is ab le to, and will, provide equivalent or adequate local licensed providers in transitioning from SODCs to community settings;
(c) Defendants have not de monstrated that the State is able to, and will, in form the guardians of the Individual Plain tiffs or Plaintiff-Class Members’ in advance of transition and, afterwards, provide them with a coordinated program of supervision in its plan for community placement. At best, Defendants have vaguely alluded to the guardians that licensed and/or unlicensed providers will “come and go” as needed, not taking into account for the almost certain level of emergencies that will arise when individuals used to very strict regiments are placed in a freer less supervised setting;
(d) Defendants have no t demonstrated that the State is able to, and will, accommodate the Individual Plaintiffs or Plaintiff-Class Members with placements in an ICFDD, where following transition it is evident that they cannot survive and thrive in a community-based setting.
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(e) Defendants have not demonstrat ed that the S tate is able to, and will, ensure that Individual Plaintiffs of Plaintiff-Class Members who cannot survive and thrive in a comm unitybased setting will have a safety net option to return to a facility with equivalent services in Illinois.
(f) Defendants have not de monstrated that the State is able to and will ens ure that money will be available for the payment of the provide rs of such services in the c ommunity beyond one year after placement.
(g) Defendants also have not, and cannot, demonstrate that the profoundly disabled Individual Plaintiffs or Plaintiff-Class Mem bers, by and through their respective parents or guardians, do not oppose community-based treatment. Indeed, some or all of the guardians were not afforded a m eaningful or fully informed opportunity for choice. See Affidavits, attached as Group Exhibit B and incorporated herein by reference.
(h) Defendants have not, an d cannot, demonstrat e that medically necessary services for the profoundly disabled Plain tiffs, and others similarly situated, m ay be transition ed or otherwise reasonably accommodated in transition from the SODCs to community settings, taking into account the resou rces available to the Stat e and the needs of others who are receiv ing disability services from the State.
WHEREFORE, the Individual Plaintiffs and the Pl aintiff-Class Members respectfully requests that this Court, in due course, issue orders of declarator y relief, as well as p reliminary and permanent injunctive relief, in favor of the Plaintiffs as follows:
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(a) Declaration that the Defendants collectively violated the mandate set forth by the United States S upreme Court in Olmstead v. L.C. , 527 U.S. 581 (1999), that public entities are requir ed to dem onstrate compliance with the following prerequisites before a disabled individual m ay be transitioned from an institutionalized residential setting to a communitybased setting for services: (i) inf orming the disabled person or the guardian that such services are a ppropriate; (ii) af fording the d isabled person or the guardian a choice of whether to accept or oppose community-based treatment; and (iii ) evidencing that co mmunity-based services can be reasonably acco mmodated, taking into account the resources available and the needs of others who are receiving disability services from the public entity.
(b) Defendants, Governor Patrick Quinn, Department of Human Services, and its Secretary, Michelle R.B. Saddler, and its Directo r of Developmental Disabilities, Kevin Case y and CRA, including their successors, agents, officers, servants, employees, attorneys and representatives and all persons acting in c oncert or participating with them, shall be enjoined an d restrained from implementing or en forcing the closure of SODCs , or reducing, terminating or m odifying SODC services, unless or until equivalent, appropriate inform ed consent as to replacem ent services are provided to the Individual Plainti ffs’ and Plaintiff-Class Mem bers’ guardians to prevent inappropriate hospitalization, injury or death to residents in violation of the developm entally disabled residents’ rights under federal and state laws.
(c) Defendants, Governor Patrick Quinn, Department of Human Services, and its Secretary, Michelle R.B. Saddler, and its Directo r of Developmental Disabilities, Kevin Case y and CRA, including their successors, agents, officers, servants, employees, attorneys and representatives and all persons acting in concert or participating with them, be ordered to:
(i) Take all actions necess ary within the scope of their autho rity to implement the preliminary and permanent Injunctive orders;
(ii) Provide prompt notice to a ll SODCs of the term s of the preliminary and permanent injunctive orders;
(iii) Provide prompt notice to all residents of SODCs, their families and guardians, of the term s of the prelim inary and perm anent injunctive orders; and
(iv) For such other relief as this Court deems just and proper.
COUNT IV: 42 U.S.C. §1983-DEPRIVATION OF EQUAL PROTECTION
(Against All; Defendants)
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82. The Individual Plaintiffs and Plaintiff-Class Members incorporate by referenc e the allegations in paragraphs 1-81 of the Second Amended Complaint, above, as if set forth in Count IV.
83. Individual Plaintiffs, as the representatives of Plaintiffs’ Class Mem bers, are entitled to assert the individual constitutional and statutory rights of Plaintiffs’ Class Members with respect to the harm and injuries suffered as a result of Defendants’ actions.
84. At all times relevant, Defendants were acting under color of state law. 85. Defendants’ discriminatory actions, agai nst the Individual Plaintiffs and the Plaintiffs’ Class Members, were taken pursuant to Defendants’ custom, policy or practice. 86. By virtue of the actions set forth above , in implementing the closure of SODCs and the transfer of Individual Plaintiffs and Pl aintiffs’ Class Members to residential community settings, the Defendants have acted under color of law to deprive the Individual Plaintiffs and the Plaintiffs’ Class Mem bers of their civil rights to receive equal m edical services in a m anner consistent with the equal protecti on clause of fourteenth am endment in violation of 42 U.S.C. § 1983. 87. By depriving the Individual Plaintif fs and the Plaintiff-Class Mem bers of their rights to equal protection and treating them differently than others who receive m edical services from and through the State of Illinois funding, the Defendants have deliberately and intentionally violated the Individual Plainti ffs’ and t he Plaintiff-Class Members’ rights guaranteed by the Fourteenth Amendment to the Constitution of the United States. 88. The Individual Plaintiffs and the P laintiff-Class Members have suffered dam ages as a result of Defendants’ discri minatory actions, including but not limited to loss of medically
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necessary services in a facility (SODC) that is adequate ly equipped and staffed to provide the
necessary services.
89. The Defendants will continue such unlawfu l deprivation of equal righ ts in the
future unless and until restrained by this Court.
WHEREFORE, the Individual Plaintiffs and Pl aintiff-Class Members resp ectfully
request that this Court is sue orders of declaratory relief, as well as prelim inary and permanent
injunctive relief, in favor of the Plaintiffs as follows:
(a) Declaration that the Defendants collectively violated the rights of the Individual Plaintiffs and Plaintiff-Class Members under 42 U.S.C. § 1983 in the m anner by which they have commenced to im plement the S tate’s Plan to transition the profoundly di sabled Individual Plaintiffs and Plaintiff-Class Members from SODCs to community based residential settings without ensuring the adequacy of transitioned medically necessary services;
(b) Defendants, Governor Patrick Quinn, Department of Human Services, and its Secretary, Michelle R.B. Saddler, and its Directo r of Developmental Disabilities, Kevin Case y and CRA, including their successors, agents, officers, servants, employees, attorneys and representatives and all persons acting in c oncert or participating with them, shall be enjoined an d restrained from implementing or en forcing the closure of SODCs , or reducing, terminating or m odifying SODC services, unless or until equivalent, appropriate replacem ent services are prov ided to prev ent inappropriate hospitalization, injury or death to residents in violation of the developmentally disabled reside nts’ rights under federal and state laws.
(c) Defendants, Governor Patrick Quinn, Department of Human Services, and its Secretary, Michelle R.B. Saddler, and its Directo r of Developmental Disabilities, Kevin Case y and CRA, including their successors, agents, officers, servants, employees, attorneys and representatives and all persons acting in concert or participating with them, be ordered to:
(i) Take all actions necess ary within the scope of their autho rity to implement the preliminary and permanent Injunctive orders;
(ii) Provide prompt notice to a ll SODCs of the term s of the preliminary and permanent injunctive orders;
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(iii) Provide prompt notice to all residents of SODCs, their families and guardians, of the term s of the prelim inary and perm anent injunctive orders; and
(iv) For attorneys’ fees and costs, as well as such other relief as this Court deems just and proper. COUNT V:
VIOLATION OF FEDERAL & STATE LAWS PERTAINING TO MEDICAID (Against All Defendants)
90. The Individual Plaintiffs and Plaintiff-Class Members incorporate by referenc e
the allegations in paragraphs 1-89 of the Second Amended Complaint, above, as if set forth in
Count V.
91. Medicaid is a cooperative federal-stat e program designed to cover n ecessary
medical services for poor people. Participation in the Medicaid program is not mandatory for the
states, but once they choose to participate, they must operate their program s in conformity with
federal statutory and regulatory requirements. 42 U.S.C. § 1396a.
92. Each state choosing to participate in the Medicaid Program must designate a
single state agency which is responsible for ad ministering the Program. 42 U.S.C. § 1396a (a)
(5).
93. Medicaid law requires choi ce. The receipt of Medi caid funding is contingent
upon a state offering choice of ICF s/MR or Hom e and Community Based Services (“HCBS”)
waivers. A Medic aid HCBS waiver sha ll not be granted unless the stat e provides satisfactory
assurances that:
[S]uch individuals who are determ ined to be likely to requ ire the level of care provided in a hospital, nursing facility or intermediate care facility for the mentally retarded are informed of the feasible alternatives, if available under the waiver, at the choice of such individuals, to the provision of inpatient hospital, nursing facility services or services in an intermediate care facility for the mentally retarded.
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42 U.S.C. § 1396n(c)(2)(C). 94. When a recipient is determined to be likely to require the level of care provided in
an ICF/MR, the recipient or his or her legal representative must be: (1) Informed of any feasib le alternatives available under the waiver, and (2) Given the choice of either institutional or home and community-based services.
42 C.F.R. § 441.302. 95. The Plan must furnish CMS with suffici ent information to support assurances
required by § 441.302, including its “plan for inform ing eligible recipients of the feasible alternatives…institutional services or hom e and community-based services.” 42 C.F.R. § 441.303(d).
96. Illinois has provided the re quired assurances to re ceive HBSC waivers under Medicaid in the Illinois Administrative Code:
Section 120.80 Program assurances In addition to program requirements specified in other Sections of this Part, assurances for the Medicaid home and community-based services waiver program will include:
**** b) Informing individuals of choice All individuals requesting program services shall be given a choice of alternative servi ces through the PASARR pr ocess. The choice shall include both ICF/MR and community-based services. 59 Illinois Admin. Code § 120.80. Additionally, the Illinois Administrative Code’s eligibility determinations for its Medicare home and community-based services waiver program provides: Section 120.150 Eligibility determination
****
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c) Individuals or guardians sh all be given the choice of receiving State-operated developmental center, community ICF/MR or Medicaid home and community-based services.

59 Ill. Admin. Code § 120.150.

In accordance with 42 U.S.C. § 1396n(c)(2)(C) and 42 C.F.R. § 441.302, Illinois gave the

required assurances to CMS in its Application for the HCBS Waiver:

D. Choice of Alternatives: The State assures th at when an individual is determined to be likely to require the level of care specified for this waiver and is in a target group specified in Appendix B, the individual (or, legal representative, if applicable) is:

1. Informed of any feasible alternatives under the waiver; and,

2. Given the choice of either institutional or hom community-based waiver services.

e and

Appendix B specifies the proced ures that th e State em ploys to en sure that individuals are inform ed of feasible al ternatives under the wa iver and given the choice of institutional or home and community-based waiver services.

97. Here, Defendants have not dem onstrated that th e Plan to c lose all SODCs

provided any informed choice whatsoever the Individual Plaintiffs ’ or Plaintiff-Class m embers’

guardians.

98. The Plan, as proposed (and as im plemented in the closure of JDC) does not give

the Individual Plaintiffs or Plaintiff-Class Members the legally requisite choice—rather it forces

all SODC residents to transfer to community-based homes. Thus, the Plan to clos e the SODCs

without adequate inform ation and support requir ements, and without appropriate consultations

and choice, directly violates Fe deral Medicaid Program laws a nd Illinois State regulatory laws

related thereto.

WHEREFORE, the Individual Plaintiffs a nd Plaintiff-Class members respectfully

request that this Court, in due course, issue orders of declarator y relief, as well as prelim inary

and permanent injunctive relief, in favor of the Plaintiffs as follows:

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(d) Declaration that the Defendants collectively violated the aforem entioned Federal Medicaid Program laws and st ate law requiring the demonstration of “appropriate [services] consistent with the h abilitation needs” of the resident in effecting transition of se rvices to the disabled, see 405 ILCS 5/4-702d (a); and, further, Defenda nts collectively violated the aforementioned Federal Medicaid Pr ogram laws and state law requiring that “[i]ndividuals or gua rdians shall be given the choice of receiving State-operated developmental center, community ICF/MR or Medicaid home and community-based services.” 59 Ill. Adm. Code 120.150 (c).
(e) Defendants, Governor Patrick Quinn, Department of Human Services, and its Secretary, Michelle R.B. Saddler, and its Directo r of Developmental Disabilities, Kevin Case y and CRA, including their successors, agents, officers, servants, employees, attorneys and representatives and all persons acting in c oncert or participating with them, shall be enjoined an d restrained from implementing or en forcing the closure of SODCs , or reducing, terminating or m odifying SODC services, unless or until equivalent, appropriate replacem ent services are prov ided to prev ent inappropriate hospitalization, injury or death to residents in violation of the developmentally disabled reside nts’ rights under federal and state laws.
(f) Defendants, Governor Patrick Quinn, Department of Human Services, and its Secretary, Michelle R.B. Saddler, and its Directo r of Developmental Disabilities, Kevin Case y and CRA, including their successors, agents, officers, servants, employees, attorneys and representatives and all persons acting in concert or participating with them, be ordered to:
(i) Take all actions necess ary within the scope of their autho rity to implement the preliminary and permanent Injunctive orders;
(ii) Provide prompt notice to a ll SODCs of the term s of the preliminary and permanent injunctive orders;
(iii) Provide prompt notice to all residents of SODCs, their families and guardians, of the term s of the prelim inary and perm anent injunctive orders; and
(iv) For attorneys’ fees and costs, as well as such other relief as this Court deems just and proper.
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Case: 1:13-cv-01300 Document #: 55 Filed: 05/13/13 Page 40 of 40 PageID #:845

DATED: May 13, 2013
Judy S. Sherwin Sherri Thornton-Pierce Sarah R. Burky Kathleen F. Howlett SHEFSKY & FROELICH LTD. 111 East Wacker Drive Suite 2800 Chicago, Illinois 60601 jsherwin@shefskylaw.com sthornton@shefskylaw.com sburky@shefskylaw.com khowlett@shefskylaw.com Telephone: (312) 527-4000 Facsimile: (312) 527-4011
1239090_2

PLAINTIFFS, ILLINOIS LEAGUE OF ADVOCATES FOR THE DEVELOPMENTALLY DISABLED; MURRAY PARENTS ASSOCIATION, INC.: INDIVIDUALLY AND ON BEHALF OF ALL PERSONS SIMILARLY By: SITUATED: RITA WINKELER, KAREN KELLY, LAUREEN STENGLER, STAN KRAINSKI, ELIZABETH GERSBACHER, BARBARA COZZONEACHINO, ROBYN PANNIER, JEANNIE L. WILLIAMS, DAVID IACONO-HARRIS, DR. ROBERT POKORNY, and GAIL K. MYERS
/S/ Judy Sherwin One of Their Attorneys

40

 
 Case: 1:13-cv-01300 Document #: 90 Filed: 06/12/13 Page 1 of 2 PageID #:1130

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

)

ILLINOIS LEAGUE OF ADVOCATES )

FOR THE DEVELOPMENTALLY,

)

DISABLED, et al.

)

)

Plaintiffs,

)

)

v.

)

)

ILLINOIS DEPARTMENT OF HUMAN )

SERVICES, MICHELLE R.B. SADDLER, )

in her official capacity as Secretary of the )

Illinois Department of Human Services, )

KEVIN CASEY, in his official capacity as )

Director of Developmental Disabilities of )

the Illinois Department of Human

)

Resources, and COMMUNITY

)

RESOURCE ALLIANCE,

)

)

Defendants.

)

)

Case No. 13 C 1300 Judge Marvin E. Aspen

Temporary Restraining ORDER

MARVIN E. ASPEN, District Court Judge:

On May 30, 2013, we granted Plaintiffs’ motion for a temporary restraining order

(“TRO”). (Dkt. No. 58.) After a conference with the parties to address their respective concerns

as to the language of the TRO, and having considered and address those concerns, we hereby

order:

A. The Defendants shall not transfer, discharge, or send on any overnight transition

visit any resident of the Murray Developmental Center (“Murray”) without the

written consent of the resident’s legal guardian. This provision will remain in

Case: 1:13-cv-01300 Document #: 90 Filed: 06/12/13 Page 2 of 2 PageID #:1131

effect until we rule on the pending motion for preliminary injunction. (Dkt. No. 58.) B. Nothing in this order shall restrict or prohibit Defendants from providing the residents with outside medical care when necessary, following Murray’s standard protocols and procedures for obtaining such care for a resident. Defendants shall not prevent the resident from returning to Murray forthwith after receiving such necessary medical care. C. Nothing in this order shall restrict or prohibit Defendants from conducting any pre-transition assessments, evaluations, or any other planning activities that do not involve removing a resident from Murray without the consent of the resident’s legal guardian. D. The parties shall exchange their evidentiary direct examination affidavits on or before July 17, 2013. Any witnesses whose affidavit is submitted thereby shall be available for cross-examination and redirect at the preliminary injunction hearing.

E. The parties shall designate which opposing party’s witnesses they will crossexamine on or before July 19, 2013.
F. The preliminary injunction hearing shall commence on 7/23/13 at 10:00 a.m.

Date: June 12, 2013

________________________________ Honorable Marvin E. Aspen U.S. District Court Judge
-2-

 
 Illinois League of Advocates for Developmentally, Disabled v. Quinn, Slip Copy (2013)

2013 WL 3168758 Only the Westlaw citation is currently available.
United States District Court, N.D. Illinois,
Eastern Division.
ILLINOIS LEAGUE OF ADVOCATES FOR the DEVELOPMENTALLY, DISABLED, et al., Plaintiffs, v. Patrick QUINN, et al., Defendants.
No. 13 C 1300. | June 20, 2013.
Attorneys and Law Firms
Kathleen Fitzgerald Howlett, Sarah R. Burky, Sherri L. Thornton-Pierce, Daniel Reza Saeedi, Judith Schwartz Sherwin, Shefsky & Froelich Ltd, Chicago, IL, for Plaintiffs.
Laura Marie Rawski, Marni M. Malowitz, Illinois Attorney General’s Office, Thomas A. Ioppolo, Chicago, IL, Patrick J. Boyle, Gunn and Gunn, Creve Coeur, MO, for Defendants.
Opinion
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge.
*1 Presently before us is Plaintiffs’ motion for preliminary injunction. (Dkt. No. 8.) Based on the parties’ briefs, their supporting affidavits and exhibits, and our review of the Second Amended Complaint (“SAC”), we conclude that we have subject matter jurisdiction only over the claims Plaintiffs brought on behalf of the current and former residents of the Murray Developmental Center (“Murray”) and the Jacksonville Developmental Center (“Jacksonville”), related to their allegedly harmful transfers out of those facilities. The claims premised on the future closures of other State Operated Development Centers (“SODCs”) in Illinois are not ripe. We dismiss those claims without prejudice, for the reasons stated below. We also briefly comment on the nature of the claims brought under the Americans with Disabilities Act.

BACKGROUND
SODCs are state operated residential facilities that provide care and services to severely developmentally disabled adults in Illinois. (Mem. at 2–3.) According to Plaintiffs, Defendants have begun to implement a plan to close down all SODCs in the state and transfer the residents to Community Integrated Living Arrangements (“CILAs”), which Plaintiffs claim are inadequate to suit the needs of many SODC residents. (Id. at 4–6.) One SODC, Jacksonville, was closed December 3, 2012, and another, Murray, is currently in the process of transferring residents in preparation for its closure on October 31, 2012.1 (Id. at 6–7; SAC ¶ 52.)

1

Pursuant to our Temporary Restraining Order dated

June 12, 2013 (Dkt. No. 90), Defendants have stopped

transferring Murray residents while the motion for

preliminary injunction is pending.

Plaintiffs seek to represent a class comprised of all Illinois SODC residents since January 1, 2011 who oppose placement in a CILA. (SAC ¶ 42.) Plaintiffs claim that Defendants are conducting the transfers in a manner the fails to properly assess the needs of the residents and forces them into CILAs under harmful and dangerous circumstances. (Id. ¶ 59; Mem. at 4–6.) They also allege that Defendants’ plan to close all SODCs discriminates against the proposed class because “it targets developmental disabilities for greater reduction in funding than other disabilities. It also discriminates against [the proposed class] because it eliminates an entire category of service, the one that cares for the most severely challenged persons and effectively withdraws treatment and care for them with no equivalent replacement.” (Mem. at 11–12.) Plaintiffs filed their motion for preliminary injunction on February 27, 2013, which is scheduled to be heard on July 23, 2013. (Dkt.Nos.8, 89.)
Although we will touch briefly on a substantive issue, this order primarily addresses our jurisdiction over Plaintiffs’ claims with respect to the issue of ripeness. “Jurisdiction is the power to declare law and without it the federal courts cannot proceed. Accordingly, not only may the federal courts police subject matter jurisdiction sua
1

Illinois League of Advocates for Developmentally, Disabled v. Quinn, Slip Copy (2013)

sponte, they must.” Wernsing v. Thompson, 423 F.3d 732, 743 (7th Cir.2005).
I. RIPENESS “The doctrine of ripeness focuses on the conduct of the defendant to determine whether the defendants actions have harmed, are harming, or are about to harm the plaintiff.” Teva Pharm. USA, Inc. v. Novartis Pharm. Corp., 482 F.3d 1330, 1337 (Fed.Cir.2007); Pfizer Inc. v. Apotex Inc., 726 F.Supp.2d 921, 933 (N.D.Ill.2010). It is well established that “one does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.” Pfizer, 726 F.Supp.2d at 933 (quoting Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 140, 95 S.Ct. 335, 357, 42 L.Ed.2d 320 (1974)). But a claim premised on future harm is not ripe “if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Harris v. Quinn, 656 F.3d 692, 700 (7th Cir.2011).
*2 Plaintiffs’ claims in this case are based on two types of harm. The first type of harm arises from the transfers of SODC residents into CILAs that are not equipped to properly care for them. The second type of harm is the discrimination that Plaintiffs allegedly face because of Defendants’ decision to close all SODCs in Illinois.
A. Claims arising out of harmful transfers Defendants do not dispute that Murray is closing and that they will continue to transfer Murray residents to CILAs. (Resp. at 2–3.) Neither do they dispute that they have already closed Jacksonville and transferred at least some of those residents to CILAs. (Id.) Plaintiffs’ allegations in the SAC and motion for preliminary injunction, as well as their supporting affidavits, point to specific circumstances underlying their claim that these transfers are harmful to residents who are not suited to live outside of an SODC. (Mem. at 5–6; Reply, Ex. A–D.)
We make no determination at this time regarding the merits of any claim, but based on the materials before us, we conclude that the harms arising from the future transfers of Murray residents are not hypothetical or speculative. Absent the present lawsuit, the transfers from Murray certainly will continue. Plaintiffs have offered sufficient allegations and affidavit testimony to establish, solely for the purposes of determining jurisdiction, that

the transfers will result in harm to at least some of the residents. Accordingly, we hold the claims of current and former Murray and Jacksonville residents related to their past or impending transfers are ripe for judicial review.
With respect to the residents of other SODCs, however, claims premised on future harmful transfers are not yet ripe. “Inquiries into ripeness generally address two factors: first, whether the relevant issues are sufficiently focused so as to permit judicial resolution without further factual development; and, second, whether the parties would suffer any hardship by the postponement of judicial action.” Triple G Landfills, Inc. v. Bd. of Comm’rs of Fountain Cnty., Ind., 977 F.2d 287, 288–89 (7th Cir.1992); Medline Indus., Inc. v. Ram Med., Inc., 892 F.Supp.2d 957, 963 (N.D.Ill.2012). Neither factor favors the exercise of jurisdiction over the claims related to future SODC closures.
The harms arising from the past and impending transfers of Murray and Jacksonville residents are very fact-specific. They depend on the details of the Defendants’ assessment process, the circumstances of the specific CILAs receiving the residents, and needs of the individual residents. See, e.g., Reply, Ex. C–D (describing the particular needs of the affiant’s relatives at Murray, and the specific risks of community placement for those individuals). We cannot conclude without further factual development that the harms arising from the particular circumstances at Murray and Jacksonville will necessarily arise as other SODCs close. Until the particulars of the transfer process at the other SODCs become more evident, there is no way for us to know what harms, if any, those residents face. Under these circumstances, any decision we could make with respect to those future transfers would be no more than an advisory opinion dictating to the State how to proceed. Furthermore, postponing judicial action will not impose any hardship on the residents of the other SODCs. These facilities are not currently closing, and the residents are not at immediate risk of transfer. (Resp. at 5.) No judicial action is necessary to protect their interests at this time.
*3 Thus, the claims of residents in the other SODCs related to their possible future transfers are not ripe, and we therefore lack jurisdiction over those claims.
B. The discriminatory elimination of all SODCs The second type of harm underlying Plaintiffs’ claims is the discrimination Plaintiffs allegedly face as a result of
2

Illinois League of Advocates for Developmentally, Disabled v. Quinn, Slip Copy (2013)

the closure of all SODCs. This alleged discrimination is hypothetical and speculative, however, because “it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Harris, 656 F.3d at 700.
The parties dispute whether Defendants actually plan to close all of the SODCs. Plaintiffs have submitted affidavits from two Murray employees testifying that they attended a meeting at which Michael Gelder, a senior advisor to Governor Quinn, stated that Defendants are planning to close all of the SODCs in Illinois. (Reply, Exs. A and B.) Plaintiffs have also submitted affidavits from two parents of residents at Murray, who testify that state officials have told them that all SODCs will close. (Id., Exs. C and D.) Additionally, Plaintiffs submit a document entitled “Governor Quinn’s Rebalancing Initiative—November 2011.” (Id., Ex. E.) According to that document, Defendants “will reduce the number of residents served by [SODCs] by at least 600 by the end of FY 14. This will permit [Defendants] to close up to four facilities in the next 2.5 years.” (Id.) In response, Defendants submit the testimony of Defendant Kevin Casey, the Director of the Division of Developmental Disabilities at the Illinois Department of Human Services, who is responsible for overseeing transfers of SODC residents to CILAs. (Resp., Ex A ¶ ¶ 1–2.) Mr. Casey states that other than Murray, “[n]o other SODC has been slated for closure to date. I am not aware of any plan to close every SODC in the State of Illinois.” (Id. ¶ 19.)
With this evidence before us2, we hold that the closure of all SODCs in the State of Illinois is speculative at this point. Assuming for the present purposes that the document submitted by Plaintiffs is an accurate description of Defendants’ intentions, it shows that the State only plans to close “up to four facilities” by the end 2014. And while we do not doubt the veracity of Plaintiffs’ affidavits, we do not believe that the statements described therein mean that the closure of all SODCs in Illinois is even close to certain. The statements of government officials are not necessarily true predictors of their future behavior. Even if Defendants do presently intend to close the last SODCs in the state sometime after 2014, which they dispute, their ability to carry out the closures depends on too many unforeseeable factors—shifting political considerations, economic factors, electoral results, and ongoing policy reassessments over the next two or three years—for us to conclude at this time that the alleged harm is imminent.

2

“It is proper for the district court to look beyond the

jurisdictional allegations in the complaint and to view

whatever evidence has been submitted in determining

whether subject matter jurisdiction exists.” Roman v.

U.S. Postal Serv., 821 F.2d 382, 385 (7th Cir.1987); see

also Apex Digital, Inc. v. Sears, Roebuck & Co., 572

F.3d 440, 444 (7th Cir.2009).

Plaintiffs urge us to consider Sierra Club v. Franklin County Power of Illinois, LLC, where the plaintiff brought a claim based in part on the future health and environmental harms posed by the construction of a coal power plant. 546 F.3d 918, 925–26 (7th Cir.2008). In that case, the Seventh Circuit held that the harm was not speculative, because construction of the power plant was already underway and the defendants had unequivocally stated their intention to complete construction. Id. at 926. Plaintiffs argue that the statements of the government officials here create the same level of certainty regarding future harm as the statements of the defendants in Sierra Club. (Reply at 4.) But while the defendants in Sierra Club did not dispute their intention to complete construction of the power plant, Defendants here do dispute their intention to close all SODCs. And the only public statement we have seen from Defendants is the Rebalancing Initiative, describing a plan to close four SODCs by 2014. (Reply Ex. E.) This document undercuts any statements that government officials made privately to Murray staff and family. Therefore, the possibility of harm in this case is decidedly more tenuous than the future harm alleged in Sierra Club.
*4 We find this case more analogous to the situation facing the Eleventh Circuit in Association for Children for Enforcement of Support, Inc. v. Conger, 899 F.2d 1164 (11th Cir.1990). In that case, a state-court judge privately informed the plaintiffs, a child-support advocacy group, that he would no longer allow observers in court during child-support hearings. Id. at 1165. The plaintiffs sued, claiming that the judge’s policy violated their First and Fourteenth Amendment rights. Id. At the time of the lawsuit, however, the judge had not actually excluded the plaintiffs from any hearing. The court found that “this is plainly the type of hypothetical case we should avoid deciding.” Id. at 1166. It explained that “we do not generally decide cases based on a party’s predicted conduct. Of course, if the injury is certainly impending, that is enough. In this case, however, we are faced only with an unofficial ‘policy’ announced in an informal setting.” Id.
3

Illinois League of Advocates for Developmentally, Disabled v. Quinn, Slip Copy (2013)

Similarly here the statements on which Plaintiffs rely are too informal to amount to an official, enforceable government policy that might give rise to imminent future harm. The State has not taken any concrete steps to close any SODCs beyond the four mentioned in the Rebalancing Initiative, or publically announced official plans to do so. Under these circumstances, claims based on the harms caused by the elimination of all SODCs are not yet ripe for judicial review.

II. TITLE II CLAIMS We turn now to briefly address the nature of the claims brought by Plaintiffs under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132.3 Plaintiffs contend that Defendants’ plan violates the ADA because it targets the developmentally disabled residents of SODCs for greater reductions in funding than those faced by other disabled individuals. (SAC ¶¶ 65, 78; Mem. at 11–13.) According to Plaintiffs, the reduction in funding prevents the potential class members from receiving services that are as effective as those offered other disabled individuals and deprives them of the right to live in the most integrated setting appropriate for their needs. (SAC ¶¶ 65, 78; Mem. at ¶¶ 1–13.)

3

“In view of the similarities between the relevant

provisions of the ADA and the Rehabilitation Act and

their implementing regulations, courts construe and

apply them in a consistent manner.” Radaszewski ex

rel. Radaszewski v. Maram, 383 F.3d 599, 607 (7th

Cir.2004); see, e.g., 29 U.S.C. § 794(a). Accordingly,

this discussion applies equally to Plaintiffs’

Rehabilitation Act claims, asserted in Count II of the

SAC.

In support of their claims, Plaintiffs cite to the Supreme Court’s decision in Olmstead v. L.C. ex rel. Zimring, which held that Title II requires states to provide community-based treatment for disabled persons, as opposed to institutionalization, under specified circumstances. 527 U.S. 581, 587, 597, 601–07, 119 S.Ct. 2276, 2181, 2185, 2187–90, –––L.Ed.2d ––––, ––––, ––––, –––– – –––– (1999). In so holding, the Supreme Court explained that “[u]njustified isolation ... is properly regarded as discrimination based on disability.” Id. at 597, 119 S.Ct. at 2187. The court acknowledged that integrated placement might never be appropriate for some individuals and, moreover, that the ADA should not be read to require “States to phase out institutions, placing

patients in need of close care at risk.” Id. at 605, 119 S.Ct. at 2189. The court further explained that a state’s obligation to provide integrated care for qualified, consenting individuals “is not boundless” and may be curtailed if the state shows that the requested modification would entail a fundamental alteration of its services. Id. at 603–06, 119 S.Ct. at 2188–90.
*5 Although some of the general principles set forth in Olmstead are relevant to the present matter, we find that this is not an Olmstead case. Plaintiffs do not claim they have been or will be deprived of placement in a community living environment—quite the contrary. They oppose such placement and, thus, do not fall within Olmstead’ s purview. Id. at 602–07, 119 S.Ct. at 2187–90 (holding that a state’s duty arises only where eligible disabled individuals “do not oppose such treatment”). Unjustified isolation constitutes discrimination under the ADA, but—based on our close reading of Olmstead and the few relevant authorities—“it does not follow from Olmstead that the converse is true.”4 Richard S. v. Dep’t of Developmental Servs. of the State of Cal., No. 97 C 219, 2000 WL 35944246, at *3 (C.D.Cal. Mar.27, 2000); Richard C. ex rel. Kathy B. v. Houstoun, 196 F.R.D. 288, 292 (W.D.Pa.1999) (“[I]t does not logically follow that institutionalization is required if any one of the three Olmstead criteria is not met.”); Black v. Dep’t of Mental Health, 83 Cal.App.4th 739, 753–55, 100 Cal.Rptr.2d 39, 48–50 (Cal.Ct.App.2000) (placement of unqualified disabled man in community setting without guardian’s consent “might have been medically improper” but “did not violate the integration mandate”).

4

Two federal circuit courts of appeal have declined to

address the specific question of whether disabled

individuals have a cognizable right to continued

institutionalization. Ligas ex rel. Foster v. Maram, 478

F.3d 771, 774 (7th Cir.2007) (assuming, without

deciding, that proposed intervenors had a legal interest

in their continued institutionalization); Benjamin ex rel.

Yock v. Dep’t of Public Welfare of the Commonwealth

of Pa., 432 F. App’x 94, 98 (3d Cir.2011) (denying

intervention motion at the merits stage without reaching

the question of whether the proposed intervenors “have

a legally enforceable right to remain in the institution

where they currently reside”); see also Benjamin ex rel.

Yock v. Dep’t of Public Welfare of the Commonwealth

of Pa., 701 F.3d 938, 954–57 (3d Cir.2012) (allowing

disabled individuals opposed to community placement

to intervene because the terms of a settlement

agreement could lead to their integration in the future,

giving them a sufficient interest in the remedy phase of

the litigation).

4

Illinois League of Advocates for Developmentally, Disabled v. Quinn, Slip Copy (2013)

With that in mind, we turn to consideration of how Plaintiffs’ claims fit under Title II. The SAC does not specify the type of Title II claims asserted by Plaintiffs, but there are three possible avenues. “A Title II claim under the ADA ‘may be established by evidence that (1) the defendant intentionally acted on the basis of disability, (2) the defendant refused to provide a reasonable modification, or (3) the defendant’s rule disproportionally impacts disabled people.’ ” Wis. Comm. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 753 (7th Cir.2006) (quoting Washington v. Ind. High School Athletic Assoc., 181 F.3d 840, 847 (7th Cir.1999)). In preparation for the hearing, we admonish the parties to tailor their presentations on the ADA and Rehabilitation Act claims to the elements of—and any available defenses to—these theories. If Plaintiffs do not intend to pursue each of the three Title II theories, they should inform Defendants and the court as soon as possible.

CONCLUSION
For the reasons stated above, we hold that our jurisdiction in this case extends only to the claims Plaintiffs brought on behalf of the current and former residents of the Murray and Jacksonville SODCs, related to their allegedly harmful transfers out of those facilities. We dismiss without prejudice all of Plaintiffs’ claims premised on the future closure of other SODCs in Illinois. The evidence of the parties presented at the July 23, 2013 hearing on the preliminary injunction motion shall be confined to those issues within our subject matter jurisdiction and as set forth in this holding. It is so ordered.
	  

5

 
 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

)

ILLINOIS LEAGUE OF ADVOCATES )

FOR THE DEVELOPMENTALLY,

)

DISABLED, et al.

)

)

Plaintiffs,

)

)

Case No. 13 C 1300

v.

)

)

Judge Marvin E. Aspen

ILLINOIS DEPARTMENT OF HUMAN )

SERVICES, MICHELLE R.B. SADDLER, )

in her official capacity as Secretary of the )

Illinois Department of Human Services, )

KEVIN CASEY, in his official capacity as )

Director of Developmental Disabilities of )

the Illinois Department of Human

)

Resources, and COMMUNITY

)

RESOURCE ALLIANCE,

)

)

Defendants.

)

)

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Court Judge:

On June 12, 2013, we entered a temporary restraining order (“TRO”) (Dkt. No. 90) in

this case, enjoining Defendants from transferring residents out of Murray Developmental Center

(“Murray”) without the consent of their legal guardians while the motion for preliminary

injunction (Dkt. No. 8) remains pending. We subsequently entered an order addressing the

limits of our jurisdiction over Plaintiffs’ claims under the ripeness doctrine. (Dkt. No. 98.) The

parties have filed motions seeking clarification of the TRO and resolution of certain disputes

regarding a confidentiality order. (Dkt. Nos. 100, 104–5.) We assume familiarity with the

factual background of this case as set forth in our prior orders.

I. CLARIFICATION OF THE TRO

A. Wards of the Office of the State Guardian (“OSG”) The parties filed motions for clarification because of a perceived discrepancy between the TRO and a footnote in our subsequent order on the issue of ripeness. (Dkt. No. 102 at 1–2; Dkt. No. 105 at 2–5.) The TRO prohibits the transfer of Murray residents without the consent of their legal guardians. (Dkt. No. 90.) The footnote stated generally that “Defendants have stopped transferring Murray residents while the preliminary injunction is pending” (Dkt. No. 98 at 2, n.1.), which the parties apparently read as prohibiting all transfers, with or without guardian consent. The parties read too much into the footnote. The footnote was simply an explanatory aside in the background section of our most recent opinion. It observed that while transfers of Murray residents may be impending for the purposes of the ripeness analysis, as a factual matter they would not proceed during the pendency of the TRO. This observation in no way determined or interpreted the scope and effect of the TRO. The real issue underlying the present motion is whether Defendants may transfer Murray residents who are wards of the OSG with the OSG’s consent. Our TRO did not address this issue directly. But it generally permits the transfer of residents with the consent of their legal guardian, without making any specific exceptions in the case of OSG wards. (Dkt. No. 90 ¶ A.) Plaintiffs argue that the consent of the OSG is invalid, because the guardian, Frieda Omar, is not acting in the best interests of her wards. (Dkt. No. 105 at 5; Dkt. No. 71 at 8.) They also claim the OSG, as an arm of the State, has a conflict of interest in this case. (Id.) In Struck v. Cook County Public Guardian, however, the Seventh Circuit held that federal courts lack jurisdiction over legal challenges to the actions of state-appointed guardians. 508 F.3d 858,
2

859–60 (7th Cir. 2007). In that case, the plaintiff alleged that a state-appointed guardian was abusing and isolating his mother. Id. at 859. The court held that under the Rooker-Feldman doctrine, a federal court could not review a state court decision to appoint a guardian. Id. And with respect to the guardian’s conduct after appointment, the “probate exception” prevents federal courts from interfering with the state court’s authority to manage and supervise the guardians they appoint. Id. at 860.
A recent case in this district applied Struck to foreclose claims similar to those at issue in this case. M.G.S. ex rel. Sykes v. Toerpe, No. 11 C 7934, 2012 WL 3235240, at *2–3 (N.D. Ill. Aug. 6, 2012). In that case, the plaintiffs brought claims on behalf of state ward M.G.S., under Title II and III of the ADA, § 1983, and other legal theories, on the basis that M.G.S. was “being isolated, prevented from living where and how she chooses, denied medical treatment, prevented from assisting in the management of her affairs, and otherwise mistreated.” Id. at *1. After examining Struck, the court concluded that it had “no jurisdiction to invalidate, modify, or place conditions on, the state-court judgment appointing M.G.S.’s guardian.” Id. at *3.
Plaintiffs cited three cases in their reply to the motion for TRO where a federal court either invalidated a guardianship or appointing a guardian ad litem, but none of them involved a guardian appointed by a state court and acting on behalf of the state. (Dkt. No. 71 at 8.) The distinction is critical. Federal courts cannot assume authority over a state-appointed guardian without impermissibly invading the jurisdiction of the state court.
We will allow Plaintiffs two days to file a response if they believe we have any basis to exercise jurisdiction over claims related to the conduct of the OSG, in light of Struck and M.G.S.. If Plaintiffs file a response, Defendants will have one day to reply. Otherwise, the order will
3

stand as written, permitting Defendants to transfer wards of the OSG from Murray with the OSG’s consent.
B. Former Jacksonville Developmental Center (“Jacksonville”) residents Defendants also ask us to clarify the “the scope of the case with respect to the 2012 closure of Jacksonville Developmental Center,” in light of our recent opinion on ripeness. (Dkt. No. 102 at 2.) That opinion held that we lack jurisdiction over certain claims related to future closures of SODCs that are not impending, because those claims are not ripe. (Dkt. No. 98 at 1.) Jacksonville is already closed, so the opinion has no effect on the claims of former Jacksonville residents. Plaintiffs’ proposed class includes “[a]ll severe and profound developmentally delayed adult individuals who reside presently, or resided in the past, in [an SODC] at any time since January 1, 2011, or at any time during this litigation, who oppose any transfer from their SODC to a community housing setting.” (2d Am. Compl. ¶ 42.) All former Jacksonville residents who fit that definition remain potential class members, and those who are named plaintiffs remain named plaintiffs. Their status in this case has not changed. It is true that the claims of former Jacksonville residents may not have an immediate bearing on the present motion for preliminary injunction. That is because injunctive relief, by definition, is prospective. The focus of the pending motion is limited to whether we should prohibit impending transfers out of Murray. We cannot enjoin transfers that have already happened, so we do not expect the circumstances of former Jacksonville residents to be an issue at the upcoming hearing. We stress, however, that the claims of former Jacksonville residents remain viable insofar as they are potential class members or named plaintiffs, and we will consider them at the appropriate stage in this litigation.
4

C. Plaintiffs’ standing to represent unnamed class members Defendants contend that our opinion on ripeness gives them a basis for challenging Plaintiffs’ standing. (Dkt. No. 102 at 3.) Our opinion observed that resolution of claims based on allegedly harmful transfers out of SDOCs will necessarily require a fact-intensive inquiry. (Dkt. No. 98 at 4.) According to Defendants, this means that Plaintiffs lack standing to represent former Jacksonville residents who are unnamed plaintiffs, because a fact-intensive inquiry “requires participation of individual members in the lawsuit,” thus precluding Plaintiffs’ “associational standing” to represent them as an organization. (Dkt. No. 102 at 2 (citing Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333, 343 (1977).) Defendants’ argument fails for two reasons. First, an examination of the facts surrounding the transfers of individual residents does not necessarily require the residents’ participation as named parties. Should we grant class certification, Plaintiffs as class representatives should be capable of discovering and submitting evidence regarding the specific circumstances of individual transfers to the extent necessary. Second, the validity of Plaintiffs’ representation of unnamed parties is an issue we will resolve on a motion for class certification, under the standards set forth under Federal Rule of Civil Procedure 23. An inquiry into organizational standing is not necessary or appropriate at this time. A closely related point requires further clarification. Defendants’ argument here appears to presuppose that prior to class certification, injunctive relief cannot apply to unnamed parties. (Dkt. No. 102 at 3 (“It is difficult to see how the plaintiffs . . . with no certified class, and no finding by the Court of sufficient commonality of issues and fact and law, would have associational standing to represent any former Jacksonville residents beyond the named
5

plaintiffs.”).) Indeed, in earlier briefing, Defendants stated baldly that the “entry of the TRO protects the named Plaintiffs . . . The Court did not rule, in a case that is not a class action, that the Plaintiffs can in effect speak for all residents and override guardian decision-making.” (Dkt. No. 77 at 2.)
Defendants are incorrect. This case is a class action, and we have never ruled that injunctive relief prior to certification only applies to named plaintiffs. District courts have the power to order injunctive relief covering potential class members prior to class certification.
“In the civil rights field, it is common to find an immediate need for preliminary injunctive relief, in order to maintain the status quo or to afford relief on a timely basis.” 3 Newberg on Class Actions § 9:45 (4th ed. 2002). “The court may conditionally certify the class or otherwise order a broad preliminary injunction, without a formal class ruling, under its general equity powers. The lack of formal class certification does not create an obstacle to classwide preliminary injunctive relief when activities of the defendant are directed generally against a class of persons.” Id; see also N.Y. State Nat. Org. For Women v. Terry, 697 F. Supp. 1324, 1336 (S.D.N.Y. 1988) (rejecting the defendants’ argument that “the Court is without power to grant relief to a class that has not been certified,” and holding that “the Court acted in the only reasonable manner it could under the circumstances, ruling on the continuation of [the] temporary restraining order and leaving the question of class certification for another day.”); Giorgi v. Doody, 537 F. Supp. 1251, 1252 (D. Mass. 1982) (entering an order prohibiting the destruction of files related to unemployment compensation claims of potential class members); Leisner v. New York Tel. Co, 358 F. Supp. 359, 371 (S.D.N.Y. 1973) (“[R]elief as to the class is appropriate at this time even though when the preliminary injunction motion was heard, the class
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action had not yet been certified. In the interim between the commencement of the suit as a class action and the court’s determination as to whether it should be so maintained it should be treated as a class suit.”).
The TRO prevents the unconsented transfer of residents out of Murray while the motion for preliminary injunction is pending, regardless of whether the residents are named plaintiffs or not. It is necessary in order to prevent Defendants from rendering the claims of both named plaintiffs and potential class members moot, by transferring them out of Murray prior to the proper resolution of their claims. At this early stage in the proceedings, the class allegations in the Second Amended Complaint are sufficient to establish Plaintiffs’ standing to seek immediate injunctive relief on behalf of the proposed class. At a later stage, we may revisit whether that classwide representation is inappropriate, but until that time, we will preserve the status quo (within the limits set forth in the TRO) with respect to all potential class members. II. CONFIDENTIALITY ORDER
The parties have exchanged proposed Confidentiality Orders, but find themselves at an impasse on the redaction of identifying information from medical records and the confidentiality of depositions. (Dkt. Nos. 100 at 1–3 and 105 at 5–6.) Plaintiffs additionally request that expert testimony be presented live at the hearing, rather than by affidavit. (Dkt. No. 105 at 7.)
A. Redaction of Medical Records Defendants stress the private nature of the information contained in the medical records (Dkt. No. 100 at 3), but offer no convincing reason why the confidentiality order is insufficient to protect that information in unredacted form. Plaintiffs point out that complete redaction of all identifying information will impose a significant burden on them, because it will prevent them
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from matching the records to the correct Murray residents. (Dkt. No. 105 at 6–7.) We agree with Plaintiffs that the complete redaction of all identifying information is unnecessary, and adopt their request to leave names and ages unredacted.
B. Confidentiality of Depositions Defendants’ proposed order includes “Alternative B” of Paragraph 4, suggested in this district’s Model Confidentiality Order, which provides that all deposition testimony will be confidential “until the expiration of 14 days after the transcript is delivered, but no later than 60 days after testimony is given.” (Dkt. No. 100 at 2.) Defendants argue that this is the best course because, given the expedited nature of discovery at this point, it will be “too difficult and inefficient to indicate which portions are being designated confidential on the record at the time of the deposition.” (Id. at 4–5.) Plaintiffs argue that designating all depositions as confidential at the outset would “add an unnecessary burden as the parties prepare for the preliminary injunction hearing and future discovery” (Dkt. No. 105 at 7), but offers no explanation of what that burden might be. We agree with Defendants that the deposition testimony is likely to refer to confidential information, and that it will be more efficient to designate them all as confidential for the limited time set forth in the model order. C. Expert witness testimony Defendants do not oppose Plaintiffs’ request for live expert testimony. We will allow the experts to testify at the hearing in a narrative format, similar to affidavit form.
CONCLUSION
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In accordance with Part I, Plaintiffs may submit a response within two days of the entry of this order, regarding our jurisdiction to hear challenges to the conduct of the OSG. If Plaintiffs choose to submit a response, Defendants may submit a reply within one day. The parties shall submit a joint propose confidentiality order within three days, in accordance with our holdings in Part II. It is so ordered.

Date: June 28, 2013

________________________________ Honorable Marvin E. Aspen U.S. District Court Judge

9

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

)

ILLINOIS LEAGUE OF ADVOCATES )

FOR THE DEVELOPMENTALLY,

)

DISABLED, et al.

)

)

Plaintiffs,

)

)

v.

)

)

PATRICK QUINN, et al.

)

)

Defendants.

)

)

Case No. 13 C 1300 Judge Marvin E. Aspen

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Court Judge:

Presently before us is Defendants’1 motion to dismiss Plaintiffs’ second amended

complaint. (Dkt. No. 162.) As discussed below, the motion is granted in part and denied in part.

BACKGROUND2

In their five-count complaint, 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 state operated development centers (“SODCs”)—Jacksonville and

1 Defendants Illinois Department of Human Services (“DHS”), Kevin Casey, Michelle R.B. Saddler, and Patrick Quinn filed the motion to dismiss on August 9, 2013. Defendant Community Resource Associates, Inc. (“CRA”), named in the complaint as Community Resource Alliance, adopted the pending motion on August 13, 2013.
2 We assume familiarity with the background of this case, previously recounted in other opinions, and will discuss specific allegations in more detail where necessary to our analysis.

Murray3—and who oppose transfer from their SODC home to a community integrated living
arrangement (“CILA”).4 (Compl. ¶¶ 1–4, 42–50, 58.) Based on their profound disabilities, the
putative class members are entitled to receive a level of care and treatment known as ICF/MR
services (Intermediate Care Facility of the Mentally Retarded). These services are available at
three types of facilities: (1) private facilities, known as ICF-DDs (Intermediate Care Facility for
Persons with Developmental Disabilities); (2) SODCs; or (3) CILAs, under certain
circumstances. (Id. ¶¶ 19–20, 74, 93–94, 98; see Pls.’ Br. ISO Legal Theory (Dkt. No. 159) at
4–5.) Plaintiffs allege that the State of Illinois’ decision to close the Murray and Jacksonville
SODCs for budgetary reasons and force the disabled residents to move into CILAs violates
federal law.
According to Plaintiffs, community-based placements are unsuitable for the needs of the
profoundly disabled class members and pose serious threats to their physical safety and
emotional well-being. (Compl. ¶¶ 3, 6–7, 25–27, 31–34, 57–61 & Ex. B (Winkeler & Kelly
3 Jacksonville closed on or about December 3, 2012. (Compl. ¶ 52, 56–57.) Murray had been slated to close on October 31, 2013, though this litigation has delayed that process. (Id. ¶ 52.) Pursuant to our temporary restraining order dated June 12, 2013, (Dkt. No. 90), Murray residents may not be transferred without the consent of their legal guardians. A preliminary injunction hearing is scheduled for January 6, 2014 with respect to the residents and closure of Murray.
4 The complaint originally asserted class claims covering all Illinois SODC residents since January 1, 2011, consistent with Plaintiffs’ allegation that the State intends to close all SODCs. (Compl. ¶¶ 2–4, 6–7, 42, 60, 62.) We previously dismissed Plaintiffs’ claims on behalf of residents at SODCs other than Jacksonville and Murray. We concluded that we lacked jurisdiction over those claims because they were speculative and not yet ripe for judicial review. (6/20/13 Op., Dkt. No. 98.)
We also previously dismissed claims asserted on behalf of class members who are wards of the Office of the Special Guardian. (7/18/13 Op., Dkt. No. 135.) We lack jurisdiction over those claims, which are now pending in a lawsuit filed in the Circuit Court of Clinton County, Illinois (Case No. 2013 CH 49).
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Affs.).) As a result, Plaintiffs have refused to consent to CILA transfers. Plaintiffs further allege that Defendants have not offered spots at other SODCs or adequate replacement services equivalent to those offered at SODCs. Plaintiffs claim that, to the contrary, Defendants have undertaken a flawed assessment process that has predetermined class members’ ability to succeed in a CILA. (Id. ¶¶ 60–62, 66–74). For example, Plaintiffs allege that they have received paperwork for their approval where their “choice” has been preselected to authorize community living for their wards. (Id. ¶ 74.) In addition, Plaintiffs allege that the class members are either unlikely or unable to obtain care at a private ICF-DD facility. (Id.) Accordingly, Plaintiffs and their wards have little choice but to move to a CILA. (See id. ¶ 73 (alleging that Defendants have indicated they will choose community placements for residents over guardian objections).) In addition, Plainitffs have been informed that, if the CILA placements fail, former Murray and Jacksonville residents may need to seek services in other states. (Id. ¶ 74.)
Plaintiffs contend that Defendants’ conduct—particularly implementation of the allegedly rigged assessment and transfer process—discriminates against the class members on the basis of their disabilities in violation of the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act, denies them equal protection, and deprives them of choice as required by the Medicaid Act. They seek injunctive relief preventing the assessment and transfer of Murray residents, the closure of Murray, and appointment of a monitor. Defendants raise a number of arguments in their motion to dismiss, which we address below.
STANDARD OF REVIEW A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is meant to test the sufficiency of the complaint, not to decide the merits of the case. Gibson v. City of Chi., 910
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F.2d 1510, 1520 (7th Cir. 1990). In evaluating a motion to dismiss, we must accept all wellpleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). A court may grant a motion to dismiss under Rule 12(b)(6) only if a complaint lacks enough facts “to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949–50 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)); Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618–19 (7th Cir. 2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.
Although a facially plausible complaint need not give “detailed factual allegations,” it must allege facts sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S. Ct. at 1964–65. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. These requirements ensure that the defendant receives “fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555, 127 S. Ct. at 1964.
ANALYSIS I. ISSUES PREVIOUSLY ADDRESSED
We begin our analysis by briefly mentioning two questions previously resolved. First, in their motion, Defendants reiterate their request for dismissal of Plaintiffs’ claims for lack of subject matter jurisdiction. (Mem. at 5–6.) Defendants contend that Plaintiffs lack standing and that their claims are not ripe, because their alleged injuries are entirely speculative. (Id.; Reply
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at 4–6.) As Defendants concede, we previously rejected these arguments in our June 20, 2013 opinion. (Dkt. No. 98 at 3–8; see also 6/28/13 Op. (Dkt. No. 112) at 5–7.) Although Defendants wish to preserve these arguments for appeal, we need not revisit them.
Second, our June 20, 2013 opinion also essentially disposed of Count III of the complaint, which alleged a violation of the principles established in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 587, 597, 601–07, 119 S. Ct. 2276, 2181, 2185, 2187–90 (1999). In Olmstead, the Supreme Court held that Title II of the ADA requires states to provide community-based treatment for disabled persons, as opposed to institutionalization, under specified circumstances. In so holding, the Supreme Court explained that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” Id. at 597, 119 S. Ct. at 2187. As explained in our opinion, however, the putative class members here do not fall within Olmstead’s purview. Id. at 602–07, 119 S. Ct. at 2187–90 (holding that a state’s duty arises only where eligible disabled individuals “do not oppose such treatment”). As such, Count III is untenable. II. GOVERNOR QUINN AND DHS AS PARTIES
We turn now to the more substantive arguments raised by Defendants’ motion. Defendants claim that Governor Quinn is not a proper party to this lawsuit and that DHS cannot be sued with respect to Counts IV and V. (Mem. at 3–5; Reply at 3–4.) We agree.
Pursuant to the Eleventh Amendment, the Supreme Court “has consistently held that an unconsenting state is immune from suits brought in federal courts by her own citizens.” Edelman v. Jordan, 415 U.S. 651, 662–63, 94 S. Ct. 1347, 1355 (1974); see Peirick v. Ind. Univ.-Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d 681, 694–96 (7th Cir. 2007);
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Ameritech Corp. v. McCann, 297 F.3d 582, 585–86 (7th Cir. 2002). “State agencies and officials sued in their official capacities are ‘the state’ for Eleventh Amendment purposes.” Olison v. Ryan, No. 99 C 4384, 2000 WL 1263597, at *4 (N.D. Ill. Sept. 5, 2000) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312 (1989)); see Heabler v. Madigan, No. 12 C 6193, 2013 WL 5405679, at *3 (N.D. Ill. Sept. 24, 2013); Spain v. Elgin Mental Health Ctr., No. 10 C 1065, 2011 WL 1485285, at *4 (N.D. Ill. Apr. 18, 2011). There are three exceptions to the Eleventh Amendment’s bar, which arise where: (1) a state has waived its immunity and consented to suit in federal court; (2) Congress has abrogated state immunity through a valid exercise of its authority; or (3) a plaintiff seeks only prospective injunctive relief from appropriate state officials for allegedly ongoing violations of federal law, pursuant to Ex Parte Young, 209 U.S. 123, 157–60, 28 S. Ct. 441, 453–55 (1908). Ind. Protection & Advocacy Servs. v. Ind. Family & Social Servs. Admin., 603 F.3d 365, 371 (7th Cir. 2010); Cullen v. Ill. Dep’t of Human Servs., No. 12 C 1032, 2012 WL 1965384, at *3 (C.D. Ill. May 31, 2012); Spain, 2011 WL 1485285, at *4.
As Plaintiffs concede,5 DHS is thus immune from suit for Counts IV and V, both asserted via § 1983, because it is a state agency. It is well-recognized that state agencies may not be sued under § 1983 because of the Eleventh Amendment and because states cannot be considered “persons” subject to suit under § 1983. Wynn v. Ill. Dep’t of Human Servs., No. 11 C 3663, 2012 WL 2992132, at *2–3 (N.D. Ill. July 16, 2012); Cullen, 2012 WL 1965384, at *4; Spain, 2011 WL 1485285, at *4. We thus grant Defendants’ motion with respect to Counts IV and V as
5 In their response, Plaintiffs acknowledge that “[t]echnically, the DHS Defendants are correct.” (Resp. at 2.)
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against DHS. Pursuant to Ex Parte Young,6 however, these claims remain pending against two individual state officials, Michelle R.B. Saddler and Kevin Casey, whom Plaintiffs named as defendants in their official capacities. 209 U.S. 123 at 157–60, 28 S. Ct. at 453–55; Ind. Protection & Advocacy Servs., 603 F.3d at 371, 374; Wynn, 2012 WL 2992132, at *3; Cullen, 2012 WL 1965384, at *4.
Governor Quinn, on the other hand, is not a proper defendant for any of Plaintiffs’ claims. As the Supreme Court explained in Ex Parte Young:
In making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party. 209 U.S. 123 at 157, 28 S. Ct. at 453; Entm’t Software Ass’n v. Blagojevich, 469 F.3d 641, 645 (7th Cir. 2006); Weinstein v. Edgar, 826 F. Supp. 1165, 1166 (N.D. Ill. 1993). Although the source of an official’s authority is not material, a state official cannot be sued for prospective injunctive relief unless he or she has some connection to the enforcement or implementation of the particular law or conduct at issue. Ex Parte Young, 209 U.S. 123 at 157, 28 S. Ct. at 453; Fitts v. McGhee, 172 U.S. 516, 529–30, 19 S. Ct. 269, 274 (1899); Entm’t Software Ass’n, 469 F.3d at 644–45; Weinstein, 826 F. Supp. at 1166–67. Here, Plaintiffs allege that Governor Quinn, as the chief executive of the State, is “responsible for directing, supervising and controlling the executive departments of state government.” (Compl. ¶ 37.) He is “ultimately responsible for ensuring that Illinois operates its long-term care system for people with disabilities in conformance with federal and state laws.” (Id.) They further allege that Governor Quinn signed legislation that included a $1.6 billion cut
6 Neither of the other Eleventh Amendment exceptions apply here. -7-

to Medicaid, “endangering . . . the State’s residents, and in particular, individuals with severe and profound developmental disabilities.” (Id. ¶ 53.) Plaintiffs argue that Governor Quinn is a proper party because the actions at issue in the lawsuit “are taken at the behest of the Governor’s office.” (Resp. at 4.)
Consistent with precedent in this circuit, we hold that these allegations are insufficient to maintain an action against Governor Quinn. Hearne v. Bd. of Educ. of City of Chi., 185 F.3d 770, 776–77 (7th Cir. 1999); Union Benefica Mexicana v. Indiana, No. 11 C 482, 2013 WL 4088690, at *6 (N.D. Ind. Aug. 13, 2013); Sweeney v. Daniels, No. 12 C 81, 2013 WL 209047, at *3 (N.D. Ind. Jan. 17, 2013); Crosby v. Blagojevich, No.07 C 6235, 2008 WL 5111172, at *2 (N.D. Ill. Dec. 4, 2008); Deida v. City of Milwaukee, 192 F. Supp. 2d 899, 916–17 (E.D. Wis. Mar. 25, 2002); Olison, 2000 WL 1263597, at *4; Weinstein, 826 F. Supp. at 1167. A theory of liability predicated on a governor’s general obligations as the executive of the State cannot avoid the consequences of the Eleventh Amendment. Deida, 192 F. Supp. 2d at 917 (holding that the governor’s “general duty to enforce the laws” was not a sufficient connection); Olison, 2000 WL 1263597, at *4 (same); see also Crosby, 2008 WL 5111172, at *2 (dismissing governor who had no role in implementation or enforcement of a bill, nor the authority to nullify or amend it). Plaintiffs do not allege that Governor Quinn has any actual authority to enforce, curtail, or otherwise alter the assessment and transfer process at the SODCs. To the contrary, that process is coordinated by DHS, per its statutory mandate. (Mem. at 4; see Compl. ¶ 36 (alleging that DHS is the agency organized by law to provide services to the disabled and is implementing the planned SODC closures.) As the Seventh Circuit noted in Hearne, “the plaintiffs have not and
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could not ask anything of the governor that could conceivably help their cause.”7 185 F.3d at 777. Accordingly, Governor Quinn is dismissed from this action because he lacks the requisite connection to the allegedly unlawful conduct. III. EQUAL PROTECTION CLAIM
In Count IV, Plaintiffs allege that Defendants’ implementation of the Murray and Jacksonville closures violates the Equal Protection Clause of the Fourteenth Amendment in violation of 42 U.S.C. § 1983. (Compl. ¶ 86.) To state an equal protection claim, Plaintiffs must allege that Defendants: (1) “treated [them] differently from others who were similarly situated, (2) intentionally treated [them] differently because of [their] membership in the class to which [they] belonged (i.e., [developmentally disabled]), and (3) because [the disabled] do not enjoy any heightened protection under the Constitution, . . . that the discriminatory intent was not rationally related to a legitimate state interest.” Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 950–51 (7th Cir. 2002); City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 442, 105 S. Ct. 3249, 3255–56 (1985); Anderson v. Cornejo, 284 F. Supp. 2d 1008, 1037–38 (N.D. Ill. 2003); see also Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 367–68, 121 S. Ct. 955, 964 (2001) (confirming that the holding in Cleburne applies to the disabled such that state action is subject to rational basis review only); Doe v. Bd. of Trustees of Univ. of Ill., 429 F. Supp. 2d 930, 943 (N.D. Ill. 2006). Here, Plaintiffs claim that Defendants’ forced transfer of the class members to CILAs, without ensuring that medically necessary services will be available, deprives disabled residents of their right to receive equal medical services. (Id. ¶¶ 86–89.) They
7 The Seventh Circuit added that “it is not the Eleventh Amendment that bars the plaintiffs’ action for prospective injunctive relief against the governor; it is their inability to show that he bears any legal responsibility for the flaws they perceive in the system.” 185 F.3d at 777.
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allege that Defendants are deliberately treating them differently than others who receive medical services from and through the State. (Id. ¶ 87.)
Defendants argue that the equal protection claim must fail, however, because they have articulated a rational basis for their decisions to close the SODCs at issue and to transfer residents to CILAs. (Mem. at 19–20; Reply at 13–15.) As Defendants point out, “the rationalbasis test is a lenient standard” such that “the government’s action simply cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Smith v. City of Chi., 457 F.3d 643, 652 (7th Cir. 2006); D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681, 686 (7th Cir. 2013); Flying J Inc. v. City of New Haven, 549 F.3d 538, 546–47 (7th Cir. 2008). Nonetheless, “the rational basis standard . . . cannot defeat the plaintiff’s benefit of the broad Rule 12(b)(6) standard.” Wroblewski v. City of Washburn, 965 F.2d 452, 459 (7th Cir. 1999); Flying J Inc., 549 F.3d at 546 (also acknowledging this “perplexing situation” that arises when considering government rationales at the 12(b)(6) stage). To reconcile these standards, “the solution is to ‘take as true all of the complaint’s allegations and reasonable inferences that follow, [and then] apply the resulting ‘facts’ in light of the deferential rational basis standard.” Flying J Inc., 549 F.3d at 546 (quoting Wroblewski, 965 F.2d at 460). A plaintiff must foresee this dilemma and must “allege facts sufficient to overcome the presumption of rationality that applies to government classifications.” Wroblewski, 965 F.2d at 460; D.B. ex rel. Kurtis B., 725 F.3d at 686.
With these principles in mind, we conclude that Plaintiffs’ equal protection claim withstands the present motion. Although Defendants identify two reasons underlying their decisions concerning the SODCs, those explanations do not yet entitle them to a presumption of
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rationality, particularly with respect to the transfer decisions. First, Defendants contend that the decisions to close Murray and Jacksonville and to transfer their residents elsewhere are based solely on budgetary concerns. Plaintiffs readily admit that “cuts in the State’s budget may require fiscal austerity” and that the decision to close SODCs represents “a means to contend with the State’s $13 billion deficit.”8 (Compl. ¶¶ 7, 52.) We cannot draw from the complaint, however, any reasonable inference supporting Defendants’ further claim that moving residents to CILAs is less costly than some other alternative. Plaintiffs do not concede this discrete point, and Defendants have not explained how requiring all of the class member residents to transfer to group homes will save money. In reaching this conclusion we do not comment on the merits of this argument. At this stage, without factual support in the complaint or otherwise before us, we simply decline to hold that Defendants have established cost as the legitimate governmental rationale for mandating the transfer of Murray and Jacksonville residents to CILAs.
Defendants’ second explanation for their decision to move the developmentally disabled class members out of SODCs rests on the Supreme Court’s decision in Olmstead. 527 U.S. at 587, 597, 601–07, 119 S. Ct. at 2181, 2185, 2187–90. The Olmstead court held that Title II of the ADA requires states to provide community-based treatment for disabled persons, where the following three elements are met:
the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. Id. at 587, 119 S. Ct. at 2181. In its opinion, however, the court also emphasized that “nothing in
8 Plaintiffs have also acknowledged generally that they cannot require the State to maintain any particular facility.
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the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings.” Id. at 601–02, 119 S. Ct. at 2187. “Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it.” Id. at 602, 119 S. Ct. at 2188. The court acknowledged that integrated placement might never be appropriate for some individuals and, moreover, that the ADA should not be read to require “States to phase out institutions, placing patients in need of close care at risk.” Id. at 605, 119 S. Ct. at 2189.
In light of the Supreme Court’s admonitions, Defendants’ reliance on Olmstead here is misplaced. Surely Olmstead requires Defendants to provide community-based treatment when the three prerequisites, including patient consent, are satisfied. But Defendants’ efforts to comply with Olmstead do not justify the alleged forcing of CILA placements on class members and their guardians who vigorously oppose such placements. While Defendants may wish to encourage community-based treatment for all who qualify and consent pursuant to Olmstead, Plaintiffs’ complaint alleges far more draconian conduct. Plaintiffs claim that Defendants have predetermined group placements for the class members regardless of their needs, preselected guardian “choice” on authorization forms, threatened to evaluate and transfer class members over guardian objections, and denied guardian attempts to secure alternate SODC placements in lieu of community placements. (Compl. ¶¶ 70–74.) Certain individual Plaintiffs also allege that Defendants have informed them that, if they persist with their opposition to CILA placements, their wards will be evicted and, if other arrangements are not found by the guardians, Defendants will select housing for their wards regardless of consent. (Id. ¶¶ 25–27; see also id. ¶¶ 31–34.) Although Olmstead does not entitle Plaintiffs to any affirmative relief, it does not require—and
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in fact explicitly discourages—Defendants’ alleged conduct. As a result, Defendants cannot claim that their duty to comply with Olmstead is a rational basis for the alleged decision to force all of the class members into CILAs despite individual needs and guardian objections.
We thus deny the motion as to the equal protection claim. In addition, we will consider this claim when evaluating the merits of the preliminary injunction motion. IV. TITLE II AND REHABILITATION ACT CLAIMS
Counts I and II of the complaint assert discrimination claims under Title II of the ADA and § 504 of the Rehabilitation Act. (Compl. ¶¶ 63–78.) As we have previously indicated, these claims are construed identically. Radaszewski v. Maram, 383 F.3d 599, 607 (7th Cir. 2004); Washington v. Indiana High Sch. Ass’n, Inc., 181 F.3d 840, 846 (7th Cir. 1999) (noting that the two statutes are coextensive). To state a claim of discrimination under these statutes,9 Plaintiffs must allege that: (1) they are qualified individuals with disabilities; (2) they have been denied “the benefits of the services, programs, or activities of a public entity;” and (3) that denial or exclusion was “by reason of such disability.”10 42 U.S.C. § 12132; see also 29 U.S.C. § 794(a); Brad K. v. Bd. of Educ. of City of Chi., 787 F. Supp. 2d 734, 746–47 (N.D. Ill. 2011); Phipps v. Sheriff of Cook Cty., 681 F. Supp. 2d 899, 913 (N.D. Ill. 2009).
Defendants contend that Plaintiffs have failed to state a discrimination claim, in part because they failed to identify a theory of relief. In their argument, Defendants state that we
9 The parties do not dispute that Defendants are a public entity, as necessary for an ADA claim, or that they received federal funding assistance, as necessary for a Rehabilitation Act claim.
10 The third element—the “by reason of disability” language—ultimately requires a showing of “but for” causation. Wisconsin Comm’ Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 752 (7th Cir. 2006); Washington, 181 F.3d at 849.
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previously dismissed Plaintiffs’ discrimination claims and instructed them to limit their claims to three theories. (Mem. at 6–7.) Defendants blatantly mischaracterize our June 20, 2013 opinion, which did not dismiss Plaintiffs’ ADA or Rehabilitation Act claims. (See 6/20/13 Op. at 9–10.) In that opinion we explained that, although Plaintiffs could not advance an Olmstead claim, their discrimination claims could rest on any one or more of three evidentiary approaches. (Id.) As discussed, “discrimination under both acts may be established by evidence that (1) the defendant intentionally discriminated on the basis of disability, (2) the defendant refused to provide a reasonable accommodation, or (3) the defendant’s rule disproportionally impacts disabled people.” Washington, 181 F.3d at 847; Wisconsin Comm’ Servs., 465 F.3d at 753; see Culvahouse v. City of LaPorte, 679 F. Supp. 2d 931, 937 (N.D. Ind. 2009). We thus instructed the parties to tailor their presentations to these available theories for purposes of the preliminary injunction hearing, which will require us to assess Plaintiffs’ likelihood of success on the merits.11 Contrary to Defendants’ position, however, these three evidentiary approaches are not pleading requirements, but methods of proof. Plaintiffs could have explicitly detailed their evidentiary theories in their complaint, but Rule 8 does not require them to do so. Fed. R. Civ. P.8(a) (requiring plaintiff to include a “short and plain statement of the claim” showing a right to relief); see also Carothers v. Office of the Transitional Adm’r, No. 12 C 6620, 2013 WL 3388876, at *1 (N.D. Ill. July 8, 2013) (noting that a “plaintiff need not plead legal theories” because “it is the facts that count”).
We turn then to evaluate the sufficiency of Plaintiffs’ allegations. The complaint includes allegations about the severity of the developmental disabilities suffered by the putative
11 According to their brief filed August 7, 2013, (Dkt. No. 159), Plaintiffs will be pursuing all three evidentiary approaches.
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class members. (See, e.g., Compl. ¶¶ 25–27, 68, 70–71 & Ex. B.) Plaintiffs allege that many of the class members are non-verbal, immobile, and lack the cognitive skills to live semiindependently. (Id. ¶¶ 68, 71.) Plaintiffs describe how they and their wards are being deprived of any meaningful choice for future placements with adequate safety-net services when Murray closes. (Id. ¶¶ 65–66, 72–74.) In a nutshell, Plaintiffs allege that Defendants are eliminating current SODC services due to the budget cut but, in lieu thereof, are offering only CILA placement for SODC residents who must relocate, who cannot secure treatment at a private ICFDD,12 and who will not receive the same level of services at CILAs that they currently receive. (Id. ¶¶ 66–74.) To effectuate these forced transfers out of SODCs, Defendants have implemented an assessment process that predetermines the appropriateness of community settings for SODC residents and overrides guardian wishes. (Id. ¶¶ 60–62, 66–74.) Plaintiffs further complain that, underlying this situation, Defendants have intentionally targeted developmentally disabled class members for greater cuts in funding and in effective, necessary services than those cuts imposed on individuals with other types of disabilities. (Id. ¶¶ 58, 65; see also id. ¶¶ 86–89.) The complaint also alleges in detail how CILAs are woefully inadequate for class members’ needs, threatening their health and safety. (Id. ¶¶ 3, 6–7, 25–27, 31–34, 57–61.)
We conclude that these allegations plausibly state discrimination claims under Title II and the Rehabilitation Act. The complaint alleges that the class members at issue here are disabled and that Defendants’ conduct has denied them (or if not enjoined will deny them) the level of services they have received at SODCs. Plaintiffs claim that these decisions to close
12 Plaintiffs relatedly allege that Defendants are not helping them obtain ICF-DD placements. (Compl. ¶ 74.)
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Murray and Jacksonville and to force the class members to relocate to CILAs are discriminatory because other disabled individuals who receive services from or through the State have not been subjected to such severe cuts in funding or benefits. These allegations “give enough details about the subject-matter of the case to present a story that holds together.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010); McCauley v. City of Chi., 671 F.3d 611, 616–17 (7th Cir. 2011); Bissessur v. Ind. Univ. Bd. of Trustees, 581 F.3d 599, 602–03 (7th Cir. 2009); see Mehta v. Beaconridge Improvement Ass’n, 432 F. App’x 614, 616 (7th Cir. 2011) (“At the pleading stage, the test is not whether the plaintiff will ultimately prevail, but rather whether the pleading is sufficient to cross this minimal threshold.”).
Before moving on, we briefly address Defendants’ challenge to Plaintiffs’ allegations of intra-class discrimination. (Mem. at 7, 12, 14; Reply at 6–7.) Defendants contend that Plaintiffs cannot make out such a claim because the class alleged in the complaint includes all SODC residents. Plaintiffs thus have not alleged that they are being treated differently than another group on the basis of their disability, as all members of the class have the same disabilities. This argument fails, however, because Plaintiffs’ definition of the putative class is wholly unrelated to the intra-class discrimination claim. Plaintiffs’ intra-class claim seeks to compare Defendants’ treatment of the class members to Defendants’ treatment of individuals with other types or levels of disabilities. (Compl. ¶ 65.)
The Seventh Circuit recently confirmed that discrimination claims are cognizable under Title II even when comparing members of the same protected class, as alleged here. Amundson ex rel. Amundson v. Wisconsin Dep’t of Health Servs., 721 F.3d 871, 874–75 (7th Cir. 2013). The plaintiffs in Amundson—a group of developmentally disabled individuals—argued that
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Wisconsin’s cut to their subsidies would require them to move from their group homes to institutions. Although the Olmstead argument was not ripe, the court in Amundson entertained plaintiffs’ contention that the state was treating them worse than other types of disabled people because of the steep funding cut. Id. The Seventh Circuit explained that “[i]f Wisconsin buys the best available care for persons with visual impairments, but pays only for mediocre care for the developmentally disabled, then plaintiffs have a theory of discrimination even though all of them remain in group homes.” Id. at 874; see also Nelson v. Milwaukee Cty., No. 04 C 193, 2006 WL 290510, at *5 (E.D. Wis. Feb. 7, 2006) (“[T]o the extent that plaintiffs allege that defendants are treating them worse than persons with less severe disabilities, they may proceed as such claims allege differential treatment by reason of disability.”). Although Plaintiffs have yet to identify another subset of disabled individuals for comparison purposes, we cannot rule out the possibility that they can and will do so as described in Amundson.13 At this stage, “we give the plaintiff the benefit of the imagination, so long as the hypotheses are consistent with the complaint.” Bissessur v. Ind. Univ. Bd. of Trustees, 581 F.3d 599, 602–03 (7th Cir. 2009) (internal quotation omitted); Mehta, 432 F. App’x at 616. We conclude that Plaintiffs are “entitled to take the next step in this litigation” and deny the motion as to Counts I and II. Swanson, 614 F.3d at 407; Mehta, 432 F. App’x at 616 (“We ask whether the story could have happened, not whether it did.”). V. MEDICAID ACT CLAIM
13 In rejecting the discrimination claim asserted in Amundson, the Seventh Circuit pointed out that, despite the significant cut in the subsidy, plaintiffs did “not contend that they are now treated worse than some other set of disabled persons.” 721 F.3d at 875. To prove this particular theory under Amundson, Plaintiffs must establish facts about a comparison group or “any standard by which ‘worse treatment’ could be identified.” Id. at 874–75.
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Finally, we consider a threshold legal question essential to Plaintiffs’ Medicaid claim, alleged in Count V. Under the Medicaid “HCBS waiver program,” Congress authorizes funding for “states to give individuals who would otherwise be eligible to receive Medicaid benefits in a more traditional, long-term institution the option of receiving care in their home or in community-based residences.” Ball v. Rodgers, 492 F.3d 1094, 1098 (9th Cir. 2007). To qualify for the waiver program, states must provide “certain ‘assurances’ to the Secretary of Health and Human Services.” Id. (citing §§ 1396n(c)(2), (d)(2)). Section 1396n(c)(2)©, known as the free choice provision, requires one such assurance:
[S]uch individuals who are determined to be likely to require the level of care provided in a hospital, nursing facility, or intermediate care facility for the mentally retarded are informed of the feasible alternatives, if available under the waiver, at the choice of such individuals, to the provision of inpatient hospital services, nursing facility services, or services in an intermediate care facility for the mentally retarded. 42 U.S.C. § 1396n(c)(2)©. Plaintiffs allege that the class members qualify for and are currently receiving services covered by this provision. (Compl. ¶¶ 1, 59–62, 98.) As such, where options for treatment are available in Illinois under the HCBS waiver program, Plaintiffs and their wards are entitled to be “informed of the feasible alternatives” and to choose the type of facility where they receive services. 42 U.S.C. § 1396n(c)(2)©. As the Seventh Circuit has stated, this subsection does not mandate that Defendants offer a particular option or operate a particular facility but “just requires the provision of information about options that are available.” Bertrand ex rel. Bertrand v. Maram, 495 F.3d 452, 459 (7th Cir. 2007). Defendants contend, however, that Count V must be dismissed because Plaintiffs have no private right of action to sue for any alleged violation of § 1396n(c)(2)©. The parties agree that the Medicaid Act itself does not authorize individual actions under § 1396n(c)(2)©. (Resp. at
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15; Reply at 11.) They vigorously dispute, however, whether 42 U.S.C. § 1983 arms Plaintiffs with an implied enforcement mechanism. Defendants argue that § 1396n(c)(2)© is not redressable via § 1983 because Congress did not intend to create a personal federal right. (Mem. at 16–19; Reply at 11–13.)
Both parties recognize that two Supreme Court decisions guide the analysis of this question: Gonzaga University v. Doe, 536 U.S. 273, 122 S. Ct. 2268 (2002) and Blessing v. Freestone, 520 U.S. 329, 117 S. Ct. 1353 (1997). Blessing set out three factors to consider when evaluating “whether a particular statutory provision gives rise to a federal right.” 520 U.S. at 340, 117 S. Ct. at 1359. A plaintiff must show that: (1) “Congress . . . intended that the provision in question benefit the plaintiff;” (2) “the right assertedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence;” and (3) the statute “unambiguously impose[s] a binding obligation on the States.” Id. at 340–41, 117 S. Ct. at 1359 (internal quotation omitted). In Gonzaga University, the Supreme Court clarified the first element of the Blessing test, holding that “it is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced” under § 1983. 536 U.S. at 283, 112 S. Ct. at 2275.
Although there are older cases coming down on both sides of this question, the leading post-Gonzaga University authority holds that § 1396n(c)(2)© is enforceable via § 1983. In Ball v. Rodgers, the Ninth Circuit addressed this precise issue in detail. The opinion includes a careful, extensive analysis and application of the Blessing and Gonzaga University tests. 492 F.3d at 1103–17. The Ninth Circuit ultimately concluded that “Medicaid beneficiaries enjoy ‘unambiguously conferred’ individual rights under §§ 1396n(c)(2)© and (d)(2)© and that those rights can be properly enforced through a § 1983 cause of action.” Id. at 1117 (remanding to the
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district court for further consideration of the free choice claims and injunction terms). Although Defendants ask us to reject Ball, we see no reason to do so.14 To the contrary, and to avoid
gilding the lily, we hereby adopt the Ninth Circuit’s persuasive reasoning and well-supported
holding in Ball.
Having concluded that Plaintiffs have a private right of action under § 1983 for their § 1396n(c)(2)© claim, we evaluate the sufficiency of those allegations.15 Plaintiffs allege that
Defendants have not informed them of feasible alternatives that remain available in Illinois
under the waiver. For example, Plaintiffs allege that Defendants have told them “that they
cannot choose another SODC in lieu of transition to the community setting.” (Compl. ¶ 74.)
Defendants also have not been forthcoming with information or assistance about private ICF-DD
housing alternatives. (Id.) Plaintiffs allege that Defendants have deprived them of information
and of choice, despite § 1396n(c)(2)(C)’s mandate. (Id. ¶¶ 62, 74, 97–98.) Count V thus
adequately sets forth a claim for violations of Medicaid’s free choice provision.
VI. OUTSTANDING ISSUES
In preparation for the preliminary injunction hearing, and given our rulings today, we
14 There are few cases on this question, and no Seventh Circuit authority on point. To date, no other federal court to take up the matter has rejected the holding in Ball. See Dykes v. Dudek, No. 11 C 116, 2011 WL 3860022, at *3 (N.D. Fla. Aug. 30, 2011); Zatuchni v. Richman, No. 07 C 4600, 2008 WL 3408554, at *10–11 (E.D. Pa. Aug.12, 2008); see also Wood v. Tompkins, 33 F.3d 600, 612 (6th Cir. 1994) (finding a § 1983 private right of action under § 1396n(c)(2)(C), though prior to the Gonzaga University decision).
15 Defendants argue that Plaintiffs cannot sue for violations of state regulatory laws relating to Medicaid, as alleged in Count V. (Mem. at 18; Reply at 13; see Compl. ¶¶ 96–98.) Plaintiffs did not respond to this argument. In addition, Plaintiffs have previously stated that the lawsuit involves only vindication of federal rights. (Reply ISO Prel. Inj. Mot. (Dkt. No. 43) at 14.) Accordingly, we find that Plaintiffs have abandoned this claim as it concerns alleged violations of state law.
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order the parties to address several issues by written submission to be filed no later than November 15, 2013. First, the parties shall address whether the upcoming preliminary injunction should also constitute a hearing for permanent injunctive relief. Second, the parties shall inform us of any specific objections to our consideration of the equal protection claim at the hearing. Third, the parties shall submit proposed language for the terms of a preliminary injunction, should Plaintiffs prevail at the hearing on the Medicaid Act claim.
CONCLUSION For the reasons set forth above, Defendants’ motion (Dkt. No. 162) is granted in part and denied in part. We dismiss Counts IV and V as to Defendant DHS, and we dismiss all claims against Governor Quinn. Count III is dismissed entirely, and Count V is dismissed to the extent it alleged violations of state regulatory laws relating to Medicaid. The motion is denied in all other respects. The parties shall file the information requested above no later than November 15, 2013. We also advise the parties that we will allow each side thirty minutes for summation at the conclusion of the hearing. It is so ordered.

Dated: October 8, 2013

________________________________ Honorable Marvin E. Aspen U.S. District Court Judge

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 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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 Judge Marvin E. Aspen

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.

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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
1 We assume familiarity with the extensive procedural background of this case. -2-

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
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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
2 Plaintiffs have not moved for class certification. -4-

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.)
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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. (Casey) at 19; see also 1/8/14 10:30 a.m. Hr’g Tr. (Shaver) at 51, 58–59, 62.) Casey testified, based on both his experience and the professional research, that overall “people with intellectual disabilities do better in community programs.” (1/8/14 2 p.m. Hr’g Tr. (Casey) at 12; id. at 84–85; Casey Decl. ¶¶ 11–13.) Second, community programs, on the whole, are less expensive than institutional placements. (Casey Decl. ¶¶ 14–17; 1/8/14 2 p.m. Hr’g Tr. (Casey) at 26–29 (“Most of the
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research and my personal experience indicates that community programs are less expensive, frankly, than institutional programs.”).) Even if certain community placements exceed the average cost of institutional care—for example, where a more complicated plan is required to support an individual’s needs—funding should be available in excess of the institutional rate because “the vast majority of community placements fall well under this average.” (Casey Decl. ¶ 15; see also 1/8/14 2 p.m. Hr’g Tr. (Casey) at 27–29.) On the other hand, Plaintiff’s expert, Greg Shaver, testified that it would not be cost-effective to develop community placements for some disabled individuals who are medically frail or pose particular behavioral challenges, including some Murray residents. (1/8/14 10:30 a.m. Hr’g Tr. (Shaver) at 37–41.) Although Casey could not guarantee that the State of Illinois would save money under the Initiative, he testified that he expects savings and that they “will use that money to serve people off of the community waiting list.” (1/8/14 2 p.m. Hr’g Tr. (Casey) at 27 (further stating that “[i[f we don’t save a dime, we won’t save a dime”); id. at 84.)
Third, the trend away from institutional treatment of the developmentally disabled stems in part from the United States Supreme Court’s decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 587, 597, 601–07, 119 S. Ct. 2276, 2181, 2185, 2187–90 (1999). In Olmstead, the Supreme Court held that Title II of the Americans with Disabilities Act (“ADA”) requires states to provide community-based treatment for disabled persons, as opposed to institutionalization, under specified circumstances. In so holding, the Supreme Court explained that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” Id. at 597, 119 S. Ct. at 2187. Consistent with these principles, states including Illinois have taken steps to reduce the number of institutionalized disabled individuals by allowing them to live in a less restrictive
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community setting. (Casey Decl. ¶¶ 7, 13; 1/8/14 2 p.m. Hr’g Tr. (Casey) at 11–12 (noting a study that indicated a 90% reduction since the 1960s in the number of people served in institutional programs nationwide); see also 1/8/14 10:30 a.m. Hr’g Tr. (Shaver) at 58–59 (discussing the decreased census at Murray over the last three decades, as well as his overall support for the closure of SODCs other than Murray).) For the above reasons, the State seeks to implement a more progressive approach to the treatment of the developmentally disabled and serve more people with such disabilities in integrated, community settings. (Casey Decl. ¶¶ 9–10.)
While Governor Quinn and DHS seek to reduce the State’s reliance on institutional settings—and thus outspokenly prefer to place individuals in small community homes—Casey and others concede that “there may be some persons who are difficult to place in the community and can be more efficiently served by an ICF/DD level of care rather than a CILA, or for whom a guardian may prefer an ICF/DD level of care.” (Casey Decl. ¶ 13; see id. ¶ 12; see also 1/8/14 2 p.m. Hr’g Tr. (Casey) at 43 (admitting that not all people do better in the community); 1/9/14 9:30 a.m. Hr’g Tr. (Mayer) at 53 (“I believe that there will be people who will not be successful in the community.”); 1/9/14 2:05 p.m. Hr’g Tr. (Dufresne) at 4–5 (testifying that he has concluded that at least one SODC resident he evaluated should not be placed in the community).)
C. The Closures of Jacksonville and Murray The first SODC slated to close pursuant to the Initiative was Jacksonville, which closed on December 3, 2012. (Stip. ¶ 16.) Of the roughly 180 residents, 108 moved to community placements, almost all CILAs. (Casey Decl. ¶ 32.) Eighteen residents moved to private ICF/DDs, 53 transferred to other SODCs, and one was placed in a mental health center. (Id.)
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There is no evidence that Defendants transferred any Jacksonville residents to a community placement without guardian consent.3 (See, e.g., id.; 1/9/14 2:05 p.m. Hr’g Tr. (Dufresne) at 29; 1/9/14 9:30 a.m. Hr’g Tr. (Doyle) at 27–28, 34.)
Murray was scheduled to close on October 31, 2013, though this litigation has delayed that process. (Compl. ¶ 52; see also 1/9/14 9:30 a.m. Hr’g Tr. (Doyle) at 13.) As both parties have acknowledged, Plaintiffs are not entitled to care in, and cannot force the State to permanently maintain, any particular facility. Accordingly, so long as the State decisionmakers intend to close Murray, it will close.
Some residents have already transitioned out of Murray in preparation for its planned closing. For example, approximately four individuals have moved into a private ICF/DD from Murray. (1/8/14 10:30 a.m. Hr’g Tr. (Shaver) at 36.) Some other residents who have left Murray are wards of the Office of the Special Guardian (“OSG”). Two of these individuals will be moving to other SODCs. (1/8/14 2 p.m. Hr’g Tr. (Starr) at 118–19.) The OSG initially approved another twenty-four Murray residents to move to CILAs, but that decision has been challenged in state court, which has appointed a temporary guardian ad litem (“GAL”), Stewart Freeman, for these individuals.4 (Decl. of Stewart Freeman ¶¶ 5–9 (Dkt. No. 241-4); 1/7/14 Hr’g Tr. (Freeman) at 112–15.) Although that dispute remains pending, there is no evidence to suggest
3 When Jacksonville closed, approximately thirteen people were moved to other SODCs without guardian input. (1/8/14 2 p.m. Hr’g Tr. (Casey) at 65–66.) In those instances, the families and guardians failed to respond to DHS’s requests for direction. (Id.)
4 In light of questions raised about the OSG’s conduct, the state court authorized Freeman to decide whether his clients should be transferred permanently to homes and/or institutions other than Murray. (Freeman Decl. ¶ 5; see also 12/19/13 Op. (Dkt. No. 346) (providing more background on Freeman’s role and resolving judicial notice motion).)
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that Defendants removed the thirteen OSG wards currently living in CILAs from Murray without the OSG’s initial consent. (1/7/14 Hr’g Tr. (Henson) at 48–49 (acknowledging that the OSG signed documentation to allow the transfers); see also 1/7/14 Hr’g Tr. (Freeman) at 135–38.)
Casey testified that he is not aware of any plans for DHS to close all of the State’s SODCs. Governor Quinn announced an intention to close up to four SODCs, to reduce the census by 600 residents, but Casey has no knowledge of intended closures beyond Murray and Jacksonville. (Casey Decl. ¶ 27.) III. The ACCT Process
A. Overview of the Process DHS has begun planning for resident transfers given Murray’s slated closure. In light of the goals of the Initiative, DHS advises and prefers that all guardians consider a CILA for their wards’ next placement. (1/8/14 2 p.m. Hr’g Tr. (Casey) at 23–25; Casey Decl. ¶¶ 23–25.) To that end, DHS contracted with CR Associates, who works with CR Alliance, to assess individuals for placement in the community.5 (10/2/13 Am. Decl. of Derrick Dufresne ¶¶ 1, 7 (Dkt. No. 275-1); 9/23/13 Decl. of Dr. Michael Mayer ¶¶ 1 (Dkt. No. 245-2).) According to Casey, DHS retained CRA because Murray staff members would not have enough time to perform their regular duties as well as prepare transition plans for all of Murray’s residents. (Casey Decl. ¶ 18; see, e.g., 1/7/14 Hr’g Tr. (Henson) at 52–53 (agreeing that the Murray interdisciplinary (“ID”) team, including two social workers, would otherwise be called on to
5 As we understand it, CR Alliance completes the assessments of each resident for potential community placement, while CR Associates coordinates residential placements with DHS and the PAS agent after assessments have concluded. (Mayer Decl. ¶¶ 1, 12, 19; Dufresne Decl. ¶¶ 1, 7–8.) For the sake of simplicity, however, we will refer to these entities collectively as “CRA.”
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assist with transition decisions for each resident); Henson Decl. ¶ 2.) The State pays CRA approximately $180,000 per month under the contract, which began in 2012. (1/9/14 9:30 a.m. Hr’g Tr. (Doyle) at 18; see Casey Decl. ¶ 18 (stating the DHS has a $2 million contract with CR Associates).)
DHS engages in a type of “person-centered planning,” which they call the “ACCT process,” to evaluate each resident for future placements. (Casey Decl. ¶¶ 18–19; Dufresne Decl. ¶ 7; Mayer Decl. ¶ 9.) DHS retained CRA, and employed the ACCT process, to implement the closure of Jacksonville. (Dufresne Decl. ¶ 9; Mayer Decl. ¶ 8.) DHS is again utilizing the ACCT process, with CRA’s assistance, for the Murray closure. (Casey Decl. ¶ 19.) Personcentered planning generally involves a highly individualized assessment of each resident. (1/7/14 Hr’g Tr. (Henson) at 51, 58; 1/8/14 10:30 a.m. Hr’g Tr. (Shaver) at 52, 58, 74–75; see Casey Decl. ¶ 19.) Under the person-centered approach, the methodology is to develop a community program around the disabled individual, such that the overall program, including housing and services, is tailored to his or her particular needs. (1/8/14 2 p.m. Hr’g Tr. (Casey) at 15, 19–20; 1/9/14 9:30 a.m. Hr’g Tr. (Mayer) at 51, 53.)
Dr. Mayer provided detailed testimony in his declaration about the purpose and mechanics of the ACCT process. (Mayer Decl. ¶¶ 9–19.) Plaintiffs do not challenge Dr. Mayer’s description of the ACCT process itself, and we thus adopt his testimony about the steps involved in the ACCT process. (Id. ¶¶ 11–19.) By way of brief overview, the assessment portion of the ACCT process typically includes a records review, a meeting with the resident and guardians to generate a Person-Centered Plan (“PCP”), any potential further clinical screening, and the creation of a planning and support budget report, which covers fifteen domains (such as
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medical, dental, nursing, mobility, and behavioral support) and recommends specific services and supports. (Id. ¶¶ 15–18; see also Casey Decl. ¶ 19; see, e.g., Dufresne Decl. ¶¶ 14–17 (describing the placement portion of the ACCT process) & Ex. 4 (flow chart of ACCT process).) Seven or eight credentialed professionals participate at various stages of each individual’s assessment in the ACCT process. (Mayer Decl. ¶ 14; see id. ¶ 13 (identifying the assessment professionals and their qualifications); see also Casey Decl. ¶ 19; 1/7/14 Hr’g Tr. (Freeman) at 140–41 (acknowledging that the ACCT evaluations are completed by credentialed professionals); 1/9/14 9:30 a.m. Hr’g Tr. (Mayer) at 72–73.) Where a community provider is selected, the ACCT professionals attend the pre-transition meeting to ensure that the provider and PAS agent understand the individual’s needs. (Mayer Decl. ¶ 19.)
B. Plaintiffs’ Substantive Concerns about the ACCT Process 1. Philosophical Underpinnings
Although Plaintiffs do not specifically argue that the steps of the ACCT process are inherently inadequate,6 or that the CRA professionals are not adequately credentialed, they contend that the underlying premise of the process is flawed, infecting the entire approach. (See Post-Hr’g Mem. at 9–10; Post-Hr’g Reply at 4, 6–7.) As Defendants have repeatedly acknowledged, the ACCT process “is based on the belief that all persons with developmental
6 Of course, Plaintiffs do not approve of the ACCT process, and we do not suggest otherwise. We summarize Plaintiffs’ specific concerns about the ACCT process below, but, on the whole, they do not dispute Mayer’s outline of the clinical process or challenge its components. (Post-Hr’g Reply at 9, directing to Pls.’ Proposed Findings at 3–16 (raising concerns about the purpose and goals of the ACCT process, the State’s lack of savings, the reliance of PCPs on the information already contained in the individual service plans (“ISPs”) prepared by Murray staff, the general difficulty in ascertaining the wishes of a noncommunicative person, and the requirement that guardians participate in the ACCT process).)
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disabilities can be served in a community setting with the appropriate supports and services.” (Mayer Decl. ¶ 10; Casey Decl. ¶¶ 13, 20; Dufresne Decl. ¶ 8; see 1/8/14 2 p.m. Hr’g Tr. (Casey) at 16–20; 1/9/14 9:30 a.m. Hr’g Tr. (Mayer) at 49–53; 1/9/14 2:05 p.m. Hr’g Tr. (Dufresne) at 4.) Defendants relatedly assert that “[t]here are virtually no services available in an SODC that are not available in a community setting,” such that the setting can be designed to suit the resident in accordance with his or her individual plan. (Casey Decl. ¶ 20.) Plaintiffs decry this “reverseengineering” mentality, insisting that the ACCT process thus predetermines every resident’s assignment to a CILA upon Murray’s closure, regardless of their needs. (1/7/14 Hr’g Tr. (Kelly) at 222, 224–25, 241–42, 246; see also 1/7/14 Hr’g Tr. (Freeman) at 148, 151, 170–71; Burke 30(b)(6) Decl. ¶¶ 7–8.)
In support of their position, Plaintiffs rely on the testimony of Dr. Karen Kelly, who is a registered nurse, a faculty member at the School of Nursing at Southern Illinois University at Roosevelt, and a Murray guardian for her son, Eric. (1/7/14 Hr’g Tr. (Kelly) at 202–14 (describing her professional experiences as well as her son’s needs).) Dr. Kelly testified, based on her decades of nursing experience, that “the big flaw in [the ACCT process] is that it has a predetermined outcome.” (Id. at 224; see also id. at 225.) And based on her personal experiences caring for Eric, Dr. Kelly testified that he requires a higher level of supervision than could be provided in a CILA. (Id. at 226–29.) Dr. Kelly explained that she does not have faith in the ACCT process and will not allow her son to go through it. (Id. at 221–22, 241–42, 246, 250.) She emphasized that while community arrangements may suit some disabled or mentally ill individuals, “some people are never going to fit in the community.” (Id. at 249 (stressing that “one size does not fit all”).)
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Plaintiffs further point out that the PAS agent for Murray residents, Ann Yaunches, has authorized CILA placement for every Murray resident who has completed the ACCT process, including more than twenty OSG wards. (Yaunches Dep. at 18–19, 28–29, 34, 37 (Dkt. No. 3731); see also 1/7/14 Hr’g Tr. (Freeman) at 171.) Moreover, she has concluded that none of those Murray residents are eligible for services in an SODC placement because they are not considered a danger to themselves or others.7 (1/16/14 Decl. of Ann Yaunches ¶ 5 (Dkt. No. 661-1); Yaunches Dep. at 25, 28–29, 46.) If the PAS agent completes the necessary form indicating that an individual is not eligible for an SODC, the guardian cannot choose that option. (1/8/14 2 p.m. Hr’g Tr. (Casey) at 50–56.)
Nonetheless, according to Defendants, the PAS agent would not typically participate in a resident’s transfer from one SODC to another SODC. (Yaunches Decl. ¶ 5 (“An SODC transfer occurs outside the PAS process.”); see also id. ¶ 9; 1/7/14 Hr’g Tr. (Henson) at 50.) Both Casey and Yaunches stated that families do not need to go through the PAS agent for an inter-SODC transfer. (1/8/14 2 p.m. Hr’g Tr. (Casey) at 87–88; Yaunches Decl. ¶ 9 (explaining that the PAS agent is not required to be part of the process if a resident goes through the ACCT process and wants an ICF/DD placement, although the agent remains available to help locate ICF/DD options).) Additionally, although all SODC placements are intended to be temporary, the Division has relaxed its position for Murray residents and will allow residents to transfer to other SODCs if requested by guardians. (1/8/14 2 p.m. Hr’g Tr. (Casey) at 88–89; Yaunches Decl. ¶ 5; see, e.g., 1/7/14 Hr’g Tr. (Kelly) at 250 (testifying that she could work with Murray staff now, or
7 Yaunches testified in her deposition that an individual cannot be placed in the community, via the HCBS Waiver Program, if they require 24-hour nursing care, or if they are considered a danger to themselves or others. (Yaunches Dep. at 46–48.)
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wait, to make decisions about Eric’s next placement, and that she has chosen to wait to see what happens with the lawsuit).) As a result, although Yaunches has not approved further SODC placement for Murray residents who have completed the ACCT process, this outcome is neither surprising in light of the process’ goals, nor reflective of a lack of choice for guardians, who remain free to seek separate assistance to pursue an SODC transfer, as discussed in more detail below.
2. Quality of the Process Beyond their challenges to the philosophy underlying the ACCT process, Plaintiffs also raise two particular concerns about its value. First, Plaintiffs contend that the ACCT process excludes Murray staff—specifically, a resident’s ID team—from actively participating in assessments and transition planning as they normally would in a discharge situation.8 Instead, CRA handles all of the planning and coordinating functions, sometimes without informing ID team members of pre-transition meetings or allowing their meaningful input. (Henson Dec. ¶¶ 6–10, 22, 26; 1/7/14 Hr’g Tr. (Henson) at 50–51; 9/22/13 Declaration of Alicia Creed ¶¶ 3–4 (Dkt. No. 241–11); 1/7/14 Hr’g Tr. (Creed) at 173–75, 176, 184–85; 1/7/14 Hr’g Tr. (Howell) at 194–95; 9/21/13 Decl. of Tracy Kiselweksi ¶¶ 2–7 (Dkt. No. 241-12); 9/23/13 Decl. of Julie Hester ¶¶ 2–11 (Dkt. No. 241-13); 9/23/13 Decl. of Adam Gibson ¶¶ 2–6, 9, 12 (Dkt. No. 262-
8 Plaintiffs relatedly suggest that the ACCT process is inadequate because it does not follow the procedures outlined in Standard Operating Policy and Procedure 181 (“SOPP 181”), which is Murray’s policy for facilitating community placement discharges. (See Henson Decl. ¶ 10 & Ex. C (SOPP 181).) Based on the record before us, it appears that SOPP 181 does not apply to transfers arranged through the ACCT process stemming from Murray’s closure. The policy applies for community discharges only when requested by guardians, outside the context of a facility closure, and therefore does not govern the Murray closure. (Id., Ex. C; 1/7/14 Hr’g Tr. (Henson) at 51–52; 1/8/14 2 p.m. Hr’g Tr. (Starr) at 113.)
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1).) Plaintiffs feel that the ACCT process is thus deficient because Murray staff, and not CRA, has the best, most thorough, most accurate knowledge of residents based on their daily interactions. (1/7/14 Hr’g Tr. (Henson) at 59; see 1/7/14 Hr’g Tr. (Winkeler) at 28; 1/7/14 Hr’g Tr. (Kelly) at 245–46.)
As previously mentioned, Defendants state that DHS hired CRA because Murray staff members would not have enough time to perform their regular duties as well as prepare transition plans for each resident. (Casey Decl. ¶ 18.) In addition, Defendants assert that, at times, Murray staff have refused to participate in the ACCT process, even when invited. (1/9/14 9:30 a.m. Hr’g Tr. (Mayer) at 76–77 (describing how Murray staff have posed obstacles to the ACCT process, such as by turning their backs on CRA during meetings).) We need not delve into the details, but, for present purposes, we note that the record reveals several instances of disagreement and non-cooperation between Murray staff and CRA, often concerning notice about pre-transition meetings or access to patient records. (Id.; see, e.g., Creed Decl. ¶¶ 4–7; 1/8/14 2 p.m. Hr’g Tr. (Starr) at 119.)
Second, Plaintiffs claim that the PCP developed in the ACCT process is pointless and ineffective because it relies almost exclusively on the ISP materials already prepared on each resident by Murray staff. (1/7/14 Hr’g Tr. (Kelly) at 224 (“[T]he narrative potion that’s kind of an addendum to the [PCP] is just a cut and paste of the individual’s ISP.”) Freeman testified, for example, that he has read both documents for his clients but that he “didn’t learn one thing hardly from the [PCP prepared by CRA] that [he] couldn’t have gleaned from the ISP.” (1/7/14 Hr’g Tr. (Freeman) at 150 (further stating that he could write a PCP himself because the information in the PCP is nothing other than what the ISP contains).) Casey confirmed that the Division uses
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the ISPs, adding that “it would be foolish not do so.” (1/8/14 2 p.m. Hr’g Tr. (Casey) at 21
(stating that the ISP represents “good, valid information placed in the file by people who know
the individual reasonably well”).) Casey and others also testified about the other steps in the ACCT process, including the PCP meeting with residents9 and guardians and CRA’s
consideration of whether additional evaluations are necessary to get a more thorough picture of a
resident’s needs. (Id. at 21–22; 1/9/14 9:30 a.m. Hr’g Tr. (Mayer) at 57, 77; Mayer Decl.
¶¶ 11–19; see also 1/9/14 2:05 p.m. Hr’g Tr. (Dufresne) at 25–26 (discussing benefits of the
ACCT process, even for residents and guardians who elect not to pursue community living).)
C. Plaintiffs’ Opportunity to Opt Out of the ACCT Process In addition to their claims about the value of the process, Plaintiffs are also concerned
that they are being forced to participate in the ACCT process, with its predetermined CILA
outcome. It is undisputed that the Division wants each family to consider community placement.
(1/8/14 2 p.m. Hr’g Tr. (Casey) at 23–25; Casey Decl. ¶¶ 23–25.) Casey stated, for example, that
“[i]t is DHS’s plan that every resident at Murray should be assessed for a community placement,”
(Casey Decl. ¶ 23), and that he advises “any family . . . to look very carefully at that kind of
home, to participate in the process,” (1/8/14 2 p.m. Hr’g Tr. (Casey) at 23). (See also Defs.’
9 The hearing included testimony about the total inability of some residents to communicate during the PCP meetings and to express their preferences for their next placement. (1/9/14 9:30 a.m. Hr’g Tr. (Mayer) at 54–59, 64–66; 1/9/14 9:30 a.m. Hr’g Tr. (Holzhauer) at 86–87.) While this testimony highlights the limitations of both the residents and the ACCT process, we find it immaterial. Caring for these individuals, including assessing them for living arrangements, require caregivers and guardians to make inferences about their needs and desires on a daily basis. It is thus irrelevant that Murray staff and/or ACCT professionals must rely on the “best representations,” including any guardian participation, of resident wishes. (1/9/14 9:30 a.m. Hr’g Tr. (Mayer) at 66 (acknowledging that CRA must rely on input from the group for a best guess of what a noncommunicative resident may prefer).)
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Ex. 207 (email thread between Doyle and Holzhauer, in which Doyle states that the “emphasis in this ACCT process is on homes of 4 persons or fewer”).)
Plaintiffs presented circumstantial evidence at the hearing to support their claim that they are being forced into the ACCT process.10 Plaintiffs point out that DHS has not been open with them about the process or CRA’s involvement. Mark Doyle, the Transition of Care, Projects Manager for the State of Illinois, instructed Rick Starr, the acting director of Murray, “to keep CRA underneath the radar.” (1/8/14 2 p.m. Hr’g Tr. (Starr) at 96–97 (testifying further that it would have been “fair” to let the guardians know about CRA from the beginning).) Starr also admitted that, despite his role at Murray as the liaison with guardians for the ACCT process, he has never told any guardians that residents could be assessed for transition by Murray staff, rather than by CRA through the ACCT process. (Id. at 125–26.)
Although Starr has not notified guardians about the option to opt out of the ACCT process, Casey did so at an informational session with Murray guardians prior to the filing of the lawsuit. On September 9, 2012, at a meeting with the MPA, Casey stated:
There’s no, there’s no legal requirement, none, to involve yourself in the CRA process, and if you want to opt out of it, we will still help you through the [PAS] agency, through my staff, and through other staff we have, to, to get your, help you select an alternate place for someone to live. You do not have to go through the CRA process. There’s a direct answer to your question. (Defs.’ Ex. 102 (9/9/12 MPA Mtg. Tr.) at 64; see id. at 65 (reiterating, in response to a question from Winkeler, that “[y]ou do not have to go through the CRA process, that’s correct.”); see also Defs.’ Ex. 207 (email thread between Doyle and Holzhauer, in which Doyle expresses his belief
10 Whether this alleged coercion would be unlawful discrimination as argued here is a separate legal question, which ultimately we need not address.
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that the ACCT process has value for those who will reject a CILA option but does not suggest that the process is required of those families).) In a written exchange with a reporter in the Centralia area, the Communication Manager for DHS, Januari Smith, also stressed that DHS “will work with individuals/families that prefer to transition to other SODCs or private . . . [ICF/DDs]” on a case-by-case basis. (Defs.’ Ex. 109 (April 2013 email thread between Smith and Monica Seals, as forwarded by Seals11 to Winkeler).)
Despite Casey’s unequivocal 2012 statements to the MPA, it is undisputed that CRA—at DHS’s instruction—began reviewing Murray resident files over guardian objections in the summer of 2013. (Casey Decl. ¶ 25; 1/8/14 2 p.m. Hr’g Tr. (Casey) at 61–64; see also 1/7/14 Hr’g Tr. (Winkeler) at 42–44; 1/8/14 2 p.m. Hr’g Tr. (Starr) at 94–95; 1/9/14 9:30 a.m. Hr’g Tr. (Doyle) at 13–17.) The vast majority of Murray guardians inserted notes in their wards’ files refusing to allow CRA to assess their wards. (1/7/14 Hr’g Tr. (Winkeler) at 42–44 (testifying that roughly 195 guardians had notices added to resident files stating that they could not be reassessed under the ACCT process); see 1/7/14 Hr’g Tr. (Kelly) at 241); Defs.’ Ex. 114 (Winkeler forms, which seek to (1) prohibit CRA from approaching or interviewing her son, or reviewing his records; and (2) direct DHS that any assessments for transfer should be completed by SODC staff only).) Despite the guardians’ position, DHS ordered CRA to begin reviewing a small number of files. (1/8/14 2 p.m. Hr’g Tr. (Casey) at 63–65; see 1/9/14 2:05 p.m. Hr’g Tr. (Dufresne) at 24 (testifying that less than fifteen files were reviewed).) Indeed, by email dated March 27, 2013, Doyle stated that DHS was “fully prepared to move forward with evaluations
11 In addition to her position in the press, Seals also appears to be involved with MPA. (Defs.’ Ex. 105 (1/13/13 Winkeler email indicating that Seals is part of the MPA legal committee).)
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even without guardian consent if necessary.” (Pls.’ Ex. 17 (3/27/13 Doyle email to Jack Lavin and others) (emphasis omitted).)
In his testimony, Doyle attempted to draw a distinction between the full ACCT process—from which a guardian may withdraw—and a records review by CRA—which DHS felt compelled to perform regardless of guardian wishes. (1/9/14 9:30 a.m. Hr’g Tr. (Doyle) at 14–17; see id. at 16 (“Just because they opt out of the CRA process doesn’t mean they’re opting out of an assessment.”).) In any event, CRA admittedly reviewed files over guardian objection. CRA did not hold planning meetings with residents or guardians, or proceed with further steps in the ACCT process. (Id. at 33–34.) Doyle testified that the records reviews were necessary to see the status of the file, to plan how many clinical assessments might be needed, and to make sure they had sufficient resources to meet those needs. (Id.; see also 1/9/14 2:05 p.m. Hr’g Tr. (Dufresne) at 9–10.)
On the whole, the record demonstrates that DHS has not communicated consistently or effectively with Murray guardians about the ACCT process. While DHS likely faces pressure from all sides concerning the Murray closure, this unacceptable misstep, quite frankly, appears to be a root cause of this dispute.
Based on the record before us, however, we find that DHS does not require Murray guardians to participate in the ACCT process. Consistent with his 2012 statement to the MPA, for example, Casey testified at the hearing that families could opt out of the ACCT process, “start the process and stop it if they choose,” or see it through but reject the results. (1/8/14 2 p.m. Hr’g Tr. (Casey) at 24; see also id. at 25 (“If they don’t wish to use that process or if they wish to step out of the process at the beginning, in the middle or at the end, we will assist them in finding
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an alternate placement.”).) Dufresne similarly testified that the “ACCT process is an on-off switch,” (1/9/14 2:05 p.m. Hr’g Tr. (Dufresne) at 22), which can be declined or terminated at any time, (id. at 24–25). (Id. at 25 (noting by way of an example that “a previous witness,” presumably Holzhauer, began the process “and has now decided not to partake” further); see also 1/9/14 9:30 a.m. Hr’g Tr. (Doyle) at 17 (“They can opt out of the CRA process.”).) Additionally, there is no suggestion (or evidence) that Defendants forced Jacksonville guardians to participate in the ACCT process when that facility was slated for closures. (See 1/9/14 9:30 a.m. Hr’g Tr. (Doyle) at 34; 1/9/14 2:05 p.m. Hr’g Tr. (Dufresne) at 26–29.)
Overall, the evidence presented demonstrates that—despite Defendants’ insistence on access to files—families may opt out of the ACCT process and, as discussed further below, may reject CILA recommendations. (See, e.g., Defs.’ Ex. 101 (SODC Implementation Outline & Key Features Plan Elaboration at 9 (Dkt. No. 1-1) (explaining that CRA is not responsible for interSODCs transfers); Defs.’ Ex. 102 (9/9/12 MPA Mtg. Tr.) at 134 (discussing the regular process to be used for transition planning if a guardian opts out of the ACCT process).) In light of Plaintiffs’ confusion, DHS would be wise to clarify exactly how and to whom guardians should express their wishes to decline or cease participation in the ACCT process, the full ramifications of that decision, and how guardians should proceed for individualized assessment and placement outside the ACCT process. IV. PLAINTIFFS’ CONCERNS ABOUT GUARDIAN CONSENT
Plaintiffs argue not only that Defendants are requiring them to engage in the ACCT process, but also that they are forcing them to accept CILA placements, with no other option, in violation of their rights and their wishes. It is undisputed that the ACCT process is designed to
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identify what supports and services are needed for a developmentally disabled individual to live in a CILA, so as to effectuate a transition to the community. Plaintiffs allege that DHS, in furtherance of the Initiative, has refused to offer alternatives to CILA placement and, thus, is depriving them of both services and choice.
A. Guardian Consent for Community Placements Plaintiffs testified that Defendants have refused to offer, or help locate, placements for Murray residents at other SODCs, private ICF/DDs, or at any type of facility other than CILAs. (Winkeler Decl. ¶ 16; Kelly Decl. ¶ 8–9; Decl. of Jeanine Williams ¶¶ 3, 9 (Dkt. No. 241-7); Holzhauer Decl. ¶ 5.) Winkeler, Holzhauer, and Kelly testified that in a January 15, 2013 meeting with Doyle, he stated that the only type of placements under consideration were two-tofour bed CILAs. (1/7/14 Hr’g Tr. (Winkeler) at 45–46; 1/7/14 Hr’g Tr. (Kelly) at 229–3l; 1/9/14 9:30 a.m. Hr’g Tr. (Holzhauer) at 79–80.) Winkeler and Kelly testified that Doyle specifically indicated at that meeting that SODCs other than Murray were not an option. (1/7/14 Hr’g Tr. (Winkeler) at 45; 1/7/14 Hr’g Tr. (Kelly) at 230 (stating further that no one from DHS has told her than another SODC is an option).) In a January 17, 2013 meeting with a CRA representative, Holzhauer was again told that two-to-four bed homes were the only option. (1/9/14 9:30 a.m. Hr’g Tr. (Holzhauer) at 80.) Plaintiffs thus contend that DHS is forcing them to accept CILA placements as the only choice, stripping them of their right to consent to such placements. On the whole, however, the facts in the record—including uncontroverted written evidence—do not support a finding that Defendants are impeding or would impede Plaintiffs’ right to consent to, or reject, community placement. For example:
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• Kelly reported, by email dated May 18, 2012, that Doyle told her that SODCs would be available if guardians desired them, because the State was not closing all SODCs. (Defs.’ Ex. 103 (5/18/12 Kelly email).)
• In her July 20, 2012 email intended for distribution to MPA members, Winkeler recounted a meeting with Dufresne, Doyle, Casey and others, wherein Casey “said that under federal law parents have the right to decide the final placement for their loved one.” (Defs.’ Ex. 106 (4/20/12 Winkeler email to Becherer).)
• In his September 9, 2012 comments at the MPA meeting, Casey stated that guardians “have a right to choice between an [ICF], either public or private, or a community program” as among willing and qualified providers. (Defs.’ Ex. 102 (9/9/12 MPA Mtg. Tr.) at 14; see also id. at 22 (DHS is “not going to force you into the four-bed group home.”). Casey further clarified that, if at the end of the ACCT process a guardian decides that SODC placement is necessary, DHS would “talk to you about that at the time, but yes, it’s an option.” (Id. at 85.)
• In a January 18, 2013 email to Winkeler, following their meeting, Doyle recognized Winkeler’s unwillingness to participate in the ACCT process or consider a CILA placement for her son. Doyle encouraged Winkeler to “contact the Murray social worker and begin sooner than later the process of seeking out a private ICF/DD.” (Defs.’ Ex. 100 (1/18/13 Doyle email to Winkeler).)
• Januari Smith’s email to Monica Seals, relayed to Winkeler, provides that “if there are circumstances in which alternatives to community placement need to be considered they will be addressed on a case by case basis.” (Defs.’ Ex. 109 (4/17/13 email thread).). Smith repeatedly stated in her communication to Seals that DHS “will work with individuals/families that prefer to transition to other SODCs or private . . . [ICF/DDs].” (Id.)
Relevant witness testimony also uniformly demonstrates that no Murray resident has been
or would be transferred into the community over guardian objection. For example:
• Kelly admitted that she has known, since before the lawsuit was filed, that no community provider would accept her son over her objections. (1/7/14 Hr’g Tr. (Kelly) at 247–48.) She further testified that, while she knows DHS cannot compel community placement, she fears that other less-informed parents could be intimidated by Defendants. (Id. at 248.)
• Henson, a Murray social worker, testified that a resident cannot leave for a community placement unless the guardian signs a document. (1/7/14 Hr’g Tr. (Henson) at 49.)
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• Freeman, the GAL for the OSG wards, confirmed that the guardian—whether public or private—must consent to a CILA placement. (1/7/14 Hr’g Tr. (Freeman) at 149.)
• Casey, Starr, and Doyle each stated that guardians must consent before any transfer, whether to a CILA or otherwise. (1/8/14 2 p.m. Hr’g Tr. (Casey) at 24 (“The guardian always retains the ultimate choice.”); id. at 22–24, 61, 65; 1/8/14 2 p.m. Hr’g Tr. (Starr) at 119; 1/9/14 9:30 a.m. Hr’g Tr. (Doyle) at 34; see also Casey Decl. ¶ 23.)
• Mayer and Dufresne similarly testified that guardians are free to ignore the recommendations of CRA personnel and that guardians make the final placement decision in every case. (1/9/14 9:30 a.m. Hr’g Tr. (Mayer) at 59–60; 1/9/14 2:05 p.m. Hr’g Tr. (Dufresne) at 26; see also Dufresne Decl. ¶ 10 (“[CRA] will never continue to recommend transition into a CILA in the absence of a guardian’s consent.”); Mayer Decl. ¶ 10.)
• To date, the transfers of Murray residents into CILAs have occurred only with guardian consent. (See 1/7/14 Hr’g Tr. (Henson) at 48–49; 1/7/14 Hr’g Tr. (Freeman) at 135–38; 1/7/14 Hr’g Tr. (Howell) at 191 (confirming her understanding that two Murray residents, T.K. and M.A., moved to their home with guardian consent); 9/21/13 Decl. of William Fields ¶ 5 (stating that he consented for J.F.’s transfer to a CILA).)
Moreover, there is no evidence that Defendants—the same actors, using the same
procedures—transferred Jacksonville residents into community homes against guardian wishes,
when that facility closed in 2012. (See, e.g., Casey Decl. ¶ 32 (noting that some Jacksonville
families chose SODCs or private ICF/DDs, while others refused to participate in the ACCT
process and their wards transferred to other SODCs).) In fact, the evidence shows that
Jacksonville residents transitioned to other SODCs and private ICF/DDs, as well as CILAs or
other community options. (Casey Decl. ¶ 32; see also 1/9/14 2:05 p.m. Hr’g Tr. (Dufresne) at
29; 1/9/14 9:30 a.m. Hr’g Tr. (Doyle) at 27–28, 34.) Even when DHS could not ascertain
guardian wishes—because they neglected to provide direction—DHS transferred Jacksonville
residents to other SODCs but did not elect unilaterally to place them in the community. (1/8/14
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2 p.m. Hr’g Tr. (Casey) at 65–66.) Consistent with this evidence, we cannot find that Defendants have forced, or likely will force, Murray residents into CILAs without guardian consent.12
B. Feasible Alternatives Yet we also assess Plaintiffs’ consent argument as a basic logistical concern. Indeed, Plaintiffs assert that a choice among nonexistent options is no choice at all. Plaintiffs point out that there may not be enough spots available at other SODCs to accommodate Murray residents in the event that, as can be reasonably expected, many guardians insist on an institutional placement. As of June 14, 2013, for example, the six SODCs slated to remain open had the capacity to take 100 additional residents, with some renovations and added staffing support at the Fox and Shapiro locations. (Pls.’ Ex. 18 (6/14/13 Greg Fenton email to Doyle with census and capacity numbers); 1/9/14 9:30 a.m. Hr’g Tr. (Doyle) at 21–23.) That June 2013 capacity could not accommodate all, or even half, of the roughly 225 Murray residents, if families reject the ACCT process and/or a community recommendation. Plaintiffs also offered evidence indicating that private ICF/DDs lack sufficient capacity to accept a significant number of Murray residents, or could decline to accept them. Shaver testified, for example, that although Bryan Manor could serve individuals with severe disabilities like many of the Murray residents, the ICF/DDs in Illinois generally could not handle more than handful of such individuals. (See 1/8/14 10:30 a.m. Hr’g Tr. (Shaver) at 15, 37.) Shaver stated that Bryan Manor is “full all the time,” with a waiting list. (Id. at 38.) Other witnesses described
12 We do not suggest that Plaintiffs lack credibility, specifically with respect to testimony about the January 15, 2013 meeting with Doyle. Even if Doyle misstated DHS’s position at that meeting, however, we credit the overwhelming weight of evidence showing that residents will not be placed in CILAs over guardian objections.
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how ICF/DDs can deny admission and can expel residents if they feel a placement is not working. (Winkeler Decl. ¶ 14 (learning that two facilities do not have capacity to take her son); Kelly Decl. ¶ 9 (stating that she “will not be able to secure the [DD] treatment Eric requires on my own”); Burke 30(b)(6) Decl. ¶¶ 9–11 (explaining that “private facilities do not have to accept residents, or may accept an individual and then expel him or her, as has been the experience of many guardians” and recounting that her son was expelled from at least two such facilities); Williams Decl. ¶¶ 9, 15 (stating that she has not been able to obtain ICF/DD treatment for her brother); see also Schoppet Decl. ¶ 3 (noting that her son was rejected by ICF/DDs when she applied in 2001). Under these circumstances, and as Casey conceded, SODCs represent “the safety net for the system.” (1/8/14 2 p.m. Hr’g Tr. (Casey) at 69.)
With respect to CILAs, the hearing included evidence that Defendants have had some difficulty developing community housing suitable for Murray residents, particularly in the Centralia area. As Shaver explained, most of the housing would need to be new construction, as a more cost-effective means of accommodating medical equipment, lifts, special tubs, oversized bathrooms, or other amenities necessary to ensure accessability. (1/8/14 10:30 a.m. Hr’g Tr. (Shaver) at 40–41.) A DHS document confirmed as much, noting that both lead time and rent decisions would be critical for developers to enter into contracts and begin their work, particularly when approximately 100 Murray residents would require fully-accessible homes for wheelchairs. (Pls.’ Ex. 19 (3/3/13 Issue Paper); see also Casey Decl. ¶ 37 (addressing fiscal concerns).) Due to negative reactions and pressure from the community, Defendants ceased
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development in Centralia and began looking for housing opportunities in other communities.13 (1/9/14 9:30 a.m. Hr’g Tr. (Doyle) at 28–33 (describing instances of harassment of staff, residents, and developers at homes in Centralia, the lack of support from the city council and public, and developers’ reluctance to open homes there); Pls.’ Ex. 21 (6/19/13 Doyle email to Jack Lavin re: City of Centralia Focus).) Plaintiffs contend that, under these facts, they lack legitimate housing options should Murray close, rendering the promise of consent meaningless.
Construing the facts on the whole, however, we are not persuaded. We do not find Plaintiffs’ interpretation of the facts convincing because it overlooks the deliberate pacing of the process as well as DHS’s efforts thus far to provide accommodations.
Although it is undisputed that additional housing options, institutional or otherwise, will be needed for the roughly 225 Murray residents upon closure, the record demonstrates that it is neither necessary nor feasible for those options to be physically available right now. While Plaintiffs’ position raises valid questions about capacity and timing, Defendants cannot yet be expected to have concrete answers for each resident—particularly when Plaintiffs generally have refused to cooperate to help secure housing options of any kind. (1/7/14 Hr’g Tr. (Kelly) at 250–51 (testifying that the MPA has agreed, as a group, not to work yet with Murray staff to coordinate future placements, outside the ACCT process, because they prefer to wait and see what happens with this litigation); Defs.’ Ex. 125 (2/25/13 Winkeler email intended for
13 Plaintiffs themselves have discouraged the development of group housing in Centralia. Shaver testified that Winkeler instructed him to “hold off” on developing larger homes, as he had planned and had offered to do once he concluded the closure would likely proceed. (1/8/14 10:30 a.m. Hr’g Tr. (Shaver) at 66–70.)
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distribution to MPA members14).) As Defendants have described it, the transition process requires them to work with Plaintiffs—preferably through the ACCT process—to identify what a Murray resident needs from their next home and only then develop and/or identify specific choices from providers, whether public or private. (See Dufresne Decl. ¶¶ 15–16 & Ex. 4. (flowchart of ACCT process); 1/9/14 9:30 a.m. Hr’g Tr. (Mayer) at 67–70 (discussing how the provider is involved in the transition planning process to develop a suitable home); see also 1/8/14 2 p.m. Hr’g Tr. (Casey) at 14–15 (describing the person centered planning approach, as the opposite of a “slot mentality”)); Defs.’ Ex. 102 (9/9/12 MPA Mtg. Tr.) at 18–19. Thus, by design, the moment for guardian choice comes later.
Nonetheless, for guardians prepared to elect an institutional placement, DHS has expressed its willingness to allow and effectuate those transitions. As mentioned earlier, DHS has repeatedly stated that SODCs will be an option, which can be discussed with guardians on a case-by-case basis. (See, e.g., 1/8/14 2 p.m. Hr’g Tr. (Casey) at 24, 55, 59, 88–89; 1/9/14 9:30 a.m. Hr’g Tr. (Doyle) at 34.) Murray and Jacksonville residents have transferred to other SODCs by choice. (1/8/14 2 p.m. Hr’g Tr. (Casey) at 88–89; 1/9/14 9:30 a.m. Hr’g Tr. (Doyle) at 26–27, 34; Casey Decl. ¶ 32.) Casey admitted that it would be “counterproductive” if the
14 In her email, for example, Winkeler advises the MPA membership that: If the worst happens and the injunction does not occur then we will have PLENTY of time to find suitable housing for our loved ones. Do not rush into a situation you will regret. If you are happy with Murray Center then the best course of action is to WAIT, and do nothing.
(Defs.’ Ex. 125 (emphasis in original).) Murray guardians, of course, are free to make placement decisions for their wards as they see fit, despite any pressure from either the MPA or DHS. (See, e.g., 1/7/14 Hr’g Tr. (Winkeler) at 41–42.)
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majority of Murray families elected another SODC placement in lieu of considering CILAs. He nonetheless stated that, should that occur, he will find some way to respect those choices. (1/8/14 2 p.m. Hr’g Tr. (Casey) at 59.)
To that end, DHS has been working to increase capacity at the six other SODCs. (Casey Decl. ¶ 26; 1/9/14 9:30 a.m. Hr’g Tr. (Doyle) at 37–39.) Recognizing that “many families were going to opt for other SODC placements,” Defendants began resident assessments in the summer of 2013 for potential community placement for interested families from other locations. (1/9/14 9:30 a.m. Hr’g Tr. (Doyle) at 39.) At the hearing, Doyle testified that he anticipated approximately 95 additional transitions to be completed by March 2014 and that DHS would continue “to build capacity for potential Murray folks.”15 (Id.) DHS representatives have also stated that the Division will help Murray guardians seek placements at private ICF/DDs. (1/9/14 9:30 a.m. Hr’g Tr. (Doyle) at 35; 1/8/14 2 p.m. Hr’g Tr. (Casey) at 22–25; Defs.’ Exs. 100, 109; see also Yaunches Decl. ¶¶ 5–6, 9.)
When we consider all of these facts, including how the process works and DHS’s ongoing efforts to increase SODC capacity, we find that Defendants have not deprived, and will not deprive, Plaintiffs of their right to choose among placement options, even if those options have yet to be fully realized. V. CONCERNS ABOUT SERVICES PROVIDED IN CILAs
Apart from their concerns about the ACCT process, Plaintiffs highlight some of the problems they identified with the level of care provided at CILAs, as well as a few specific
15 If Doyle’s estimate held up, DHS could therefore accept roughly 195 inter-SODC transfers from Murray, subject to other admissions and discharges in the interim.
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incidents that have occurred when Murray or Jacksonville residents have transitioned into the
community.16 Plaintiffs contend that these facts show that CILAs cannot offer adequate services
for their wards and, to the contrary, will endanger their health and safety.
Plaintiffs cite to the testimony of Freeman, the GAL for several Murray OSG wards,
including fourteen individuals who have already transferred into CILAs from Murray.17 Freeman
has visited his clients’ CILA homes unannounced and identified several concerns at one or more
of these facilities, including: (1) lack of on-the-job experience among the staff; (2) low pay and
excessive work hours for the staff; (3) unlocked doors and/or medication containers;
(4) inadequate padding for a client who exhibits self-injurious behavior; (5) insufficient sheets or
safety measures for an client with pica disorder; (6) cleaning materials left in open access to the
residents; (7) lack of an appropriate biohazard disposal receptacle; and (8) lack of personalization
or decoration. (Freeman Decl. ¶¶ 10–16; see 1/7/14 Hr’g Tr. (Freeman) at 116–18.) Freeman
16 Plaintiffs relatedly point out that CILAs cannot provide twenty-hour nursing for disabled individuals. The record includes conflicting testimony on whether Murray residents currently require, or receive, twenty-hour nursing care. (Compare Casey Decl. ¶ 20 (stating that although a nurse may be on duty at some cottages at all times, “no one at Murray receives 24 hour per day nursing care”) and 1/8/14 10:30 a.m. Hr’g Tr. (Shaver) at 57–58 (testifying that 122 Murray residents attend his workshop daily and, despite their spectrum of issues, are capable of going out into the community) with Pls.’ Ex. 10 (Starr 6/24/13 email, reporting that 42 residents from two cottages “will need 24 hour nursing care”).) Perhaps there is some distinction—not addressed by the parties—between requiring nursing care twenty-four hours a day as a medical matter and benefitting from a nurse’s presence on site twenty-four hours a day.
Regardless, Defendants acknowledge that twenty-four hour nursing is not available in the community, although “any amount short of 24 hours is available . . . if medically necessary and would be funded.” (Casey Decl. ¶ 20; Yaunches Dep. at 46–48.) Based on the evidence to date, it appears that Murray residents who medically require twenty-hour nursing would not be eligible for community placement at all, but Murray residents who require regular but less-than-twentyhour nursing care can be accommodated in the community.
17 Freeman’s wards are not yet officially discharged from Murray but have been living at CILAs on “pre-transitional visits” for roughly a year. (Freeman Decl. ¶ 8.)
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encountered staff who did not know the location of the fire extinguishers or who lacked
knowledge about the use and location of medication logs. (Freeman Decl. ¶¶ 12–13.) Freeman
found that staff at two locations were not aware of, or conscientious about, resident dietary needs.
(Id. ¶¶ 12, 15.)
In addition, CILA employees informed Freeman that they would sometimes transfer
residents to another home for six to twelve hours, if staffing was short, and that employees would
purchase items for residents with their own money if needed, including Ensure when a resident
ran out of his or her required nutrition for a feeding tube. (Id. ¶ 18; see also 1/7/14 Hr’g Tr.
(Freeman) at 116–26; 1/7/14 Hr’g Tr. (Gibson) at 84–85.) Freeman also testified that he heard
that CILA staff were not grooming residents adequately and failed to consistently pack proper lunches for them.18 (1/7/14 Hr’g Tr. (Freeman) at 122–24.) (See also 1/7/14 Hr’g Tr. (Rapp) at
91–93.)
A few incidents require brief mention. One on occasion, CILA staff ran out of a client’s
seizure medication and could not obtain a refill for three or four days, which resulted in the
resident having several seizures and requiring hospitalization. (Freeman Decl. ¶ 15; 1/7/14 Hr’g
Tr. (Freeman) at 119–21.) At another location, in October 2013, Freeman dropped by in the
18 Much of the anecdotal testimony in the record—as presented by both parties—about the condition of particular CILAs or resident progress is hearsay. (See, e.g., Casey Decl. ¶ 36; Freeman Decl. ¶¶ 18; 1/7/14 Hr’g Tr. (Freeman) at 116–26.) To the extent such testimony is hearsay, we do not exclude it at this stage. (See 12/5/13 Op. (Dkt. No. 321) at 6.) In light of the opportunity here for the parties to develop a record prior to the preliminary injunction hearing, however, we decline generally to afford hearsay evidence as much weight as non-hearsay evidence.
That being said, we have not relied on Defendants’ exhibits 205 and 206, to which Plaintiffs objected, because we find them immaterial to our decision. We relatedly have not considered exhibits A, B, and C attached to the January 16, 2014 declaration of Rhonda Harris. (See Pls. Rebuttal to Affs. (Dkt. No. 373) at 2–3.)
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middle of the afternoon and found all three of the home’s employees outside smoking cigarettes, while the residents were inside unsupervised. (1/7/14 Hr’g Tr. (Freeman) at 124–26.) It is undisputed that a Murray resident, J.F., did not adjust well to her community placement and did not receive the supports she required, necessitating her return to an SODC.19 (Kerst Decl. ¶¶ 5–7, 11–12; Fields Decl. ¶¶ 5–12, 15; 1/9/14 2:05 p.m. Hr’g Tr. (Dufresne) at 19–20 (conceding that “the community did not have the right supports at the time for her”).) Finally, as is wellestablished in the record, two residents of a CILA had an argument, culminating in a physical fight, on May 26, 2013. (9/23/13 Decl. of Kelly Rapp ¶¶ 9–12; 1/7/14 Hr’g Tr. (Rapp) at 93–103.) Only one staff member was working at the time, in violation of staffing protocol, and she called the police to help break up the altercation. (Rapp Decl. ¶ 11; 1/7/14 Hr’g Tr. (Rapp) at 95–99.) Although she also contacted her supervisor, both prior to and after the incident, her supervisor did not arrive at the home until approximately two hours after the fight. (1/7/14 Hr’g Tr. (Rapp) at 106–08.)
Casey conceded that these incidents occurred and constitute serious problems in the CILA placements. (1/8/14 2 p.m. Hr’g Tr. (Casey) at 43–49; see also Casey Decl. ¶¶ 33–35.) Casey further testified—and it is not disputed—that altercations and mistakes, including medication errors, also occur in institutional settings. (1/8/14 2 p.m. Hr’g Tr. (Casey) at 46–47 (stating that about 62 peer-to-peer altercations occurred in a twelve-month period at Murray); Casey Decl. ¶ 35.) Plaintiffs have not presented evidence that residents in community placements face a
19 Numerous additional facts about J.F.’s situation are disputed. (Compare Kerst Decl. ¶¶ 8–10 and Fields Decl. ¶ 14 with 1/16/14 Decl. of Cassidy Spesard ¶¶ 6–7 and Yaunches Decl. ¶¶ 15.) We are not inclined to make credibility determinations with respect to conflicting declaration testimony but, in any event, these disputes are immaterial given the record before us.
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significant greater risk of altercations, medication errors, or other serious problems than residents of institutional placements. Nor have Plaintiffs presented evidence that such incidents in the community would result in greater or different harm than seen in an SODC.
LEGAL ANALYSIS AND CONCLUSIONS With these facts in mind, we turn to the merits of Plaintiffs’ motion. Plaintiffs have requested injunctive relief preventing the assessment and transfer of Murray residents and precluding the closure of Murray, and the appointment of a monitor. (See Pls.’ Br. ISO Legal Theory (Dkt. No. 159) at 7.) To obtain a preliminary injunction, Plaintiffs must show: (1) a reasonable likelihood of success on the merits; (2) no adequate remedy at law; and (3) irreparable harm absent the injunction. Planned Parenthood of Ind. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962, 972 (7th Cir. 2012); ACLU v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012); Long v. Bd. of Educ., Dist. 128, 167 F. Supp. 2d 988, 990 (N.D. Ill. 2001). If Plaintiffs meet all three of these threshold requirements, then we must go on to “consider the irreparable harm that the nonmoving party will suffer if preliminary relief is granted, balancing such harm against the irreparable harm the moving party will suffer if relief is denied.” Long, 167 F. Supp. 2d at 990 (internal quotations omitted); Planned Parenthood of Ind., 699 F.3d at 972. We must also “consider how the public’s interests would be affected by granting or denying the preliminary relief.” Long, 167 F. Supp. 2d at 990; Planned Parenthood of Ind., 699 F.3d at 972. With respect to all of these factors, the court applies “a sliding scale approach—the more likely the plaintiff will succeed on the merits, the less the balance of irreparable harms need favor the plaintiff’s position.” Long, 167 F. Supp. 2d at 990; Planned Parenthood of Ind., 699 F.3d at 972; Girl Scouts of Manitou
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Council, Inc. v. Girl Scouts of U.S., Inc., 549 F.3d 1079, 1100 (7th Cir. 2008). In the event of an appeal, the Seventh Circuit would review our “factual findings for clear
error, [our] legal conclusions de novo, and [our] balancing of the injunction factors for an abuse of discretion.” Planned Parenthood of Ind., 699 F.3d at 972; Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006). In preparation for any such appeal, the Seventh Circuit encourages us to “conduct at least a cursory examination of all the aforementioned preliminary injunction considerations,” even if we find that the moving party fails to satisfy one of them. Girl Scouts of Manitou Council, Inc., 549 F.3d at 1087. VI. LIKELIHOOD OF SUCCESS ON THE MERITS
Plaintiffs allege that Defendants’ conduct constitutes disability discrimination in violation of Title II of the ADA and § 504 of the Rehabilitation Act, denies Plaintiffs and the purported class members equal protection under the law, and deprives them of choice as required by § 1396n(c)(2)(C) of the Medicaid Act. The question posed by this first element of the preliminary injunction analysis is whether Plaintiffs have established a “better than negligible chance of succeeding on the merits of at least one of [these] claims.” Girl Scouts of Manitou Council, Inc., 549 F.3d at 1096; Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 897 (7th Cir. 2001); Washington v. Indiana High Sch. Ass’n, Inc., 181 F.3d 840, 846 (7th Cir. 1999). “This is an admittedly low requirement and is simply a threshold question.” Girl Scouts of Manitou Council, Inc., 549 F.3d at 1096 (citing Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 387 (7th Cir. 1984)). “Only after we clear the threshold inquiries and proceed to the balancing phase of the analysis must we determine how likely [Plaintiffs’] success must be for us to issue the requested injunction.” Girl Scouts of Manitou Council, Inc., 549 F.3d at 1096; Ty, Inc., 237 F.3d
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at 895. A. ADA and Rehabilitation Act Claims20 (Counts 1 and 2) To succeed on a claim of disability discrimination under these statutes,21 Plaintiffs must
demonstrate that: (1) they are (or represent) qualified individuals with disabilities; (2) they have been denied “the benefits of the services, programs, or activities of a public entity;” and (3) the denial or exclusion was “by reason of such disability.” 42 U.S.C. § 12132; see also 29 U.S.C. § 794(a); Brad K. v. Bd. of Educ. of City of Chi., 787 F. Supp. 2d 734, 746–47 (N.D. Ill. 2011); Phipps v. Sheriff of Cook Cty., 681 F. Supp. 2d 899, 913 (N.D. Ill. 2009). The third element—the “by reason of disability” language—requires a showing of “but for” causation. Wisconsin Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 752 (7th Cir. 2006); Washington, 181 F.3d at 849 (explaining that this language required proof that “but for his learning disability, [plaintiff] would have been eligible” for the particular program at issue). As there is no question that the Plaintiffs and their wards satisfy the first element, we turn our focus to the second and third elements.
1. Denial of the Benefits of Service, Programs, or Activities We begin our consideration of this second prong with the obvious question: what services, programs, or activities have Defendants allegedly denied Plaintiffs? Plaintiffs assert that they have been excluded “from the benefits and services of the Illinois SODC program,” as
20 These statutory discrimination claims are construed identically. Radaszewski v. Maram, 383 F.3d 599, 607 (7th Cir. 2004); Washington v. Indiana High Sch. Ass’n, Inc., 181 F.3d 840, 846 (7th Cir. 1999) (noting that the two statutes are coextensive).
21 The parties do not dispute that Defendants are a public entity, as necessary for an ADA claim, or that they receive federal funding assistance, as necessary for a Rehabilitation Act claim.
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intended by Defendants per the goals of the Initiative and as effectuated through the ACCT process. (Post-Hr’g Mem. at 7; see id. at 4, 6–8, 11–12, 14, 21; Post-Hr’g Reply at 3.) They relatedly contend that they have been excluded from choice and services under the Medicaid Act. (Post-Hr’g Mem. at 6–7.)
a. “SODC Program” Plaintiffs have not specified what particular benefits, services, or activities of the “Illinois SODC program” are at issue. Plaintiffs concede that they are not entitled to receive services or benefits at any particular SODC. (See Pls.’ Resp. to DOJ Interest St. (Dkt. No. 48) at 2–4 (“Regardless of Plaintiffs’ desire to continue living in their respective SODCs, Plaintiffs do not claim a right to live in these particular SODCs.”) Simply put, Murray residents and guardians have no legal claim to Murray itself. See O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 785–86, 100 S. Ct. 2467, 2475–75 (1980); Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906, 909–11 (7th Cir. 2003). To the extent that Plaintiffs contend that they have been, or will be, denied access to needed services at any SODC within the State, that claim is not supported by the record. As discussed in detail above, the evidence shows that: (1) Defendants will work with Murray guardians to arrange SODC placement for those who ultimately request it;22 and (2) Defendants are attempting to increase capacity at other SODCs to make such placements a reality. (See supra Part IV.) As a result, Plaintiffs have not established even a negligible chance of success on this argument.
22 Defendants assert that they are not legally obligated to offer Murray residents placements at other SODCs but are doing so to allay Plaintiffs’ concerns. (Post-Hr’g Resp. at 5.) Given the facts before us, we need not comment on Defendants’ position.
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b. ACCT Process Plaintiffs’ claim for a denial of benefits can be construed as an attack on the ACCT process itself rather than the deprivation of SODC placements. Plaintiffs presented evidence that Defendants have set aside their usual transition protocol, SOPP 181, and implemented the ACCT process, which does not necessarily involve substantial input from Murray staff. (See supra Part III.B.2.) Plaintiffs thus may be arguing that Defendants are depriving them of a “better” process involving Murray staff and instead are requiring them to participate in the ACCT process. There are several problems with this theory. First, Plaintiffs have not established any entitlement to SOPP 181, especially in the closure context, or to any other assessment process. Second, we are not in a position to determine whether either process at issue satisfies some unarticulated objective level of acceptability, let alone which process might be “better,” assuming they are not equivalent. Third, and most importantly, while Plaintiffs contest the intended outcome of the ACCT process, we have found that: (1) Defendants permit guardians to decline or cease participation in the ACCT process; and (2) guardians retain the right to reject any community placement recommendation. (See supra Parts III.C and IV.A.) Under these circumstances, Plaintiffs have not shown a likelihood of success on the theory that Defendants’ reliance on the ACCT process itself constitutes a denial of benefits, services, or activities.
c. Services Provided in the Community While Plaintiffs also presumably contend that Murray residents will not receive the same level of benefits in community placements (if selected), they have not adequately identified any significant particular services, programs, or activities that Defendants have failed, or likely would
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fail, to provide as needed. The record includes some evidence, for example, that dental care is difficult to obtain for the developmentally disabled in the community, but Plaintiffs have not argued that Defendants are denying access to such care. (See, e.g., Defs.’ Ex. 102 (9/9/12 MPA Mtg. Tr.) at 92–93 (Winkeler, stating that Medicaid will no longer pay for her brother’s general dental care in his community placement, and Casey, clarifying that the problem is Medicaidwide); Winkeler 30(b)(6) Decl. ¶ 17; Decl. of Kimberly Davis ¶¶ 12, 14.) Defendants concede that CILA placement is not an option for individuals who medically require twenty-four hour nursing care, which may include numerous Murray residents. (See supra Part V at n.16.) But Plaintiffs have not demonstrated that any individual who medically requires twenty-four hour nursing care has been, or likely will be, forced into a CILA that cannot meet that need. Nor can Plaintiffs make such a showing, in light of the substantial evidence that residents will not be transferred into the community over guardian objection. (See supra Part IV.A.)
We add that, although Plaintiffs presented evidence of personnel problems and several truly unacceptable conditions or errors at CILAs (see supra Part V), they have not addressed how these incidents represent a denial of benefits for ADA or Rehabilitation Act purposes, either as to the individuals affected or to the class as a whole. The parties did not raise the issue, but we perceive a potential difference between claims based on an isolated medication error or placement failure, for example, and claims based on a state’s hypothetical refusal to provide a certain type of medication or program altogether. See, e.g., Storr v. Marik, No. 13 C 3236, 2013 WL 6577374, at *4 (N.D. Ill. Dec. 10, 2013) (noting, in the context of a Fair Housing Act accommodation claim, that the “alleged failure to remove mold, install lighting, check for potential toxins, and replace faulty windows are properly characterized as landlord-tenant issues;
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they are not refusals to alter an existing policy or practice to allow an individual with a disability to enjoy the same access to property that other individuals enjoy.”). No doubt there is a line to be drawn, but we need not consider it today in light of our ruling.
In sum, the record establishes that no Murray resident will be transferred to a CILA over guardian objection. In light of this choice, and the availability of placement options, Plaintiffs have not established any measurable likelihood of success on this element.
2. By Reason of Disability We turn to the third and final element of the statutory discrimination claims, the causation inquiry. Wisconsin Cmty. Servs., 465 F.3d at 754; Washington, 181 F.3d at 849. Plaintiffs can succeed on this prong only if they demonstrate that “but for” their disabilities, they “would have been able to access the services or benefits desired.” Wisconsin Cmty. Servs., 465 F.3d at 754; see also Maxwell v. South Bend Work Release Ctr., No. 09 C 08, 2011 WL 4688825, at *6 (N.D. Ind. Oct. 3, 2011) (stating that plaintiff must prove his disability “was a necessary condition for his removal from the program”). The Seventh Circuit has explained that “discrimination under both acts may be established by evidence that (1) the defendant intentionally discriminated on the basis of disability, (2) the defendant refused to provide a reasonable accommodation, or (3) the defendant’s rule disproportionally impacts disabled people.” Washington, 181 F.3d at 847; Wisconsin Cmty. Servs., 465 F.3d at 753; Culvahouse v. City of LaPorte, 679 F. Supp. 2d 931, 937 (N.D. Ind. 2009). We begin with Plaintiffs’ overarching theory that the Initiative, and by extension the ACCT process, are themselves discriminatory. In their intentional discrimination argument, Plaintiffs contend that the Initiative and the ACCT process are designed to “recast”
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(i.e., downgrade) Murray residents’ disabilities23 so that the residents can be purposefully excluded from the SODC program and forced out into the community. (Post-Hr’g Mem. at 7–13.) Plaintiffs vilify Defendants’ position that “all persons with developmental disabilities can be served in a community setting with the appropriate supports and services.” (Mayer Decl. ¶ 10; see also supra Part III.B.1.) We agree with Defendants, however, that their predisposition in favor of the integration of the developmentally disabled population cannot alone constitute unlawful discrimination.
As Defendants point out, their position is entirely consistent with the Supreme Court’s decision in Olmstead. 527 U.S. at 587, 597, 601–07, 119 S. Ct. at 2181, 2185, 2187–90. The Olmstead court concluded that:
States are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. Id. at 607, 119 S. Ct. at 2190. The Initiative seeks to make community-based treatment a reality for more Illinois citizens who need and desire it, using the ACCT process to help determine whether the community can accommodate a particular individual. Defendants’ approach does involve a presumption about the disabled, but Plaintiffs have not presented either evidence or legal argument showing that Defendants’ presumption is an unlawfully discriminatory bias.
23 Plaintiffs have not introduced any evidence that this “recasting” or “reverseengineering” has taken place. The record lacks evidence, for example, that the extent of an SODC resident’s disability, or a particular diagnosis, or the assessment of the individual’s needs, has been altered inappropriately or intentionally during the ACCT process.
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Moreover, the record demonstrates that Defendants’ presumption in favor of integration is rebuttable. The parties agree that—even assuming guardian consent—not every SODC resident can be accommodated in the community, either because of the severity of their disabilities or because accommodations would not be cost-effective. (See supra Part II.B.; see also 1/7/14 Hr’g Tr. (Kelly) at 249; 1/8/14 10:30 a.m. Hr’g Tr. (Shaver) at 37–41.) This position, too, is consistent with Olmstead. In its opinion, the Supreme Court emphasized that “nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings.” 527 U.S. at 601–02, 119 S. Ct. at 2187. The court went on, specifically commenting that for some individuals, “no placement outside the institution may ever be appropriate.” Id. at 605, 119 S. Ct. at 2189 (“Nor is it the ADA’s mission to drive States to move institutionalized patients into an inappropriate setting, such as a homeless shelter.”). The Olmstead decision thus conditions community placement on several factors, including a conclusion by the State’s treatment professionals that a CILA is appropriate and consent from the affected person or guardian. The Initiative comports with these principles, as Defendants acknowledge that one size may not fit all and that guardians must consent to final placement decisions.
Aside from this overarching disagreement, Plaintiffs contend that their exclusion from the SODC program is “because of” their disability. We briefly address Plaintiffs’ evidentiary arguments below.
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a. Intentional Discrimination To demonstrate a likelihood of success under this approach, Plaintiffs must show that “but for” their disabilities, they would continue to enjoy equal access to the services offered through the SODC program, as well as equal choice. Wisconsin Cmty. Servs., Inc., 465 F.3d at 754; Washington, 181 F.3d at 849. Plaintiffs have framed this argument in various ways. For example, in their post-hearing brief, Plaintiffs assert that “‘but for’ the decision to recast Plaintiffs, pursuant to a predetermined agenda, Plaintiffs would not be excluded from the SODC Program and from participation in the full gamut of ICF-MR services and choice.” (Post-Hr’g Mem. at 12.) Plaintiffs relatedly contend that SODC residents—who are among the most severely disabled—are the “targets” of the Initiative. As a result, Defendants’ exclusion of them from the SODC program “is accomplished on the basis of disability by recasting” them for community living. (Id. at 12–13; see also Post-Hr’g Reply at 10.) Plaintiffs’ iterations are neither clear, nor persuasive. They do not satisfy the “but for” requirement because the “but for” cause, as described, is the Initiative itself, rather than Plaintiffs’ disabilities. There is no dispute that Murray residents are disabled and are affected by Defendants’ conduct. But we cannot infer from those facts alone that Defendants’ decisions to close Murray, to implement the ACCT process, or to adopt the Initiative were made “because of” Plaintiffs’ disabilities.24
24 Nor does the record suggest that Defendants have acted with any deliberate indifference. See Phipps, 681 F. Supp. 2d at 918 (noting that although intent is not required of all three Title II evidentiary approaches, the intentional approach typically requires a showing of “deliberate indifference,” at least where plaintiffs seek compensatory damages); Zachary M. v. Bd. of Educ. of Evanston Twp. High Sch. Dist. No. 22, 829 F. Supp. 2d 649, 662 (N.D. Ill. 2001); Access Living of Metro. Chi. v. Chi. Transit Auth., No. 00 C 770, 2001 WL 492473, at *7 (N.D. Ill. May 9, 2001).
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b. Failure to Accommodate The Seventh Circuit has set forth several important guideposts for evaluating failure to accommodate claims, also known as reasonable modification claims, under Title II. First, as our cases already hold, failure to accommodate is an independent basis for liability under the ADA. Second, the plain language of the [ADA implementing] regulation also makes clear that an accommodation only is required when necessary to avoid discrimination on the basis of a disability. Third, the regulation states, in its plain language, that any accommodation must be a reasonable one. Wisconsin Cmty. Servs., Inc., 465 F.3d at 751 (discussing 28 C.F.R. § 35.130(b)(7)) (emphasis in original). The court added that the pertinent regulation “clearly contemplates that prophylactic steps must be taken to avoid discrimination.” Id. Plaintiffs in these types of cases typically request modifications to allow them to fully participate in programs or opportunities that they otherwise would miss because of their disabilities. See, e.g., Wisconsin Comm’ Servs., 465 F.3d at 741–46, 754–55 (addressing plaintiff’s claim for a special use zoning permit that would permit a mental health clinic to relocate in a particular neighborhood); Washington, 181 F.3d at 842–43 (addressing plaintiff’s request, in light of his learning disabilities, for an exception to the rule limiting a player’s eligibility to play high school sports to eight semesters); Culvahouse, 679 F. Supp. 2d at 938–42 (addressing plaintiffs’ claims that the City of LaPorte violated Title II by failing to maintain and fix public sidewalks as necessary to enable disabled residents to use them to get around town). Here, Plaintiffs argue that “Defendants’ current plan of placing Murray residents into only 1-to-4 bed group homes and nowhere else violates the ADA because it fails to provide Plaintiffs
To the contrary, the record reflects non-discriminatory motives for Defendants’ decisions. (See supra Part II.B and III.B.1.)
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a reasonable accommodation.” (Post-Hr’g Mem. at 13 (emphasis in original).) As discussed throughout this opinion, the facts in the record do not support the assertion that Defendants have deprived or will deprive guardians of choice. (See supra Part III.C. and IV.) In addition, Plaintiffs have not articulated how the current plan constitutes discrimination because of the SODC residents’ disabilities or what further necessary accommodation would help avoid that discrimination. See Wisconsin Comm’ Servs., 465 F.3d at 754 (stressing that the disability must be the “cause-in-fact” of the alleged deprivation). Although Plaintiffs focus on the ACCT process, (see Post-Hr’g Reply at 10), Defendants have offered to accommodate Plaintiffs by permitting them to withdraw from that process and, moreover, by confirming Plaintiffs’ undisputed right to choose among placement options, whether or not the ACCT process is utilized. Plaintiffs have not requested any additional necessary, reasonable accommodation that could offer them relief.
c. Disparate Impact Disparate impact claims require “proof that a facially neutral policy unjustifiably falls more harshly on a protected group than on others.” Nikolich v. Vill. of Arlington Heights, 870 F. Supp. 2d 556, 563 (N.D. Ill. 2012); see Daveri Dev. Group, LLC v. Vill. of Wheeling, 934 F. Supp. 2d 987, 1002 (N.D. Ill. 2013). The Seventh Circuit recently clarified that disparate impact claims are cognizable under Title II even if comparing members of the same protected class, as alleged here. Amundson ex rel. Amundson v. Wisconsin Dep’t of Health Servs., 721 F.3d 871, 874–75 (7th Cir. 2013); see Nelson v. Milwaukee Cty., No. 04 C 193, 2006 WL 290510, at *5 (E.D. Wis. Feb. 7, 2006) (“[T]o the extent that plaintiffs allege that defendants are treating them
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worse than persons with less severe disabilities, they may proceed as such claims allege differential treatment by reason of disability.”).
Under this third approach, Plaintiffs assert that the Initiative, with the ACCT process, “disparately impacts the Plaintiffs from participation in the Illinois SODC Program (and services provided thereunder), and services that provide for the right to choose between adequate and safe institutional and community services.” (Post-Hr’g Mem. at 14.) The crux of Plaintiffs’ disparate impact argument—along with their equal protection argument—is that because they are residents of SODCs, they “have been singled out from the general adult DD population and denied equal access and equal choice” through and because of the ACCT process. (Id. at 20–21; see id. at 15, directing to equal protection argument at 20–23.) Plaintiffs claim that Defendants “want to deprive SODC residents of their services to give the money formerly utilized by SODC care to someone else whose disability is easier and cheaper for the state to handle.” (Id. at 23.)
Plaintiffs contend that they are being treated differently than other developmentally disabled adults who are not subject to the ACCT process because they do not reside in SODCs.25 But Plaintiffs have not introduced sufficient evidence that they are being treated “worse,” Amundson, 721 F.3d at 875, or “more harshly,” Nikolich, 870 F. Supp. 2d at 563, than this other group of individuals. Plaintiffs’ attacks on the ACCT process have fallen flat, as discussed earlier. (Supra Part III.B, III.C, and VI.A.1.b.) In addition, the evidence overall does not support Plaintiffs’ allegations that they have been or will be unjustifiably denied access to future
25 Residence in a particular location alone generally cannot be the basis of a Title II or Rehabilitation Act claim. Nelson, 2006 WL 290510, at *5 (“[T]o the extent that plaintiffs allege differential treatment based on . . . geography, their claims must be dismissed.”). We assume Plaintiffs refer to SODC residence as a proxy for the extent or severity of resident disabilities.
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institutional placements or to any particular necessary services. (Supra Part VI.A.1.) Nor does the evidence before us show any likelihood at all that Plaintiffs have been or will be denied their right to consent to community placement. (Supra Part IV.)
In sum, we conclude that Plaintiffs have not established a better than negligible likelihood of success on the merits of their ADA and Rehabilitation Act discrimination claims.
B. Equal Protection Claim (Count 4) We turn now to consider preliminarily the merits of Plaintiffs’ equal protection claim. To prevail, Plaintiffs must show that Defendants: (1) “treated [them] differently from others who were similarly situated, (2) intentionally treated [them] differently because of [their] membership in the class to which [they] belonged (i.e., [the developmentally disabled]), and (3) because [the disabled] do not enjoy any heightened protection under the Constitution, . . . that the discriminatory intent was not rationally related to a legitimate state interest.” Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 950–51 (7th Cir. 2002); City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 442, 105 S. Ct. 3249, 3255–56 (1985); Chavez v. Illinois State Police, 251 F.3d 612, 635–36, 645 (7th Cir. 2001); Anderson v. Cornejo, 284 F. Supp. 2d 1008, 1037–38 (N.D. Ill. 2003). “The core of any equal protection case is, of course, a showing of intentional discrimination.” Bohen v. City of Chi., 799 F.2d 1180, 1186–87 (7th Cir. 1986); Chavez, 251 F.3d at 645; Nabozny v. Podlesny, 92 F.3d 446, 453–54 (7th Cir. 1996). Similar to their disparate impact claim, Plaintiffs contend that Defendants are violating the Fourteenth Amendment’s equal protection clause by depriving them “of programs and services afforded to other developmentally disabled adults,” including the right to reject
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community placement. (Post-Hr’g Mem. at 20–21.) But as with the disparate impact claim,
Plaintiffs are unlikely to succeed on these allegations.
In addition, Plaintiffs’ evidence to date is inadequate to show that Defendants acted
intentionally, or at least with deliberate indifference for equal protection purposes. Chavez, 251
F.3d at 645; Nabozny, 92 F.3d at 453–54. This showing of discriminatory intent “implies that a
decisionmaker singled out a particular group for disparate treatment and selected his course of
action at least in part for the purpose of causing its adverse effects on the identifiable group.”
Nabozny, 92 F.3d at 453–54 (internal quotation omitted); Chavez, 251 F.3d at 645; Anderson,
284 F. Supp. 2d at 1038. Plaintiffs cannot succeed with proof merely that Defendants were
negligent or even that Defendants were aware of the consequences of their decision. Nabozny,
92 F.3d at 453–54 (internal quotation omitted); Chavez, 251 F.3d at 645. Plaintiffs here have not
offered evidence from which we could infer that Defendants have acted, in whole or in part, with
the express purpose of depriving SODC residents of either placement choice or necessary
services. Defendants admittedly seek to transition as many SODC residents as possible into
community arrangements, but, on the facts before us, we cannot make the inferential leap necessary to find that this goal suggests intentional discrimination.26
26 The parties also dispute Defendants’ stated rationales for adopting the Initiative and implementing the ACCT process. (Compare Post-Hr’g Mem. at 21–23 and Post-Hr’g Reply at 14–18 with Post-Hr’g Resp. at 18–20.) We need not address these arguments in detail. For the sake of thoroughness, we add merely that the record supports a conclusion that the Initiative is rationally-related to the State’s obligations under Olmstead. See Smith v. City of Chi., 457 F.3d 643, 652 (7th Cir. 2006) (“The rational-basis test is a lenient standard” such that “the government’s action simply cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.”); see also D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681, 686 (7th Cir. 2013); Srail v. Village of Lisle, Ill., 588 F.3d 940, 946–47 (7th Cir. 2009). We decline to address the State’s budgetary argument.
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C. Medicaid Act Claim (Count 5) In addition to their discrimination claims, Plaintiffs contend that the Initiative and the ACCT process violate Medicaid and related regulations. (Compl. ¶¶ 91–98; Post-Hr’g Mem. at 15–20; Post-Hr’g Reply at 10–14.) Under the HCBS Waiver Program, Congress authorized funding for “states to give individuals who would otherwise be eligible to receive Medicaid benefits in a more traditional, long-term institution the option of receiving care in their home or in community-based residences.” Ball v. Rodgers, 492 F.3d 1094, 1098 (9th Cir. 2007). In considering Plaintiffs’ claim, we are mindful that “the purpose of a waiver program . . . is to enable medically needy individuals to avoid institutionalization by making services available to them that are otherwise not part of the State’s basic Medicaid program.” Radaszewski, 383 F.3d at 611–12; see also id. at 601–02. To qualify for the HCBS Waiver Program, states must provide “certain ‘assurances’ to the Secretary of Health and Human Services.” Ball, 492 F.3d at 1098 (citing 42 U.S.C. §§ 1396n(c)(2), (d)(2)). Section 1396n(c)(2)(C) requires one such assurance: [S]uch individuals who are determined to be likely to require the level of care provided in a hospital, nursing facility, or intermediate care facility for the mentally retarded are informed of the feasible alternatives, if available under the waiver, at the choice of such individuals, to the provision of inpatient hospital services, nursing facility services, or services in an intermediate care facility for the mentally retarded. 42 U.S.C. § 1396n(c)(2)(C). The parties do not dispute that Murray residents qualify for ICFMR services and thus fall under this provision.27
27 We previously held that Plaintiffs have a private right to enforce § 1396n(c)(2)(C) through 42 U.S.C. § 1983. (10/8/13 Op. (Dkt. No. 286) at 18–20 (resolving motion to dismiss).)
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The parties do not entirely agree, however, on how we should interpret § 1396n(c)(2)(C). (Compare Post-Hr’g Resp. at 13–16 with Post-Hr’g Reply at 10–13.) We rely on the plain text of the statute and its regulations. See, e.g., Krzalic v. Republic Title Co., 314 F.3d 875, 879–80 (7th Cir. 2002) (“Usually when a statutory provision is clear on its face the court stops there, in order to preserve language as an effective medium of communication from legislatures to courts.”); Boulet v. Cellucci, 107 F. Supp. 2d 61, 76 (D. Mass. 2000) (relying on “traditional statutory analysis” to interpret § 1396n(c)(2)(C)). On its face—and as is consistent with the purpose underlying waiver programs—§ 1396n(c)(2)(C) requires states to inform covered individuals about any options available under the HCBS Waiver Program (i.e., feasible home or communitybased alternatives) and allow individuals to choose a waiver option as opposed to institutionalization. 42 U.S.C. § 1396n(c)(2)(C). The interpreting regulations comport with this reading and expressly provide that covered individuals or their representatives must be both: “(1) Informed of any feasible alternatives available under the waiver; and (2) Given the choice of either institutional or home and community-based services.” 42 C.F.R. § 441.302(d); see also id. § 441.303(d).
Circuit courts have agreed with this straightforward interpretation. The Ninth Circuit in Ball, for example, explained that § 1396n(c)(2)(C) grants individuals “two explicitly identified rights—(a) the right to be informed of alternatives to traditional, long-term institutional care, and (b) the right to choose among those alternatives.” 492 F.3d at 1107; Doe v. Kidd, 501 F.3d 348, 359 (4th Cir. 2007) (commenting that “the only choice referred to . . . is a choice between institutional or home-based and community-based services as a part of the waiver program”). Section 1396n(c)(2)(C) thus requires Defendants to inform Plaintiffs about any feasible
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alternatives under the HCBS Waiver Program for each Murray resident and then—if waiver options are available—give guardians a choice between the two types of settings. See Bertrand ex rel. Bertrand v. Maram, 495 F.3d 452, 459 (7th Cir. 2007) (explaining that this subsection does not mandate the state to offer any particular option but “just requires the provision of information about options that are available”); Grant ex rel. Family Eldercare v. Gilbert, 324 F.3d 383, 388 (5th Cir. 2003) (“[A]t most, the plain language of § 1396n(c)(2)(C) affords a right of information only for waiver applicants.”).
According to Plaintiffs, Defendants’ insistence that they consider and accept CILA placements, via the ACCT process, deprives them of choice as between institutional and community options under § 1396n(c)(2)(C). (Post-Hr’g Mem. at 16–19; Post-Hr’g Reply at 11–14.) As a threshold matter, we are not convinced that Plaintiffs’ theory falls under § 1396n(c)(2)(C), which protects guardian choice among settings once feasible waiver options are available. Defendants plainly have attempted to engage Plaintiffs and offer them alternative placements under the HCBS Waiver Program where possible. But the statute seems to presuppose that the individual entitled to information and choice is interested in community options. See Grant, 324 F.3d at 388. As Plaintiffs have rebuffed Defendants’ efforts to offer waiver options—and thus preemptively chosen institutional care—it is not clear that the choice provision of § 1396n(c)(2)(C) continues to apply, or to what further choice it should apply.
But in any event, even if we have misconstrued Plaintiffs’ theory or the scope of § 1396n(c)(2)(C), Defendants have not deprived Plaintiffs of their “choice of either institutional or home and community-based services” as a practical matter. 42 C.F.R. § 441.302(d). The record establishes that no Murray resident can or will be transferred into a CILA under the HCBS
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Waiver Program over guardian objection. (Supra Part IV.A.) The record also establishes that Defendants have expressed both a willingness and ability to accommodate families who wish to choose institutional placements, even where counterproductive to the Initiative. (Supra Part IV.B.) Under these circumstances, we cannot hold that Plaintiffs have any likelihood of success on the merits of this § 1396n(c)(2)(C) claim. VII. IRREPARABLE HARM
Although Plaintiffs have not shown a better than negligible likelihood of success on the merits of their claims, we continue our analysis of the preliminary injunction motion. We turn to the irreparable harm element, which resolves “the case where although the ultimate relief that the plaintiff is seeking is equitable, implying that he has no adequate remedy at law, he can easily wait till the end of trial to get that relief.”28 Roland Mach. Co., 749 F.2d at 386. In other words, “[o]nly if [the plaintiff] will suffer irreparable harm in the interim—that is, harm that cannot be prevented or fully rectified by the final judgment after trial—can he get a preliminary injunction.” Id.; Girl Scouts of Manitou Council, Inc., 549 F.3d at 1086. Plaintiffs contend that Murray residents face injury to their health and well-being, both physical and mental, because of “the predetermined placements which . . . [result] from going through the [ACCT process]” as well as because of the “lack of meaningful choice” under § 1396n(c)(2)(C). (Post-Hr’g Mem. at 25–26; see also Mem. ISO Prel. Inj. Mot. (Dkt. No. 9) at 20–21.)
Plaintiffs argue that the CILA placements, as predetermined through the ACCT process, are dangerous. Plaintiffs introduced troubling evidence of problems with certain CILA
28 The parties did not separately address whether Plaintiffs lack an adequate remedy at law necessitating injunctive relief. Plaintiffs seek only injunctive relief, and we assume for present purposes that they have met this requirement. See Roland Mach. Co., 749 F.2d at 386.
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placements, causing their concerns about future (though speculative) errors, which could result in serious harm. (Supra Part V.) For their part, Defendants offered evidence that other former SODC residents have succeeded in the community and that similar problems arise at Murray as well. (Id.) While we are sympathetic to Plaintiffs’ fears, and do not condone the mistakes made at certain CILAs, the record before us does not establish any level of likelihood that SODC residents “will suffer” irreparable harm in the absence of an injunction. See Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 22, 129 S. Ct. 365, 375–76 (2008) (clarifying that the plaintiff must show “that irreparable harm is likely in the absence of an injunction,” not just possible); East St. Louis Laborers’ Local 100 v. Bellon Wrecking & Salvage Co., 414 F.3d 700, 704 (7th Cir. 2005) (“Speculative injuries do not justify this extraordinary remedy.”).
Even if we accept Plaintiffs’ assertion that residents transferred into CILAs are likely to suffer irreparable harm, such harms would not occur as a result of the much-maligned ACCT process. Neither Defendants, nor the ACCT process, require guardians to choose a CILA placement. Accordingly, granting an injunction to curtail the ACCT process during the pendency of this action, as Plaintiffs suggest, would not give Plaintiffs any relief or authority that they do not already possess.
Yet Plaintiffs also contend that the ACCT “process itself presents an irreparable harm.” (Post-Hr’g Mem. at 25.) Plaintiffs have not introduced any evidence whatsoever that the ACCT process itself inflicts irreparable harm. Kelly testified that her son “might be upset” if required to meet strangers during the ACCT process. (1/7/14 Hr’g Tr. (Kelly) at 250.) While Kelly’s concern is understandable, this evidence hardly establishes that either Murray residents or their guardians will suffer harm, let alone irreparable harm, simply by participating in the ACCT
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process. Plaintiffs’ criticisms of Defendants’ reliance on CRA staff and the Murray ISPs similarly do not reveal harm, irreparable or otherwise. (See Supra Part III.B.2.) Plaintiffs may feel that the ACCT process is a waste of their time and taxpayer money, but we cannot find that it causes irreparable harm. VIII. BALANCING OF INTERESTS
At this point, we conclude that Plaintiffs’ claims have not survived the threshold phase of the preliminary junction analysis. Having determined that Plaintiffs have failed to show either a likelihood of success on the merits or irreparable harm, we must deny the requested injunction. Girl Scouts of Manitou Council, Inc., 549 F.3d at 1086; Daveri Dev. Group, LLC, 934 F. Supp. 2d at 995. We briefly consider the balancing phase, should an appeal follow. Girl Scouts of Manitou Council, Inc., 549 F.3d at 1087.
Utilizing a sliding scale approach, we balance the irreparable harm that Plaintiffs will suffer if relief is denied against the irreparable harm that Defendants will suffer if relief is granted. See Long, 167 F. Supp. 2d at 990 (internal quotations omitted); Planned Parenthood of Ind., 699 F.3d at 972. We also factor in the public interest in the outcome of the motion. Long, 167 F. Supp. 2d at 990; Planned Parenthood of Ind., 699 F.3d at 972. The purpose of this second phase is to “minimize the cost of potential error.” Girl Scouts of Manitou Council, 549 F.3d at 1086.
As discussed above, Plaintiffs have not established that they will suffer irreparable injury without an injunction. Defendants, on the other hand, argue that an injunction would “impermissibly interfere with the State’s right to administer its budget and make policy decisions.” (Post-Hr’g Resp. at 23.) They further argue that an injunction would exacerbate the
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financial burden on taxpayers and impede the Initiative. (Id.) While Defendants contend that this balance of harms tips in their favor, they do not claim to face irreparable harm should an injunction issue. (Post-Hr’g Resp. at 23–25.) Thus, neither party faces irreparable harm from our ruling. A preliminary injunction is an extraordinary remedy, Roland Mach. Co., 749 F.2d at 389, and is not warranted under such circumstances. See also Daveri Dev. Group, LLC, 934 F. Supp. 2d at 995 (noting that a “preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion”).
Before concluding, we recognize the public interest in this action, as well as the parties’ interests. As we have previously stated, this case has important ramifications for both sides, as well as the citizens of Illinois. Plaintiffs are confronted with a most unwelcome development in Murray’s expected closure. They have legitimate worries about the placements, transitions, and future care of their loved ones.29 Meanwhile, Defendants seek to improve efficiency by serving more citizens, to effectuate public policy favoring the integration of the disabled when feasible, and to potentially improve the state budget. The employees of Murray, residents of Centralia, and service providers for Murray residents naturally have their own concerns and interests. And the taxpayers across Illinois are invested in this litigation as well, both as contributors to the State budget and as citizens concerned about the care of the State’s disabled population. Some of
29 Plaintiffs assert that CILA residents—and their neighbors—are threatened by illadvised CILA placements. (Post-Hr’g Mem. at 26–27.) Plaintiffs did not identify evidence supporting their claim that the alleged danger to CILA residents extends to their neighbors, and we are not inclined to adopt their conclusion without more. (See id. at 27 (focusing on threats to the developmentally disabled, not their neighbors).)
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these interests may conflict, some do not, but all are important. We are not unsympathetic to the real human concerns raised by Plaintiffs in their diligent
and highly professional advocacy as guardians, on behalf of their loved ones as well as other families facing this predicament. We recognize that Murray’s closure may cause distress and disruption for Plaintiffs, their wards, and their families. In the end, however, we cannot grant them legal relief on the record before us, which does not permit us to conclude that Plaintiffs’ interests outweigh Defendants’ interests, particularly given Plaintiffs’ lack of likelihood of success on the merits and lack of irreparable harm. See Planned Parenthood of Ind., 699 F.3d at 972 (“The strength of the moving party’s likelihood of success on the merits affects the balance of harms.”); Girl Scouts of Manitou Council, Inc., 549 F.3d at 1086.
CONCLUSION For the reasons detailed above, we deny Plaintiffs’ motion for preliminary injunction (Dkt. No. 8). We also lift the temporary restraining order previously entered on June 12, 2013 (Dkt. No. 90).30 It is so ordered.

Dated: July 21, 2014

________________________________ Honorable Marvin E. Aspen U.S. District Court Judge

30 As suggested earlier, Defendants should consider clarifying for Murray families exactly how and to whom guardians should express their wishes to decline or cease participation in the ACCT process, the full ramifications of that decision, and how guardians should proceed to obtain individualized assessment and future placement outside the ACCT process.
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 Case: 1:13-cv-01300 Document #: 420 Filed: 11/06/15 Page 1 of 11 PageID #:7001

Case: 14-2850 Document: 00712643121

Filed: 11/06/2015 Pages: 11

In the
United States Court of Appeals
For the Seventh Circuit
____________________ No. 14-2850 ILLINOIS LEAGUE OF ADVOCATES FOR THE DEVELOPMENTALLY DISABLED, et al.,
Plaintiffs-Appellants,
v.
ILLINOIS DEPARTMENT OF HUMAN SERVICES, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 13 C 1300 — Marvin E. Aspen, Judge.
____________________
ARGUED SEPTEMBER 9, 2015 — DECIDED OCTOBER 15, 2015 ____________________
Before POSNER, MANION, and HAMILTON, Circuit Judges. POSNER, Circuit Judge. This lawsuit charges violations of 42 U.S.C. § 12132, a provision of Title II of the Americans with Disabilities Act which states that “no qualified individual with a disability shall, by reason of such disability, … be subjected to discrimination by any [public] entity,” and of

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Case: 14-2850 Document: 00712643121

Filed: 11/06/2015 Pages: 11

2

No. 14-2850

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, which has identical application to this case. See Jaros v. Illinois Dept. of Corrections, 684 F.3d 667, 671–72 (7th Cir. 2012).
The suit was filed two years ago on behalf of the residents of Warren G. Murray Developmental Center, an SODC (state-operated developmental center). Located in Centralia, a small city in south-central Illinois, the Murray Center is one of seven SODCs in the state. Its residents (approximately 200 in number) are severely disabled, some having the mentality of an infant or toddler. Many not only are developmentally disabled but also have serious behavioral problems (often aggressive, or self-destructive as in the case of pica disorder—attempting to eat inedible objects).
The state’s seven SODCs have in the aggregate about 1800 residents. A much larger number of persons (roughly 10,000) with severe developmental disabilities live in community-based (also called community-integrated) facilities, which are houses or apartments in residential settings that can accommodate between one and eight residents. The Division of Developmental Disabilities in the Illinois Department of Human Services provides services (such as housing and medical care) to approximately 25,000 developmentally disabled persons. Another 23,000 or so are on a waiting list to receive services, of whom 6000 are considered to be in emergency situations yet do not receive even essential services from the State of Illinois.
Since 2012 Illinois has been trying to shift the residents of the SODCs to community-based facilities, in accordance with a national trend—and a dramatic one, which has left Illinois a laggard outlier, with a higher number of SODC residents than any states except New Jersey and Texas. In 2013

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3

Illinois had the second lowest percentage of developmentally disabled persons living in apartments that house six or fewer persons (Mississippi had the lowest percentage), while 13 states were no longer funding state-operated institutions designed to house 16 or more persons. David Braddock et al., The State of the States in Intellectual and Developmental Disabilities: Emerging from the Great Recession 21, 27, 31 (10th ed. 2015).
This trend that Illinois seeks to join reflects the financial distress of many states (of which Illinois may be the most distressed)—community-based facilities are cheaper than SODCs—but also a belief, supported both by evidence and by academic studies, that even persons who are severely disabled mentally or behaviorally or both do better in community-based facilities than in SODCs because they feel less isolated. The district judge in this case noted for example that “community programs are considered the best practice standard by the majority of professionals in the field. Community programs have been developing for at least 50 years and are not a fad” (citations omitted). The judge cited testimony that overall “people with intellectual disabilities do better in community programs.” For illustrative academic studies that support these conclusions see Charlie Lakin et al., “Behavioral Outcomes of Deinstitutionalization for People with Intellectual and/or Developmental Disabilities: Third Decennial Review of U.S. Studies, 1977–2010,” 21(2) Policy Research Brief 1 (2011); Roger J. Stancliffe et al., “Satisfaction and Sense of Well Being Among Medicaid ICF/MR and HCBS Recipients in Six States,” 47 J. Intellectual & Developmental Disabilities 63 (2009); Marguerite Brown et al., Eight Years Later: The Lives of People Who Moved from Institutions to Communities in California (2001); Valerie J. Bradley et al., Re-

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sults of the Survey of Current and Former Belchertown Residents and Their Families: The Belchertown Follow-Project (1992); Sheryl A. Larson & K. Charlie Lakin, “Deinstitutionalization of Persons with Mental Retardation: Behavior Outcomes,” 14 J. Association for Persons with Severe Handicaps 324 (1989); James W. Conroy & Valerie J. Bradley, The Pennhurst Longitudinal Study: A Report of Five Years of Research and Analysis 48–65 (1985); see also U.S. Senate Comm. on Health, Education, Labor and Pensions, Separate and Unequal: States Fail to Fulfill the Community Living Promises of the Americans with Disabilities Act (2013); National Council on Disability, Deinstitutionalization: Unfinished Business (2012).
One reason the residents of community-based facilities do better, at least on average, is less crowding. Fewer than 20 percent of the Murray Center’s residents have their own room, and some rooms house as many as four residents. A resident of a community-based facility is more likely to have his or her own room. Residents of community-based facilities also have readier access to stores, restaurants, movie theaters, parks, etc. than do residents of SODCs. They may be too disabled to visit any of these places by themselves, but they benefit emotionally from being able to go out into the community—expand their horizons, as it were—albeit under close supervision by nurses or other medical staff, rather than being isolated in a large medical center. To be “institutionalized,” whether in a prison, a madhouse, or a “state-operated developmental center,” is to be frozen out of society—a situation that even a severely developmentally disabled person can experience as deprivation. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 600–01 (1999).

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Not that community-based facilities are a panacea. The plaintiffs presented evidence that some community-based facilities have problems of short staffing and staff mistakes. But the record contains evidence of such problems at Murray and other SODCs, as well.
Early in 2012 Illinois launched a program to reduce the number of residents of SODCs by roughly a third. Two of the eight SODCs would be closed—and one of them was to be Murray. Scheduled to be closed in 2013, it remains open only because of this litigation. The other one scheduled to be closed, Jacksonville Developmental Center, has closed.
What will happen to the Murray residents when, as is bound to happen sooner or later, Murray is closed? Most will be placed in community-based facilities; those too disabled or otherwise unfit to reside in such facilities will be transferred to one of the remaining SODCs. Each current Murray resident is to be “assessed” for his or her suitability for community-based versus institutional residence. One goal of this lawsuit is to stop the assessment process. All residents of the Murray Center have a guardian (usually a relative of the resident), and a number of the guardians don’t want their wards transferred to community-based facilities. They are the plaintiffs, and they moved the district judge to issue a preliminary injunction against the assessment and transfer of the plaintiffs’ wards. The judge denied the motion, precipitating this appeal. 28 U.S.C. § 1292(a)(1). He noted that a resident will not be transferred to a communitybased facility without his or her guardian’s consent; and since Murray has not been closed, this means that any resident will continue, for the time being at any rate, to reside there if that is the guardian’s wish. If and when Murray is

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closed, other SODCs will remain and there will be places in them for those residents of the Murray Center whose guardians don’t think them suited to reside in community-based facilities. There will be places for such wards because most residents of SODCs will be transferred to community-based facilities (that’s the trend, remember), leaving room in the remaining SODCs for those few whose guardians don’t think they are fit for community placement.
The plaintiffs say that residents of community-based facilities are treated worse on average than residents of institutional facilities. But they have not substantiated their claim by a systematic comparison of residents of the two types of facility. Cf. Amundson ex rel. Amundson v. Wisconsin Dept. of Health Services, 721 F.3d 871, 874–75 (7th Cir. 2013). Their claim is undermined, indeed vitiated, by their refusal to recognize a tradeoff between possibly better staff assistance in an institutional facility and the greater freedom—the closer approach to normality—of life in a community-based facility. They’ve also failed to substantiate their claim that their wards are mistreated relative to individuals with other types of disability. Remember that the plaintiffs have been granted veto power over the transfer of their wards to communitybased facilities. True, they deny this, but the district court explained that while the plaintiffs “contend that DHS [the Illinois Department of Human Services] is forcing them to accept [community-based] placements as the only choice, stripping them of their right to consent to such placements[,] on the whole … the facts in the record—including uncontroverted written evidence—do not support a finding that Defendants are impeding or would impede Plaintiffs’ right to consent to, or reject, community placement” (emphasis added). Their “right to reject” is properly regarded as in lieu of

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preliminary relief—relief now even though the litigation is continuing in the district court. The guardians’ veto power over the transfer of their wards to community-based facilities is a compelling ground for affirming the district court’s denial of a preliminary injunction; with no danger of irreparable harm, which is to say harm that can’t be prevented by the final judgment, there is no need or occasion for the issuance of a preliminary injunction.
We are mindful that as the population of the Murray Developmental Center shrinks in consequence of the decision of some (maybe many) guardians to permit their wards to be transferred to community-based facilities, a point will be reached at which the cost of operating the Center will exceed the benefits because there will be so few residents remaining. Keeping the Center open will then be like trying to maintain a 100-room hotel only one room of which is occupied. And so the Center will be closed and the remaining handful of residents transferred either to other SODCs or to community-based facilities. That will not be a discriminatory outcome. The handful not transferred until Murray closes will not be treated worse than residents transferred earlier. The plaintiffs concede that they have no right to their wards’ being housed at Murray—that they would have no cause to complain were their wards to be transferred to another SODC that provided services equivalent to those provided by Murray.
There is more that is wrong with the appeal than the absence of any showing of discrimination. To obtain a preliminary injunction the movant must show not only that its denial will cause harm to him that a final judgment will not be able to rectify—in other words, as we noted earlier, that the

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denial will cause irreparable harm—but also that this harm, discounted by the probability of the plaintiff’s failing to obtain a favorable final judgment, will exceed the harm that the preliminary injunction would do to the defendant. See Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386–88 (7th Cir. 1984). Let’s pause on this second requirement for a moment. Suppose the plaintiff has a 60 percent chance of obtaining a favorable final judgment, and will suffer an irreparable harm of $1 million if his motion for a preliminary injunction is denied. There is therefore a 60 percent chance that if the preliminary injunction is granted he will justly be spared a $1 million loss, and so the injunction should be granted unless the defendant can show that he is at a higher risk of loss than the plaintiff if the injunction is granted. Suppose that if it’s granted the defendant will lose $2 million. We know there’s a 40 percent chance that the defendant is in the right (for remember that we are assuming that the plaintiff has a 60 percent chance of prevailing in the litigation). That means that if the preliminary injunction is granted he will suffer an expected unjust loss of $800,000 (40% of $2 million), which will exceed the plaintiff’s parallel expected unjust loss if the preliminary injunction is denied, which is $600,000 (60% of $1 million). Therefore the preliminary injunction should be denied.
We don’t have neat numbers in this case that would enable us to measure loss and probability, as in our hypothetical case. But we don’t need them. The plaintiffs are seeking to enjoin the state from assessing the capacity of residents of the Murray Center to reside in community-based facilities in the absence of guardian consent to the assessment, and to prevent Murray from being closed during this litigation. If granted, the injunction would impose costs on the state, be-

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cause the institutional facilities are more costly than the community-based ones, as we’ve said. In addition, unassessed residents of Murray could not be offered transfer to community-based facilities, for the purpose of the assessment is to determine what kind of facility the disabled person requires. (Whether a resident could be transferred to another SODC without an assessment is unclear.)
So even if a preliminary injunction were limited to enjoining assessment, it could prevent Murray from being closed though only a handful of residents remained, and though on average developmentally disabled persons assessed as being suitable for residence in a community-based facility would be better off if in such a facility than if they remained in an institution. So there would be costs to the state (the costs of continuing to operate Murray) if a preliminary injunction were granted, and these costs could not be recouped. But it doesn’t seem that refusing to issue the injunction can impose costs on anyone, because the guardians (the plaintiffs) remain empowered to prevent their wards from being transferred to community-based facilities even if the “assessors” conclude that those wards would be better off in such facilities. The grant of the preliminary injunction sought by the plaintiffs would impose irreparable harm on the state, but, as we’ve seen, the denial of it would impose no irreparable harm on the plaintiffs, thus making the case against the injunction airtight.
The plaintiffs’ refusal to allow their wards to be assessed during this litigation also collides with 42 U.S.C. § 1396n(c)(2)(B), which provides that a state accepting federal funds under section 1915(c) of the Social Security Act, which waives some limitations imposed by the Medicaid Act

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on home and community-based provision of medical services, must “provide … for an evaluation of the need for inpatient hospital services.” See also 59 Ill. Admin. Code § 120.80(a).
Yet the plaintiffs claim that the Medicaid Act entitles them to insist that their wards remain in an SODC. (Because neither party argues otherwise, we assume for purposes of this appeal that 42 U.S.C. § 1983 supplies a private right of action to enforce claims under the relevant provision of the Act, which is 42 U.S.C. § 1396n(c)(2)(C); cf. Bertrand ex rel. Bertrand v. Maram, 495 F.3d 452, 456–58 (7th Cir. 2007).) The claim is academic, since as we’ve explained the guardians can (and this regardless of the Medicaid Act) insist that their wards remain in an SODC (though they cannot insist on a particular SODC). It is also meritless. The Act allows a state to provide community-based living arrangements to people who would otherwise be institutionalized if the state applies for and receives a waiver under the statutory provision that we cited earlier. See Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599, 601 (7th Cir. 2004). For the state to be eligible for the waiver, it must make sure that the individuals likely to need institutional care “are informed of the feasible alternatives, if available under the waiver, at the choice of such individuals, to the provision of inpatient hospital services, nursing facility services, or services in an intermediate care facility for the mentally retarded.” 42 U.S.C. § 1396n(c)(2)(C). The state must also have a plan for “allowing beneficiaries to choose either institutional services or home and communitybased services.” 42 C.F.R. § 441.303(d); see also id., § 441.302(d). But choice is limited to “feasible” options “available” under the waiver. Bertrand ex rel. Bertrand v. Maram, supra, 495 F.3d at 459, explains that the statute does

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not require a state to offer any particular option; it “just requires the provision of information about options that are available.” Cf. Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906, 910–11 (7th Cir. 2003). The plaintiffs have presented no evidence that their wards would be denied the lawfully required level of care even if Illinois were to close all its SODCs.
The urgency required for emergency relief has not been shown. The denial of a preliminary injunction is therefore
AFFIRMED.

 
 Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 1 of 44
MARTIN,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.2.1 (Chicago)
CIVIL DOCKET FOR CASE #: 1:13−cv−01300

Illinois League of Advocates for the Developmental et al v. Illinois Department of Human Services et al Assigned to: Honorable Marvin E. Aspen Case in other court: 14−02850 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 02/19/2013 Date Terminated: 03/03/2016 Jury Demand: Both Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Karen Kelly as Guardian for Eric Schutzenhofer

represented by Barton James O'Brien Taft Stettinius & Hollister LLP 111 East Wacker Drive Suite 2800 Chicago, IL 60601 (312) 527−4000 Email: bobrien@taftlaw.com TERMINATED: 01/08/2015 LEAD ATTORNEY

Judith Schwartz Sherwin Lewis Brisbois Bisgaard & Smith, LLP 550 West Adams Suite 300 Chicago, IL 60661 (312) 345−1718 Email: Judith.Sherwin@lewisbrisbois.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen Fitzgerald Howlett Shefsky & Froelich 111 E. Wacker Drive Suite 2800 Chicago, IL 60601 (312) 836−4020 Email: khowlett@shefskylaw.com TERMINATED: 01/08/2015 LEAD ATTORNEY

Sarah R Burky Taft Stettinius & Hollister LLP 111 East Wacker Drive Suite 2800 Chicago, IL 60601 (312) 840−4312 Email: sburky@shefskylaw.com TERMINATED: 01/08/2015 LEAD ATTORNEY

Sherri L. Thornton−Pierce Taft Stettinius & Hollister LLP 111 East Wacker Drive Suite 2800 Chicago, IL 60601 (312) 527−4000 Email: SThornton@taftlaw.com TERMINATED: 01/08/2015 LEAD ATTORNEY

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 2 of 44

Daniel Reza Saeedi Taft Stettinius & Hollister LLP 111 E. Wacker Drive Suite 2800 Chicago, IL 60601 312 840 4316 Email: dsaeedi@taftlaw.com TERMINATED: 01/08/2015

Gabriel Reilly−Bates Taft Stettinius & Hollister LLP 111 East Wacker Drive Suite 2800 Chicago, IL 60601 (312)527−4000 Email: gbates@taftlaw.com TERMINATED: 01/08/2015

Megan Kelly McGrath Cook County State's Attorney Office 500 Richard J. Daley Center Chicago, IL 60604 (312) 603−5967 Email: megan.mcgrath@cookcountyil.gov TERMINATED: 01/08/2015

Plaintiff
Elizabeth Gersbacher as Guardian for Charlie Washington and Linda Faye Higgins

represented by Barton James O'Brien (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Judith Schwartz Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen Fitzgerald Howlett (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sarah R Burky (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sherri L. Thornton−Pierce (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Daniel Reza Saeedi (See above for address) TERMINATED: 01/08/2015

Gabriel Reilly−Bates (See above for address) TERMINATED: 01/08/2015

Megan Kelly McGrath (See above for address) TERMINATED: 01/08/2015

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 3 of 44

Plaintiff
Illinois League of Advocates for the Developmentally Disabled

represented by Barton James O'Brien (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Judith Schwartz Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen Fitzgerald Howlett (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sarah R Burky (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sherri L. Thornton−Pierce (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Daniel Reza Saeedi (See above for address) TERMINATED: 01/08/2015

Gabriel Reilly−Bates (See above for address) TERMINATED: 01/08/2015

Megan Kelly McGrath (See above for address) TERMINATED: 01/08/2015

Plaintiff Murray Parents Association, Inc.

represented by Barton James O'Brien (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Judith Schwartz Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen Fitzgerald Howlett (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sarah R Burky (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sherri L. Thornton−Pierce (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 4 of 44

Gabriel Reilly−Bates (See above for address) TERMINATED: 01/08/2015

Megan Kelly McGrath (See above for address) TERMINATED: 01/08/2015

Plaintiff
Rita Winkeler as Guardian for Mark and Mark Winkeler

represented by Barton James O'Brien (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Judith Schwartz Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen Fitzgerald Howlett (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sarah R Burky (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sherri L. Thornton−Pierce (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Gabriel Reilly−Bates (See above for address) TERMINATED: 01/08/2015

Megan Kelly McGrath (See above for address) TERMINATED: 01/08/2015

Plaintiff
Lauren Stengler as Guardian for Wayne Alan Stengler

represented by Barton James O'Brien (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Judith Schwartz Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen Fitzgerald Howlett (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sarah R Burky (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sherri L. Thornton−Pierce

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 5 of 44

(See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Gabriel Reilly−Bates (See above for address) TERMINATED: 01/08/2015

Megan Kelly McGrath (See above for address) TERMINATED: 01/08/2015

Plaintiff
Stan Krainiski as Guardian for Steven Edward Krainski

represented by Barton James O'Brien (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Judith Schwartz Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen Fitzgerald Howlett (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sarah R Burky (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sherri L. Thornton−Pierce (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Gabriel Reilly−Bates (See above for address) TERMINATED: 01/08/2015

Megan Kelly McGrath (See above for address) TERMINATED: 01/08/2015

Plaintiff
Barbara Cozzone−Achino as Guardian for Robert Metullo

represented by Barton James O'Brien (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Judith Schwartz Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen Fitzgerald Howlett (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sarah R Burky (See above for address)

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 6 of 44

TERMINATED: 01/08/2015 LEAD ATTORNEY

Sherri L. Thornton−Pierce (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Gabriel Reilly−Bates (See above for address) TERMINATED: 01/08/2015

Megan Kelly McGrath (See above for address) TERMINATED: 01/08/2015

Plaintiff
Robyn Pannier as Guardian for Benjamin Pannier

represented by Barton James O'Brien (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Judith Schwartz Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen Fitzgerald Howlett (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sarah R Burky (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sherri L. Thornton−Pierce (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Gabriel Reilly−Bates (See above for address) TERMINATED: 01/08/2015

Megan Kelly McGrath (See above for address) TERMINATED: 01/08/2015

Plaintiff
Jeannie L. Williams as Guardian for John L. Fuller, Jr.

represented by Barton James O'Brien (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Judith Schwartz Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen Fitzgerald Howlett (See above for address) TERMINATED: 01/08/2015

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 7 of 44

LEAD ATTORNEY

Sarah R Burky (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sherri L. Thornton−Pierce (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Gabriel Reilly−Bates (See above for address) TERMINATED: 01/08/2015

Megan Kelly McGrath (See above for address) TERMINATED: 01/08/2015

Plaintiff
David Iacono−Harris as Guardian for Jonathon P. Iacono−Harris

represented by Barton James O'Brien (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Judith Schwartz Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen Fitzgerald Howlett (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sarah R Burky (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sherri L. Thornton−Pierce (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Daniel Reza Saeedi (See above for address) TERMINATED: 01/08/2015

Gabriel Reilly−Bates (See above for address) TERMINATED: 01/08/2015

Megan Kelly McGrath (See above for address) TERMINATED: 01/08/2015

Plaintiff
Robert Pokorny Dr., as Guardian for Robert James Pokorny

represented by Barton James O'Brien (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 8 of 44

Judith Schwartz Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen Fitzgerald Howlett (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sarah R Burky (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sherri L. Thornton−Pierce (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Gabriel Reilly−Bates (See above for address) TERMINATED: 01/08/2015

Megan Kelly McGrath (See above for address) TERMINATED: 01/08/2015

Plaintiff
Gail K. Myers as Guardian for Mark Andrew Wymore

represented by Barton James O'Brien (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Judith Schwartz Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen Fitzgerald Howlett (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sarah R Burky (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Sherri L. Thornton−Pierce (See above for address) TERMINATED: 01/08/2015 LEAD ATTORNEY

Gabriel Reilly−Bates (See above for address) TERMINATED: 01/08/2015

Megan Kelly McGrath (See above for address) TERMINATED: 01/08/2015

V.

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 9 of 44

Defendant Illinois Department of Human Services

represented by Thomas A. Ioppolo Illinois Attorney General's Office (100 W) 100 West Randolph Street Chicago, IL 60601 (312)814−7198 Email: tioppolo@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura Marie Ranum The Sotos Law Firm, P.C. 550 E. Devon Avenue Suite 150 Itasca, IL 60143 (630) 735−3300 Email: Lranum@jsotoslaw.com TERMINATED: 03/25/2015 ATTORNEY TO BE NOTICED

Marni M. Malowitz Illinois State Police 1941 W. Roosevelt Rd. Chicago, IL 60608 312 433 8000 ext. 2043 Email: marni_malowitz@isp.state.il.us TERMINATED: 07/22/2014

Sunil Shashikant Bhave Illinois Attorney General 100 W. Randolph St., 13th Floor Chicago, IL 60601 (312) 814−4450 Email: sbhave@atg.state.il.us ATTORNEY TO BE NOTICED

Defendant
Kevin Casey in his official capacity as Director of Developmental Disabilities of the Illinois Department of Human Resources

represented by Thomas A. Ioppolo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura Marie Ranum (See above for address) TERMINATED: 03/25/2015 ATTORNEY TO BE NOTICED

Marni M. Malowitz (See above for address) TERMINATED: 07/22/2014

Sunil Shashikant Bhave (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michelle R.B. Saddler in her official capacity as Secretary of the Illinois Department of Human Services

represented by Thomas A. Ioppolo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura Marie Ranum (See above for address)

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 10 of 44

TERMINATED: 03/25/2015 ATTORNEY TO BE NOTICED

Marni M. Malowitz (See above for address) TERMINATED: 07/22/2014

Sunil Shashikant Bhave (See above for address) ATTORNEY TO BE NOTICED

Defendant
Patrick Quinn as Governor of the State of Illinois TERMINATED: 10/08/2013

represented by Thomas A. Ioppolo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura Marie Ranum (See above for address) TERMINATED: 03/25/2015 ATTORNEY TO BE NOTICED

Marni M. Malowitz (See above for address) TERMINATED: 07/22/2014

Defendant Community Resource Alliance

represented by Patrick J Boyle Gunn And Gunn 11901 Olive Blvd Ste 312 Po Box 419002 Creve Coeur, MO 63141 (314) 432−4550 Email: pjb@gunn−gunn.com ATTORNEY TO BE NOTICED

Amicus
Equip for Equality, Inc. 20 N. Michigan Ave. Chicago, IL 60602 773−341−0022

V. Movant United States of America

Date Filed 02/19/2013
02/19/2013

# Docket Text
1 COMPLAINT filed by DAVID IACONO−HARRIS, ELIZABETH GERSBACHER, MURRAY PARENTS ASSOCIATION, INC., ILLINOIS LEAGUE OF ADVOCATES FOR THE DEVELOPMENTALLY DISABLED, GAIL K. MYERS, STAN KRAINSKI, RITA WINKELER, ROBYN PANNIER, ROBERT POKORNY, DR., BARBARA COZZONE−ACHINO, KAREN KELLY, JEANNIE L. WILLIAMS, LAUREN STENGLER; Jury Demand. Filing fee $ 350, receipt number 0752−8060703. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Sherwin, Judith) (Entered: 02/19/2013)
2 CIVIL Cover Sheet (Sherwin, Judith) (Entered: 02/19/2013)

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 11 of 44

02/19/2013 02/19/2013
02/19/2013
02/19/2013
02/20/2013 02/22/2013
02/22/2013 02/27/2013 02/27/2013
02/27/2013 03/04/2013 03/04/2013

CASE ASSIGNED to the Honorable Marvin E. Aspen. Designated as Magistrate Judge the Honorable Sidney I. Schenkier. (nsf, ) (Entered: 02/19/2013)
3 ATTORNEY Appearance for Plaintiffs BARBARA COZZONE−ACHINO, ELIZABETH GERSBACHER, DAVID IACONO−HARRIS, ILLINOIS LEAGUE OF ADVOCATES FOR THE DEVELOPMENTALLY DISABLED, KAREN KELLY, STAN KRAINSKI, MURRAY PARENTS ASSOCIATION, INC., GAIL K. MYERS, ROBYN PANNIER, ROBERT POKORNY, DR., LAUREN STENGLER, JEANNIE L. WILLIAMS, RITA WINKELER by Judith Schwartz Sherwin (Sherwin, Judith) (Entered: 02/19/2013)
4 ATTORNEY Appearance for Plaintiffs BARBARA COZZONE−ACHINO, ELIZABETH GERSBACHER, DAVID IACONO−HARRIS, ILLINOIS LEAGUE OF ADVOCATES FOR THE DEVELOPMENTALLY DISABLED, KAREN KELLY, STAN KRAINSKI, MURRAY PARENTS ASSOCIATION, INC., GAIL K. MYERS, ROBYN PANNIER, ROBERT POKORNY, DR., LAUREN STENGLER, JEANNIE L. WILLIAMS, RITA WINKELER by Sherri L. Thornton−Pierce (Thornton−Pierce, Sherri) (Entered: 02/19/2013)
5 ATTORNEY Appearance for Plaintiffs BARBARA COZZONE−ACHINO, ELIZABETH GERSBACHER, DAVID IACONO−HARRIS, ILLINOIS LEAGUE OF ADVOCATES FOR THE DEVELOPMENTALLY DISABLED, KAREN KELLY, STAN KRAINSKI, MURRAY PARENTS ASSOCIATION, INC., GAIL K. MYERS, ROBYN PANNIER, ROBERT POKORNY, DR., LAUREN STENGLER, JEANNIE L. WILLIAMS, RITA WINKELER by Sarah R Farrell (Farrell, Sarah) (Entered: 02/19/2013)
SUMMONS Issued as to Defendants COMMUNITY RESOURCE ALLIANCE, Kevin Casey, Illinois Department of Human Services (cft, ) (Entered: 02/20/2013)
6 ATTORNEY Appearance for Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler by Kathleen Fitzgerald Howlett (Howlett, Kathleen) (Entered: 02/22/2013)
7 MINUTE entry before Honorable Marvin E. Aspen: Status hearing set for 4/4/2013 at 10:30 AM., in Courtroom 2525. The plaintiffs are to nofity the defendants of status date.Judicial staff mailed notice (gl, ) (Entered: 02/22/2013)
8 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for preliminary injunction (Sherwin, Judith) (Entered: 02/27/2013)
9 MEMORANDUM by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler in support of motion for preliminary injunction, 8 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Sherwin, Judith) (Entered: 02/27/2013)
10 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for preliminary injunction, 8 before Honorable Marvin E. Aspen on 3/5/2013 at 10:30 AM. (Attachments: # 1 Certificate of Service)(Sherwin, Judith) (Entered: 02/27/2013)
11 MINUTE entry before Honorable Marvin E. Aspen:Defendants are to respond to Plaintiffs' motion for preliminary injunction, 8 on or before 3/25/2013. Plaintiffs to reply by 4/4/2013. The status hearing scheduled for 4/4/13 is stricken and reset to 5/9/2013 at 10:30 AM. The motion hearing scheduled for 3/5/13 is stricken. Judicial staff mailed notice (gl, ) (Entered: 03/04/2013)
12 ATTORNEY Appearance for Defendants Kevin Casey, Illinois Department of Human Services by Thomas A. Ioppolo (Ioppolo, Thomas) (Entered: 03/04/2013)

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03/04/2013 03/04/2013
03/04/2013 03/04/2013
03/04/2013
03/04/2013
03/04/2013 03/08/2013 03/11/2013 03/12/2013 03/12/2013 03/12/2013 03/13/2013
03/14/2013 03/14/2013 03/14/2013

13 ATTORNEY Appearance for Defendants Kevin Casey, Illinois Department of Human Services by Marni M. Malowitz (Malowitz, Marni) (Entered: 03/04/2013)
14 First AMENDED complaint by David Iacono−Harris, Elizabeth Gersbacher, Murray Parents Association, Inc., Illinois League of Advocates for the Developmentally Disabled, Gail K. Myers, Stan Krainiski, Rita Winkeler, Robyn Pannier, Robert Pokorny, Barbara Cozzone−Achino, Karen Kelly, Jeannie L. Williams, Lauren Stengler against All Defendants (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Sherwin, Judith) (Entered: 03/04/2013)
15 CERTIFICATE of Service by Judith Schwartz Sherwin on behalf of All Plaintiffs regarding amended complaint, 14 (Sherwin, Judith) (Entered: 03/04/2013)
16 SUMMONS Returned Executed by David Iacono−Harris, Elizabeth Gersbacher, Murray Parents Association, Inc., Illinois League of Advocates for the Developmentally Disabled, Gail K. Myers, Stan Krainiski, Rita Winkeler, Robyn Pannier, Robert Pokorny, Barbara Cozzone−Achino, Karen Kelly, Jeannie L. Williams, Lauren Stengler as to Illinois Department of Human Services on 2/22/2013, answer due 3/15/2013. (Sherwin, Judith) (Entered: 03/04/2013)
17 SUMMONS Returned Executed by David Iacono−Harris, Elizabeth Gersbacher, Murray Parents Association, Inc., Illinois League of Advocates for the Developmentally Disabled, Gail K. Myers, Stan Krainiski, Rita Winkeler, Robyn Pannier, Robert Pokorny, Barbara Cozzone−Achino, Karen Kelly, Jeannie L. Williams, Lauren Stengler as to Kevin Casey on 2/22/2013, answer due 3/15/2013. (Sherwin, Judith) (Entered: 03/04/2013)
18 SUMMONS Returned Executed by David Iacono−Harris, Elizabeth Gersbacher, Murray Parents Association, Inc., Illinois League of Advocates for the Developmentally Disabled, Gail K. Myers, Stan Krainiski, Rita Winkeler, Robyn Pannier, Robert Pokorny, Barbara Cozzone−Achino, Karen Kelly, Jeannie L. Williams, Lauren Stengler as to Community Resource Alliance on 2/21/2013, answer due 3/14/2013. (Sherwin, Judith) (Entered: 03/04/2013)
SUMMONS Issued as to Defendant Michelle R.B. Saddler (cft, ) (Entered: 03/05/2013)
19 ATTORNEY Appearance for Defendants Kevin Casey, Illinois Department of Human Services by Laura Marie Rawski (Rawski, Laura) (Entered: 03/08/2013)
20 ATTORNEY Appearance for Defendant Michelle R.B. Saddler by Thomas A. Ioppolo (Ioppolo, Thomas) (Entered: 03/11/2013)
21 ATTORNEY Appearance for Defendant Michelle R.B. Saddler by Marni M. Malowitz (Malowitz, Marni) (Entered: 03/12/2013)
22 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for extension of time to file answer regarding amended complaint, 14 UNOPPOSED (Malowitz, Marni) (Entered: 03/12/2013)
23 NOTICE of Motion by Marni M. Malowitz for presentment of motion for extension of time to file answer, motion for relief 22 before Honorable Marvin E. Aspen on 3/14/2013 at 10:30 AM. (Malowitz, Marni) (Entered: 03/12/2013)
24 MINUTE entry before Honorable Marvin E. Aspen: The Defendants unopposed Motion for extension of time to answer 22 or otherwise plead to plaintiffs amended complaint is granted. The time for defendants to answer or otherwise plead to plaintiffs complaint is extended for twenty days after the Court has ruled on the pending motion for a preliminary injunction. The motion hearing scheduled for 3/14/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 03/13/2013)
25 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−8141488. (Boyle, Patrick) (Entered: 03/14/2013)
26 ATTORNEY Appearance for Defendant Community Resource Alliance by Patrick J Boyle (Boyle, Patrick) (Entered: 03/14/2013)
27 MOTION by Defendant Community Resource Alliance for extension of time to file answer regarding complaint, 1 (Boyle, Patrick) (Entered: 03/14/2013)

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03/18/2013 03/19/2013 03/19/2013 03/21/2013
03/21/2013 03/22/2013 03/22/2013 03/22/2013
03/27/2013

28 SUMMONS Returned Executed by David Iacono−Harris, Elizabeth Gersbacher, Murray Parents Association, Inc., Illinois League of Advocates for the Developmentally Disabled, Gail K. Myers, Stan Krainiski, Rita Winkeler, Robyn Pannier, Robert Pokorny, Barbara Cozzone−Achino, Karen Kelly, Jeannie L. Williams, Lauren Stengler as to Michelle R.B. Saddler on 3/6/2013, answer due 3/27/2013. (Sherwin, Judith) (Entered: 03/18/2013)
29 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for leave to file excess pages , MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for extension of time to file response/reply as to motion for preliminary injunction, 8 (Malowitz, Marni) (Entered: 03/19/2013)
30 NOTICE of Motion by Marni M. Malowitz for presentment of motion for leave to file excess pages,, motion for extension of time to file response/reply,, motion for relief, 29 before Honorable Marvin E. Aspen on 3/21/2013 at 10:30 AM. (Malowitz, Marni) (Entered: 03/19/2013)
31 MINUTE entry before Honorable Marvin E. Aspen:Defendants' Illinois Department of Human Services, Kevin Casey and Michael R. B. Saddler, Motion (29) for leave to file their response to plaintiff's motion for preliminary injunction not to exceed twenty−three pages, and for an extension of time, up to and including 4/3/13 to file their response to plaintiffs' motion for preliminary injunction is granted. Plaintiffs are given up to and including 4/15/13 to reply. The status hearing set for 5/9/13 is stricken and reset to 5/30/13 at 10:30 a.m. The motion hearing scheduled for 3/21/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 03/21/2013)
32 MINUTE entry before Honorable Marvin E. Aspen: The minute entry entered on 3/21/13 (31), regarding Defendants' motion for leave to file in excess and for extension of time to respond to plaintiffs' motion for preliminary injunction, having been entered in error, the minute entry is vacated. Defendants' motion (29) for leave to file brief in excess of page limitation and for extension of time is enterd and continued to 3/28/13 at 10:30 a.m. Judicial staff mailed notice (gl, ) (Entered: 03/21/2013)
33 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for leave to file Second Amended Complaint (Attachments: # 1 Second Amended Complaint)(Sherwin, Judith) (Entered: 03/22/2013)
34 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for leave to file, 33 before Honorable Marvin E. Aspen on 3/28/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 03/22/2013)
35 OBJECTIONS by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler to MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for leave to file excess pages MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for extension of time to file response/reply as to motion for preliminary injunction, 8 29 Plaintiffs' Opposition to Defendants' Motion for Extension of Time to Respond to Motion for Preliminary Injunction (Sherwin, Judith) (Entered: 03/22/2013)
36 MINUTE entry before Honorable Marvin E. Aspen: The minute entry of 3/21/13 (31) is reinstate and will stand. Defendants' Illinois Department of Human Services, Kevin Casey and Michael R. B. Saddler, motion (29) for leave to file their response to plaintiff's motion for preliminary injunction not to exceed twenty−three pages, and for an extension of time, up to and including 4/3/13 to file their response to plaintiff's motion for preliminary injunction is granted. Plaintiffs are given up to and including 4/15/13 to reply. The status haring set for 5/9/13 is stricken and reset to 5/30/13 at 10:30 a.m. The motion hearing scheduled for 3/28/13 is stricken. Judicial staff mailed notice (gl, ) (Entered: 03/27/2013)

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 14 of 44

03/27/2013 04/01/2013 04/03/2013 04/03/2013 04/08/2013 04/15/2013 04/15/2013
04/15/2013 04/18/2013 04/18/2013 04/22/2013 04/24/2013
04/30/2013

37 MINUTE entry before Honorable Marvin E. Aspen:Defendants are to respond to Plaintiffs' motion for leave to file, 33 amended complaint by 4/1/2013. Plaintiffs to reply by 4/4/2013. The motion hearing set for 3/28/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 03/27/2013)
38 RESPONSE by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler to MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Po 33 (Ioppolo, Thomas) (Entered: 04/01/2013)
39 ATTORNEY Appearance for Defendant Michelle R.B. Saddler by Laura Marie Rawski (Rawski, Laura) (Entered: 04/03/2013)
40 MEMORANDUM by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler in Opposition to motion for preliminary injunction, 8 (Attachments: # 1 Exhibit Index, # 2 Exhibit A, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit B, # 7 Certificate of Service)(Rawski, Laura) (Entered: 04/03/2013)
41 RESPONSE by Community Resource Alliancein Opposition to MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert P 8 (Boyle, Patrick) (Entered: 04/08/2013)
42 STATEMENT by United States of America Statement of Interest (Johnson, Patrick) (Entered: 04/15/2013)
43 REPLY by David Iacono−Harris, Illinois Department of Human Services, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly to memorandum in opposition to motion, 40 , MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert P 8 , memorandum in support of motion, 9 For Preliminary Injunction (Attachments: # 1 Exhibit A−K)(Sherwin, Judith) (Entered: 04/15/2013)
44 ATTORNEY Appearance for Plaintiffs Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly by Daniel Reza Saeedi (Saeedi, Daniel) (Entered: 04/15/2013)
45 MOTION by Plaintiffs David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for leave to file Response to U.S.A.'s Statement of Interest (Attachments: # 1 Exhibit A)(Sherwin, Judith) (Entered: 04/18/2013)
46 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for leave to file, 45 before Honorable Marvin E. Aspen on 4/25/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 04/18/2013)
47 MINUTE entry before Honorable Marvin E. Aspen:Plaintiffs' Motion for leave to file 45 response to the United States of America's statement of interest is granted. Plaintiffs response to the United States of America's statement of interest by 5/6/13. The response is not to exceed 10 pages. The motion hearing set for 4/25/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 04/22/2013)
48 RESPONSE by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler, Movant United States of America to statement 42 of Interest (Attachments: # 1 Exhibit 1)(Sherwin, Judith) (Entered: 04/24/2013)
49 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. SaddlerSubstitute Exhibit (Attachments: # 1 Exhibit 1)(Malowitz, Marni) (Entered: 04/30/2013)

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04/30/2013 05/03/2013 05/09/2013 05/13/2013 05/13/2013 05/13/2013
05/13/2013 05/15/2013
05/17/2013 05/21/2013
05/21/2013 05/21/2013
05/21/2013
05/22/2013

50 NOTICE of Motion by Marni M. Malowitz for presentment of motion for miscellaneous relief 49 before Honorable Marvin E. Aspen on 5/7/2013 at 10:30 AM. (Malowitz, Marni) (Entered: 04/30/2013)
51 MINUTE entry before Honorable Marvin E. Aspen:Defendants' Agreed Motion 49 to substitute the document attached as Exhibit 1 to this motion in place of the exhibit filed as Docket #40−3, is granted. The motion hearing set for 5/7/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 05/03/2013)
52 MINUTE entry before Honorable Marvin E. Aspen:Plaintiffs' Motion for leave to file 33 second amended complaint is granted. Judicial staff mailed notice (gl, ) (Entered: 05/09/2013)
53 MINUTE entry before Honorable Marvin E. Aspen:The status/ruling date of 5/30/13 is stricken and reset to 6/27/2013 at 10:30 AM. Judicial staff mailed notice (gl, ) (Entered: 05/13/2013)
54 MINUTE entry before Honorable Marvin E. Aspen:Application of Patrick J. Boyle to appear pro hac vice 25 on behalf of defendant Community Resource Associates is granted. ; Motions terminated: Judicial staff mailed notice (gl, ) (Entered: 05/13/2013)
55 Second AMENDED complaint by David Iacono−Harris, Elizabeth Gersbacher, Murray Parents Association, Inc., Illinois League of Advocates for the Developmentally Disabled, Gail K. Myers, Stan Krainiski, Rita Winkeler, Robyn Pannier, Robert Pokorny, Barbara Cozzone−Achino, Karen Kelly, Jeannie L. Williams, Lauren Stengler against All Defendants (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Sherwin, Judith) (Entered: 05/13/2013)
SUMMONS Issued as to Defendant Patrick Quinn. (ao,) (Entered: 05/13/2013)
56 SUMMONS Returned Executed by David Iacono−Harris, Elizabeth Gersbacher, Murray Parents Association, Inc., Illinois League of Advocates for the Developmentally Disabled, Gail K. Myers, Stan Krainiski, Rita Winkeler, Robyn Pannier, Robert Pokorny, Karen Kelly, Jeannie L. Williams, Lauren Stengler as to Patrick Quinn on 5/14/2013, answer due 6/4/2013. (Sherwin, Judith) (Entered: 05/15/2013)
57 ATTORNEY Appearance for Defendant Patrick Quinn by Marni M. Malowitz (Malowitz, Marni) (Entered: 05/17/2013)
58 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for temporary restraining order (Sherwin, Judith) (Entered: 05/21/2013)
59 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for temporary restraining order, 58 before Honorable Ruben Castillo on 5/23/2013 at 09:45 AM. (Sherwin, Judith) (Entered: 05/21/2013)
60 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for leave to file Memorandum of Law in Support of Motion for TRO in excess of 15 Pages (Sherwin, Judith) (Entered: 05/21/2013)
61 MEMORANDUM by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler in support of motion for leave to file, 60 , motion for temporary restraining order, 58 (Attachments: # 1 Exhibit A − I, # 2 Exhibit J−R)(Sherwin, Judith) (Entered: 05/21/2013)
62 RESPONSE by Kevin Casey, Illinois Department of Human Services, Patrick Quinn, Michelle R.B. Saddlerin Opposition to MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 16 of 44

05/22/2013 05/23/2013
05/23/2013 05/24/2013 05/24/2013 05/24/2013
05/28/2013 05/28/2013 05/28/2013
05/29/2013 05/29/2013 05/29/2013

Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert P 58 (Malowitz, Marni) (Entered: 05/22/2013)
63 ATTORNEY Appearance for Defendant Patrick Quinn by Thomas A. Ioppolo (Ioppolo, Thomas) (Entered: 05/22/2013)
64 MINUTE entry before Honorable Ruben Castillo:Motion hearing held on 5/23/2013. Plaintiffs' motion for leave to file memorandum of law in support of their motion for a temporary restraining order in excess of fifteen pages 60 is granted. Plaintiffs' emergency motion for Temporary Restraining Order 58 is entered and continued to 5/30/2013 at 10:30 a.m. before Judge Marvin E. Aspen. The defendants have agreed not to move any potential class members from the Murray Developmental Center, except the one resident that is returning home to his mother's residence, before the 5/30/2013 hearing before Judge Aspen.Mailed notice (rao, ) (Entered: 05/23/2013)
65 MINUTE entry before Honorable Marvin E. Aspen:The defendants' response to the Plaintiffs' motion for temporary restraining order 58 is due by the end of the day on 5/24/2013. Plaintiffs' reply brief will be due by the end of the day on 5/28/2013.Mailed notice (rao, ) (Entered: 05/23/2013)
66 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Patrick Quinn, Michelle R.B. Saddler for extension of time to file answer regarding amended complaint, 55 (Malowitz, Marni) (Entered: 05/24/2013)
67 NOTICE of Motion by Marni M. Malowitz for presentment of motion for extension of time to file answer, motion for relief 66 before Honorable Marvin E. Aspen on 5/30/2013 at 10:30 AM. (Malowitz, Marni) (Entered: 05/24/2013)
68 RESPONSE by Kevin Casey, Illinois Department of Human Services, Patrick Quinn, Michelle R.B. Saddlerin Opposition to MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert P 58 Supplemental (Attachments: # 1 Exhibit Index, A−D)(Malowitz, Marni) (Entered: 05/24/2013)
69 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Patrick Quinn, Michelle R.B. SaddlerSubstitute Exhibits (Attachments: # 1 Exhibit Index, 1−2)(Malowitz, Marni) (Entered: 05/28/2013)
70 NOTICE of Motion by Marni M. Malowitz for presentment of motion for miscellaneous relief 69 before Honorable Marvin E. Aspen on 5/30/2013 at 10:30 AM. (Malowitz, Marni) (Entered: 05/28/2013)
71 REPLY by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler to memorandum in support of motion, 61 , MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert P 58 In Support of Motion for TRO (Attachments: # 1 Exhibit A and B)(Sherwin, Judith) (Entered: 05/28/2013)
72 RESPONSE by Community Resource Alliancein Opposition to MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert P 58 (Boyle, Patrick) (Entered: 05/29/2013)
73 RESPONSE by Community Resource Alliance to MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert P 58 (Boyle, Patrick) (Entered: 05/29/2013)
74 MEMORANDUM motion for extension of time to file answer, motion for relief 66 by Community Resource Alliance (Boyle, Patrick) (Entered: 05/29/2013)

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 17 of 44

05/30/2013 05/30/2013
05/31/2013 05/31/2013

75 ATTORNEY Appearance for Defendant Patrick Quinn by Laura Marie Rawski (Rawski, Laura) (Entered: 05/30/2013)
76 MINUTE entry before Honorable Marvin E. Aspen: Motion hearing held. Defendants' motion for extension of time to answer or otherwise plead 66 is granted. Defendants' motion to substitute exhibits 69 is granted. Plaintiffs' emergency motion for temporary restraining order 58 is granted. By July 3, 2013, the parties shall file a written agreed statement of facts and shall submit the direct testimony of witnesses on any contested matters by affidavit. By July 3, 2013, the parties shall also informthe court of potential dates, amenable to both parties, for the hearing on the preliminary injunction motion. By July 10, 2013, the parties shall identify which witnesses they wish to cross−examine. Affiants designated for cross−examination must be present for the hearing. Plaintiffs must file a proposed temporary restraining order no later than May 31, 2013. Temporary Restraining Order hereby entered. Mailed notice (meg, ) (Entered: 05/31/2013)
77 POSITION Statement by Kevin Casey, Illinois Department of Human Services, Patrick Quinn, Michelle R.B. Saddler (Malowitz, Marni) (Entered: 05/31/2013)
78 TRANSCRIPT OF PROCEEDINGS held on 5/23/13 before the Honorable Ruben Castillo. Court Reporter Contact Information: Kathleen M. Fennell, Kathleen_Fennell@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

05/31/2013
06/05/2013 06/05/2013 06/05/2013 06/05/2013 06/06/2013
06/07/2013

Redaction Request due 6/21/2013. Redacted Transcript Deadline set for 7/1/2013. Release of Transcript Restriction set for 8/29/2013. (Fennell, Kathleen) (Entered: 05/31/2013)
79 RESPONSE by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler to statement 77 Position Statement (Sherwin, Judith) (Entered: 05/31/2013)
80 MINUTE entry before Honorable Marvin E. Aspen: The court orders lead counsel to appear for an in−chambers conference on Monday, 6/10/2013 at 2:00 p.m. regarding the issues raised in Defendant's position statement on the temporary restraining order.Judicial staff mailed notice (gl, ) (Entered: 06/05/2013)
81 ADOPTION of Defendants' Supplemental Opposition to Plaintiff's Emergency Motion for Temporary Restraining Order by Defendant Community Resource Alliance. (et, ) (Entered: 06/06/2013)
82 ADOPTION of Defendants' Preliminary Opposition to Plaintiff's Emergency Motion for Temporary Restraining Order by Defendant Community Resource Alliance. (et, ) (Entered: 06/06/2013)
83 DEFENDANT Community Resource Associates, Inc.'s Adoption of Defendants' Motion for Extension of Time to Answer or Otherwise Plead. (et, ) (Entered: 06/06/2013)
84 ATTORNEY Appearance for Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler by Gabriel Reilly−Bates (Reilly−Bates, Gabriel) (Entered: 06/06/2013)
85 ATTORNEY Appearance for Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L.

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 18 of 44

06/10/2013 06/10/2013 06/11/2013 06/12/2013 06/12/2013 06/18/2013 06/18/2013 06/18/2013
06/19/2013 06/19/2013 06/20/2013 06/20/2013

Williams, Rita Winkeler by Megan Kelly McGrath (McGrath, Megan) (Entered: 06/07/2013)
86 MEMORANDUM statement 77 by Community Resource Alliance Adopting Defendants' Position Statement (Boyle, Patrick) (Entered: 06/10/2013)
87 MINUTE entry before Honorable Marvin E. Aspen:In chambers Status hearing held on 6/10/2013, and continued to 6/11/2013 at 11:00 AM.Judicial staff mailed notice (gl, ) (Entered: 06/10/2013)
88 MINUTE entry before Honorable Marvin E. Aspen:In chambers Status hearing held on 6/11/2013.Judicial staff mailed notice (gl, ) (Entered: 06/11/2013)
89 MINUTE entry before Honorable Marvin E. Aspen: Enter Temporary Restraining Order. Preliminary Injunction hearing is set for 7/23/2013 at 10:00 AM., in Courtroom 2525. (For further details, see Order in separate docket entry). Judicial staff mailed notice (gl, ) (Entered: 06/12/2013)
90 TEMPORARY Restraining Order. Signed by the Honorable Marvin E. Aspen on 6/12/2013:Judicial staff mailed notice(gl, ) (Entered: 06/12/2013)
91 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for protective order (Attachments: # 1 Exhibit Index, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(Rawski, Laura) (Entered: 06/18/2013)
92 NOTICE of Motion by Laura Marie Rawski for presentment of motion for protective order, 91 before Honorable Marvin E. Aspen on 6/20/2013 at 10:30 AM. (Rawski, Laura) (Entered: 06/18/2013)
93 TRANSCRIPT OF PROCEEDINGS held on 5/30/13 before the Honorable Marvin E. Aspen. Court Reporter Contact Information: Colette M. Kuemmeth (312)554−8931 colette_kuemmeth@ilnd.uscourts.gov.
IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.
Redaction Request due 7/9/2013. Redacted Transcript Deadline set for 7/19/2013. Release of Transcript Restriction set for 9/16/2013. (Kuemmeth, Colette) (Entered: 06/18/2013)
94 Adoption of Motion for Protective Order by Community Resource Alliance (Boyle, Patrick) (Entered: 06/19/2013)
95 MINUTE entry before Honorable Marvin E. Aspen:Plaintiffs are to respond to defendants' motion for protective order 91 by 6/25/2013. Defendants to reply by 6/28/2013. The motion hearing scheduled for 6/20/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 06/19/2013)
96 MINUTE entry before Honorable Marvin E. Aspen: The status/ruling date of 6/27/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 06/20/2013)
97 MINUTE entry before Honorable Marvin E. Aspen: Enter Memorandum Opinion and Order: We hold that our jurisdiction in this case extends only to the claims Plaintiffs brought on behalf of the current and former residents of the Murray and Jacksonville SODCs, related to their allegedly harmful transfers out of those facilities. We dismiss without prejudice all of Plaintiffs' claims premised on the future closure of other SODCs in Illinois. The evidence of the parties presented at the July 23, 2013 hearing on the preliminary injunction motion shall be confined to those issues within our subject matter jurisdiction and as set forth in this holding. It is so ordered. (For further details, see Memorandum Opinion and Order in separate docket entry). Judicial staff mailed notice (gl, ) (Entered: 06/20/2013)

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 19 of 44

06/20/2013 06/21/2013 06/25/2013 06/25/2013 06/25/2013 06/25/2013
06/25/2013 06/25/2013
06/25/2013 06/25/2013
06/25/2013 06/26/2013
06/26/2013
06/28/2013

98 MEMORANDUM Opinion and Order. Signed by the Honorable Marvin E. Aspen on 6/20/2013:Judicial staff mailed notice(gl, ) (Entered: 06/20/2013)
99 CERTIFICATE Certificate of Service of Answer of Defedant CRA to Plaintiffs' First Set of Interrogatories and Defendant CRa's Response to Notice of Rule 30b6 Deposition (Boyle, Patrick) (Entered: 06/21/2013)
100 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Patrick Quinn, Michelle R.B. Saddler For Entry of Confidentiality Order (Attachments: # 1 Exhibit A−B)(Ioppolo, Thomas) (Entered: 06/25/2013)
101 NOTICE of Motion by Thomas A. Ioppolo for presentment of motion for miscellaneous relief 100 before Honorable Marvin E. Aspen on 6/27/2013 at 10:30 AM. (Ioppolo, Thomas) (Entered: 06/25/2013)
102 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Patrick Quinn, Michelle R.B. Saddler to clarify Order of June 20, 2013 (Ioppolo, Thomas) (Entered: 06/25/2013)
103 RESPONSE by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler to MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for protective order 91 (Sherwin, Judith) (Entered: 06/25/2013)
104 NOTICE of Motion by Thomas A. Ioppolo for presentment of motion to clarify 102 before Honorable Marvin E. Aspen on 6/27/2013 at 10:30 AM. (Ioppolo, Thomas) (Entered: 06/25/2013)
105 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkelerfor Clarification of the Temporary Restraining Order Entered on June 12, 2013, and For Ruling on Disputed Discovery Issues (Attachments: # 1 Exhibit A−G)(Sherwin, Judith) (Entered: 06/25/2013)
106 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for miscellaneous relief, 105 before Honorable Marvin E. Aspen on 6/27/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 06/25/2013)
107 EXHIBIT by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler AMENDED EXHIBIT A (PROPOSED CONFIDENTIALITY ORDER) regarding MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Patrick Quinn, Michelle R.B. Saddler For Entry of Confidentiality Order 100 (Bhave, Sunil) (Entered: 06/25/2013)
108 ATTORNEY Appearance for Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler by Sunil Shashikant Bhave (Bhave, Sunil) (Entered: 06/25/2013)
109 MINUTE entry before Honorable Marvin E. Aspen:Defendants' Motion 100 for entry of confidentiality order and Defendants' Motion to clarify 102 are both taken under advisement. Plaintiffs' Motion 105 for clarification of temporary restraining order is also taken under advisement. The motion hearings scheduled for 6/27/13 are stricken. Judicial staff mailed notice (gl, ) (Entered: 06/26/2013)
110 ATTORNEY Appearance for Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler by Barton James O'Brien (O'Brien, Barton) (Entered: 06/26/2013)
111 MINUTE entry before Honorable Marvin E. Aspen: Enter Memorandum Opinion and Order. [For Further Details See Separate Order.] Mailed notice (meg, ) (Entered: 06/28/2013)

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 20 of 44

06/28/2013 06/28/2013
07/01/2013 07/01/2013 07/01/2013
07/01/2013
07/01/2013 07/01/2013 07/02/2013 07/02/2013 07/02/2013 07/05/2013
07/08/2013
07/08/2013

112 MEMORANDUM Opinion and Order. Signed by the Honorable Marvin E. Aspen on 6/28/2013. Mailed notice(meg, ) (Entered: 06/28/2013)
113 REPLY by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler to response to motion, 103 , MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for protective order 91 (Attachments: # 1 Exhibit Karen Kelly Interrogatory Answers, # 2 Exhibit June 21 Correspondence Letter)(Bhave, Sunil) (Entered: 06/28/2013)
114 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for protective order AGREED (Attachments: # 1 Exhibit Proposed Agreed Confidentiality Order (Red Lined))(Bhave, Sunil) (Entered: 07/01/2013)
115 NOTICE of Motion by Sunil Shashikant Bhave for presentment of motion for protective order 114 before Honorable Marvin E. Aspen on 7/9/2013 at 10:30 AM. (Bhave, Sunil) (Entered: 07/01/2013)
116 MEMORANDUM by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler Memorandum of Law in Support of this Court's Jurisdiction for Protecting OSG Residents From Harm (Sherwin, Judith) (Entered: 07/01/2013)
117 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for leave to file a Sur−Reply (Attachments: # 1 Exhibit)(Sherwin, Judith) (Entered: 07/01/2013)
118 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for leave to file, 117 before Honorable Marvin E. Aspen on 7/9/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 07/01/2013)
122 EXECUTIVE COMMITTEE ORDER: Case referred to the Honorable Daniel G. Martin. Signed by Executive Committee on 7/1/2013.(vcf, ) (Entered: 07/03/2013)
119 MINUTE entry before Honorable Marvin E. Aspen:DHS Defendants' agreed Motion for entry of confidentiality order 114 is granted. Enter Agreed Confidentiality Order. (For further details, see Order in separate docket entry). The motion hearing scheduled for 7/9/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 07/02/2013)
120 Agreed Confidentiality ORDER. Signed by the Honorable Marvin E. Aspen on 7/2/2013:Judicial staff mailed notice(gl, ) (Entered: 07/02/2013)
121 REPLY by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler to memorandum, 116 (Ioppolo, Thomas) (Entered: 07/02/2013)
123 RESPONSE by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddlerin Opposition to MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Po 117 (Attachments: # 1 Exhibit A)(Rawski, Laura) (Entered: 07/05/2013)
124 MINUTE entry before Honorable Marvin E. Aspen: Defendants' motion for a protective order has been referred to Magistrate Judge Martin. Therefore, plaintiffs' motion for leave to file a sur−reply to the defendants motion for protective order should be renoticed before Magistrate Judge Martin for hearing. The motion hearing set for 7/9/13 before Judge Aspen is stricken. Judicial staff mailed notice (gl, ) (Entered: 07/08/2013)
125 MINUTE entry before Honorable Daniel G. Martin:Initial status hearing and Defendants' Motion For Protective Order 91 is set for 7/16/2013 at 10:00 a.m. Plaintiffs' Motion For Leave to File A Sur−reply 117 is granted. Out−of−town counsel may make arrangements with Judge Martins Courtroom Deputy (312−435−5833) to

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 21 of 44

07/11/2013
07/14/2013
07/14/2013 07/15/2013
07/15/2013
07/16/2013 07/17/2013 07/17/2013 07/18/2013 07/18/2013 07/18/2013 07/19/2013 07/23/2013

participate in the status hearing by telephone. Local counsel must be present personally. Counsel shall file and deliver a copy of an initial status report to chambers (Room 1356) at least three (3) business days before the initial status hearing. If counsel have recently prepared and filed a status report with the district court, the submission of a previously filed status report to Judge Martins chambers is sufficient. Counsel are expected to be familiar with and follow Judge Martins Case Management Procedures posted on his web page at www.ilnd.uscourts.gov.Mailed notice (lxs, ) (Entered: 07/08/2013)
126 Joint Status Report by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler (Sherwin, Judith) (Entered: 07/11/2013)
127 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for sanctions Emergency Motion for Sanctions (Attachments: # 1 Exhibit)(Thornton−Pierce, Sherri) (Entered: 07/14/2013)
128 NOTICE of Motion by Sherri L. Thornton−Pierce for presentment of motion for sanctions, 127 before Honorable Daniel G. Martin on 7/16/2013 at 10:00 AM. (Thornton−Pierce, Sherri) (Entered: 07/14/2013)
129 RESPONSE by Community Resource Alliance to MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert P 127 (Boyle, Patrick) (Entered: 07/15/2013)
130 RESPONSE by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddlerin Opposition to MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert P 127 (Attachments: # 1 Exhibit Index through Exhibit E, # 2 Exhibit F through L, # 3 Exhibit M through N)(Rawski, Laura) (Entered: 07/15/2013)
131 MINUTE entry before Honorable Daniel G. Martin:Motion hearing held on 7/16/2013 regarding Plaintiffs' motion for protective order 91 and motion for sanctions 127 . Detailed order to follow.Mailed notice(lxs, ) (Entered: 07/17/2013)
132 Enter Order Signed by the Honorable Daniel G. Martin on 7/17/2013.Mailed notice(lxs, ) (Entered: 07/17/2013)
133 STATUS Report re: discovery by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler (Malowitz, Marni) (Entered: 07/17/2013)
134 MINUTE entry before Honorable Marvin E. Aspen:Preliminary Injunction hearing set for 7/23/2013 at 10:30 a.m. is vacated. Status hearing set for 7/23/2013 at 10:30 a.m. to amend the discovery schedule, pursuant to Magistrate Judge Martins Order. Mailed notice (meg, ) (Entered: 07/18/2013)
135 MEMORANDUM Opinion and Order. Signed by the Honorable Marvin E. Aspen on 7/18/2013. Mailed notice(meg, ) (Entered: 07/18/2013)
136 ORDER Signed by the Honorable Daniel G. Martin on 7/18/2013.Mailed notice(lxs, ) (Entered: 07/19/2013)
137 MINUTE entry before Honorable Daniel G. Martin: All matters relating to the referral of this action having been concluded, the referral is closed and the case is returned to the assigned judge. Judge Honorable Marvin E. Aspen no longer referred to the case.Mailed notice (lxs, ) (Entered: 07/19/2013)
138 MINUTE entry before Honorable Marvin E. Aspen: Status hearing held on 7/23/13. As discussed at the status hearing today, the preliminary injunction hearing will begin

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 22 of 44

07/31/2013 08/01/2013 08/01/2013
08/01/2013 08/02/2013 08/04/2013

at 10 a.m. on Monday, September 9, 2013. Judicial staff mailed notice (gl, ) (Entered: 07/23/2013)
139 OBJECTIONS by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler to order on motion for protective order, terminate motions 132 (Malowitz, Marni) (Entered: 07/31/2013)
140 MINUTE entry before Honorable Marvin E. Aspen: Plaintiffs are to respond to DHS Defendants' objections to Magistrate Judge's Order requiring production of privileged information on or before 8/6/13. Defendants to reply by 8/12/13.Judicial staff mailed notice (gl, ) (Entered: 08/01/2013)
141 MOTION by Plaintiffs Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for extension of time to file Statement Ordered by Court (Sherwin, Judith) (Entered: 08/01/2013)
142 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for extension of time to file, 141 before Honorable Marvin E. Aspen on 8/6/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 08/01/2013)
143 MINUTE entry before Honorable Marvin E. Aspen:Plintiffs' agreed Motion for extension of time, until 8/7/13, to file 141 their statement is granted. The motion hearing scheduled for 8/6/13 is stricken. Judicial staff mailed notice (gl, ) (Entered: 08/02/2013)
144 TRANSCRIPT OF PROCEEDINGS held on 7/16/13 before the Honorable Daniel G. Martin. Court Reporter Contact Information: TRACEY D. McCULLOUGH, 312−435−5570, Tracey_McCullough@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

08/05/2013 08/05/2013 08/05/2013 08/05/2013 08/05/2013 08/05/2013

Redaction Request due 8/26/2013. Redacted Transcript Deadline set for 9/4/2013. Release of Transcript Restriction set for 11/4/2013. (Mccullough, Tracey) (Entered: 08/04/2013)
145 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler to compel Execution of HIPAA Authorization (Attachments: # 1 Exhibit Index, # 2 Exhibit A and B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Rawski, Laura) (Entered: 08/05/2013)
146 NOTICE of Motion by Laura Marie Rawski for presentment of motion to compel, 145 before Honorable Marvin E. Aspen on 8/8/2013 at 10:30 AM. (Rawski, Laura) (Entered: 08/05/2013)
147 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for leave to file Under Seal (Rawski, Laura) (Entered: 08/05/2013)
148 NOTICE of Motion by Laura Marie Rawski for presentment of motion for leave to file 147 before Honorable Marvin E. Aspen on 8/8/2013 at 10:30 AM. (Rawski, Laura) (Entered: 08/05/2013)
149 SEALED MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler Motion to Compel Execution of HIPAA Authorization (Attachments: # 1 Exhibit Index, # 2 Exhibit A and B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Rawski, Laura) (Entered: 08/05/2013)
150 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for leave to file Under Seal (Corrected Version) (Rawski, Laura) (Entered: 08/05/2013)

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 23 of 44

08/06/2013 08/06/2013 08/06/2013 08/06/2013 08/06/2013 08/06/2013
08/06/2013 08/06/2013 08/07/2013 08/07/2013
08/07/2013 08/09/2013 08/09/2013 08/09/2013
08/09/2013

151 MINUTE entry before Honorable Marvin E. Aspen: Defenants' motion to compel execution of HIPAA authorization (145) is referred to Magistrate Judge Martin. The motion hearing scheduled for 8/8/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 08/06/2013)
152 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable Daniel G. Martin for the purpose of holding proceedings related to: discovery motion −Defendants'motion to compel 145 ..(gl, )Judicial staff mailed notice. (Entered: 08/06/2013)
153 MINUTE entry before Honorable Daniel G. Martin:MOTION by Defendants to compel Execution of HIPAA Authorization 145 shall be briefed as follows: response is due by 8/20/2013; reply brief is due by 8/13/2013 Mailed notice (lxs, ) (Entered: 08/06/2013)
154 MINUTE entry before Honorable Daniel G. Martin:Minute entry docket no. 153 is amended as follows: Plaintiff's response to defendants motion to compel Execution of HIPAA Authorization 145 is due by 8/13/2013. No reply is necessary. Status hearing is set for 8/20/2013 at 10 a.m.Mailed notice (lxs, ) (Entered: 08/06/2013)
155 MINUTE entry before Honorable Marvin E. Aspen: Defendants' motion (150) for leave to file under seal an unredacted version of their motion and Exhibit E to their motion to compel is referred to Magistrate Judge Martin. The motion hearing hearing set for 8/8/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 08/06/2013)
156 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable Daniel G. Martin for the purpose of holding proceedings related to: discovery motion −Defendants' motion for leave to file 150 under seal unredacted version of motion to compel and Exhibit E of their motion to compel..(gl, )Judicial staff mailed notice. (Entered: 08/06/2013)
157 MINUTE entry before Honorable Daniel G. Martin:MOTION by Defendants for leave to file Under Seal (Corrected Version) 150 is granted.Mailed notice (lxs, ) (Entered: 08/06/2013)
158 RESPONSE by Plaintiff Illinois League of Advocates for the Developmentally Disabled to objections 139 (Attachments: # 1 Exhibit)(Sherwin, Judith) (Entered: 08/06/2013)
159 MEMORANDUM In Support of Plaintiffs' Legal Theory for Purposes of the Prelinminary Injunction Hearing (Sherwin, Judith) (Entered: 08/07/2013)
160 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for leave to file Plaintiffs' Brief in Support of Medicaid Issues (Attachments: # 1 Exhibit Brief In Support of Medicaid Issues)(Sherwin, Judith) (Entered: 08/07/2013)
161 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for leave to file, 160 before Honorable Marvin E. Aspen on 8/13/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 08/07/2013)
162 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Bhave, Sunil) (Entered: 08/09/2013)
163 NOTICE of Motion by Sunil Shashikant Bhave for presentment of Motion to Dismiss for Failure to State a Claim 162 before Honorable Marvin E. Aspen on 8/13/2013 at 10:30 AM. (Bhave, Sunil) (Entered: 08/09/2013)
164 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Patrick Quinn, Michelle R.B. Saddler for leave to file excess pages leave to file memorandum in support of motion to dismiss second amended complaint (Attachments: # 1 Exhibit Memorandum in Support of Motion to Dismiss Second Amended Complaint)(Bhave, Sunil) (Entered: 08/09/2013)
165 NOTICE of Motion by Sunil Shashikant Bhave for presentment of motion for leave to file excess pages, 164 before Honorable Marvin E. Aspen on 8/13/2013 at 10:30 AM. (Bhave, Sunil) (Entered: 08/09/2013)

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 24 of 44

08/12/2013
08/12/2013
08/12/2013 08/12/2013 08/12/2013 08/13/2013 08/13/2013
08/15/2013
08/15/2013 08/19/2013 08/19/2013 08/19/2013 08/20/2013

166 RESPONSE by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddlerin Opposition to MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Po 160 (Rawski, Laura) (Entered: 08/12/2013)
167 MINUTE entry before Honorable Marvin E. Aspen: Plaintiff's Motion (160) for Leave to File Supplemental Brief on Medicaid Issues for the Preliminary Injunction is denied. The proposed supplemental brief primarily describes three new claims neither alleged in the Second Amended Complaint, nor raised in the preliminary injunction motion or related briefing. The motion hearing scheduled for 8/13/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 08/12/2013)
168 MINUTE entry before Honorable Marvin E. Aspen:The plaintiffs are to respond to defendants' Motion to Dismiss the second amended complaint for Failure to State a Claim 162 on or before 8/23/2013. Defendants to reply by 8/28/2013. The motion hearing scheduled for 8/13/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 08/12/2013)
169 MINUTE entry before Honorable Marvin E. Aspen:Defendants' Motion (164) for leave to file memorandum in support of their motion to dismiss in excess of fifteen pages is granted. The motion hearing scheduled for 8/13/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 08/12/2013)
170 REPLY by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler in Support of their Objections to Magistrate Judge's Order Requiring Production of Privileged Information (Rawski, Laura) (Entered: 08/12/2013)
171 MOTION by Defendant Community Resource Alliance to dismiss Defendant CRA's Adoption of DHS Defendants' Motion To Dismiss The Second Amended Complaint and Memorandum In Support Of Their Motion To Dismiss (Boyle, Patrick) (Entered: 08/13/2013)
172 RESPONSE by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkelerin Opposition to MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler to compel Execution of HIPAA Authorization 145 (Sherwin, Judith) (Entered: 08/13/2013)
173 MINUTE entry before Honorable Marvin E. Aspen: Enter Memorandum Opinion and Orer: Presently before us is Defendants' objection to Magistrate Judge Martin's July 17, 2013 order (Order), denying in part their motion for a protective order. This objection is based on a misreading of the Order and is hereby overruled. (For further details, see Memorandum Opinion and Order in separate docket entry).Judicial staff mailed notice (gl, ) (Entered: 08/15/2013)
174 MEMORANDUM Opinion and Order Signed by the Honorable Marvin E. Aspen on 8/15/2013:Judicial staff mailed notice(gl, ) (Entered: 08/15/2013)
175 MINUTE entry before Honorable Daniel G. Martin:Defendant's Motion for leave to file under seal 147 is granted.Mailed notice (lxs, ) (Entered: 08/19/2013)
176 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for extension of time to Submit Privileged Documents for In Camera Review (Unopposed) (Rawski, Laura) (Entered: 08/19/2013)
177 NOTICE of Motion by Laura Marie Rawski for presentment of extension of time 176 before Honorable Marvin E. Aspen on 8/22/2013 at 10:30 AM. (Rawski, Laura) (Entered: 08/19/2013)
178 MINUTE entry before Honorable Marvin E. Aspen:DHS Defendants' unopposed Motion for extension of time 176 for DHS defendants to submit documents protected by the deliberative process privilege for in camera review to 8/21/13, is granted. The motion hearing scheduled for 8/22/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 08/20/2013)

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 25 of 44

08/20/2013 08/21/2013 08/21/2013 08/21/2013
08/21/2013 08/21/2013 08/21/2013 08/22/2013 08/22/2013 08/22/2013
08/23/2013 08/26/2013 08/26/2013 08/26/2013 08/27/2013

179 MINUTE entry before Honorable Daniel G. Martin:Motion hearing held on 8/20/2013 regarding defendants' motion to compel 145 . Written ruling to follow shortly.Mailed notice (lxs, ) (Entered: 08/20/2013)
180 ORDER Signed by the Honorable Daniel G. Martin on 8/21/2013.Mailed notice(lxs, ) (Entered: 08/21/2013)
181 AMENDED ORDER Signed by the Honorable Daniel G. Martin on 8/21/2013.Mailed notice(lxs, ) (Entered: 08/21/2013)
182 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for extension of time Unopposed Motion for Extension of Time to Respond to Defendant's Motion to Dismiss the Second Amended Complaint (Thornton−Pierce, Sherri) (Entered: 08/21/2013)
183 NOTICE of Motion by Sherri L. Thornton−Pierce for presentment of extension of time, 182 before Honorable Marvin E. Aspen on 8/27/2013 at 10:30 AM. (Thornton−Pierce, Sherri) (Entered: 08/21/2013)
184 Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddlerorder Memorndum in support of their claim of deliberative process privilege. (Entered: 08/21/2013)
185 SEALED DOCUMENT by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for in camera review (Attachments: # 1 part 2, # 2 part 3, # 3 part 4, # 4 part 5, # 5 part 6)(Bhave, Sunil) (Entered: 08/21/2013)
186 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Patrick Quinn for leave to file Substitute Exhibit in Support of Deliberative Process privilege Claim (Attachments: # 1 Exhibit Substituted Exhibit−−Signed Declaration of Kevin Casey)(Bhave, Sunil) (Entered: 08/22/2013)
187 NOTICE of Motion by Sunil Shashikant Bhave for presentment of motion for leave to file, 186 before Honorable Marvin E. Aspen on 8/27/2013 at 10:30 AM. (Bhave, Sunil) (Entered: 08/22/2013)
188 MINUTE entry before Honorable Marvin E. Aspen:Plaintiffs' unopposed Motion for extension of time 182 to respond to defendant's motion to dismiss the second amended complaint is granted. Plaintiffs time to respond to defendnat's motion to dismiss the second amended complaint is extended up to and including 8/27/13. Defendants to reply by 9/3/13. The motion hearing scheduled for 8/22/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 08/22/2013)
189 MINUTE entry before Honorable Marvin E. Aspen:DHS Defendants' Motion for leave to substitute 186 Exhibit A in place of Dk. 184 in support of memorandum in support of deliberative process privelege claim is granted. The motion hearing set for 8/27/13 is stricken. Judicial staff mailed notice (gl, ) (Entered: 08/23/2013)
190 ENTERED IN ERROR(Sherwin, Judith) (ym, ). (Docket Text Modified by Clerk's Office) (Entered: 08/26/2013)
191 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for leave to file, 190 before Honorable Marvin E. Aspen on 8/29/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 08/26/2013)
198 ORDER Signed by the Honorable Daniel G. Martin on 8/26/2013.Mailed notice(lxs, ) (Entered: 08/29/2013)
192 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for leave to file RESPONSE TO CLAIM OF DELIBERATIVE PROCESS PRIVILEGE INSTANTER (Attachments: # 1 Exhibit Exhibit 1)(Sherwin, Judith) (Entered: 08/27/2013)

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 26 of 44

08/27/2013 08/27/2013 08/27/2013
08/27/2013 08/28/2013 08/29/2013 09/01/2013
09/01/2013 09/02/2013 09/02/2013 09/02/2013
09/02/2013 09/03/2013

193 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for leave to file, 192 before Honorable Marvin E. Aspen on 8/29/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 08/27/2013)
194 MINUTE entry before Honorable Marvin E. Aspen:Plaintiffs' Motion for leave to file 192 response to claim of deliberative process privilege instanter is granted. Defendants to file reply to deliberative process privilege by 8/29/13. The motion hearing scheduled for 8/29/13 is stricken. Judicial staff mailed notice (gl, ) (Entered: 08/27/2013)
195 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for leave to file excess pages (Attachments: # 1 Exhibit Response)(Sherwin, Judith) (Entered: 08/27/2013)
196 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for leave to file excess pages, 195 before Honorable Marvin E. Aspen on 9/3/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 08/27/2013)
197 MINUTE entry before Honorable Marvin E. Aspen:Plaintiffs' Motion for leave to file their resonse to defendants' memorandum in support of their motion to dismiss the second amended complaint in excess page limit 195 is granted. The motion hearing scheduled for 9/3/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 08/28/2013)
199 REPLY by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler to motion for miscellaneous relief 184 in support of deliberative process privilege claim (Bhave, Sunil) (Entered: 08/29/2013)
200 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkelerfor Leave to Offer at Preliminary Injunction Hearing Live Testimony from Guardian Ad Litem (Attachments: # 1 Exhibit A − Clinton County Order)(Sherwin, Judith) (Entered: 09/01/2013)
201 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for miscellaneous relief, 200 before Honorable Marvin E. Aspen on 9/3/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 09/01/2013)
202 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler to strike Plaintiffs' Motion for Leave, or Alternatively, Response In Opposition (Rawski, Laura) (Entered: 09/02/2013)
203 NOTICE of Motion by Laura Marie Rawski for presentment of motion to strike 202 before Honorable Marvin E. Aspen on 9/5/2013 at 10:30 AM. (Rawski, Laura) (Entered: 09/02/2013)
204 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for leave to file a Sur−reply in Support of their Response to Defendants Claim of Deliberative Process Privilege Instanter (Attachments: # 1 Exhibit 1)(Sherwin, Judith) (Entered: 09/02/2013)
205 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for leave to file, 204 before Honorable Marvin E. Aspen on 9/5/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 09/02/2013)
206 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkelerto Address Discovery Abuses Emergency (Attachments: # 1 Exhibit Exhibit List, # 2 Exhibit A Sept. 1 email, # 3 Exhibit B Email exchange about privilege log)(Sherwin, Judith) (Entered: 09/03/2013)

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 27 of 44

09/03/2013 09/03/2013 09/03/2013 09/03/2013 09/03/2013 09/03/2013 09/03/2013 09/03/2013
09/03/2013 09/03/2013
09/03/2013 09/03/2013

207 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for miscellaneous relief,, 206 before Honorable Marvin E. Aspen on 9/5/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 09/03/2013)
208 MINUTE entry before Honorable Marvin E. Aspen: Plaintiffs emergency motion to address discovery obstacles is referred to Magistrate Judge Martin. The motion hearing scheduled for 9/5/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 09/03/2013)
209 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable Daniel G. Martin for the purpose of holding proceedings related to: discovery motion − Plaintiffs' emergency motion 206 to address discovery obstacles.gl, )Judicial staff mailed notice. (Entered: 09/03/2013)
210 MINUTE entry before Honorable Marvin E. Aspen:Plaintiffs' Motion for leave to file 204 sur−reply in support of response to claim of deliberative process privilege, instanter, is granted. The motion hearing scheduled for 9/5/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 09/03/2013)
211 MINUTE entry before Honorable Marvin E. Aspen:DHS defendants' Motion to strike 202 or alternative, response in opposition to plaintiffs' motion for leave to offer live testimony at the preliminary injunction hearing is denied. The motion hearing scheduled for 9/5/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 09/03/2013)
212 MINUTE entry before Honorable Marvin E. Aspen:Plaintiffs' Motion 200 for leave to offer at the preliminary injunction hearing live testimony of the court−appointed guardian ad litem in the Clinton County case is allowed in part. Half−hour of direect to supplement affidavit testimony. The motion hearing scheduled for 9/3/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 09/03/2013)
213 MINUTE entry before Honorable Daniel G. Martin: EMERGENCY MOTION by Plaintiffs to Address Discovery Abuses 206 is re−noticed before Judge Martin for 9/5/2013 at 10:30 a.m.Mailed notice (lxs, ) (Entered: 09/03/2013)
214 MINUTE entry before Honorable Marvin E. Aspen: Enter Memorandum Opinion and Order: The deliberative process privilege does not protect the documents identified by Defendants as categories 1 through 4, and categories 6 through 8. Defendants must provide these documents to Plaintiffs as soon as possible and, in any event, within three business hours from the issuance of this opinion. The documents included as category 5 need not be disclosed, as they are shielded by the privilege. It is so ordered. (For further details, see Memorandum Opinion and Order in separate docket entry). Judicial staff mailed notice (gl, ) (Entered: 09/03/2013)
215 MEMORANDUM Opinion and Order Signed by the Honorable Marvin E. Aspen on 9/3/2013:Judicial staff mailed notice(gl, ) (Entered: 09/03/2013)
216 MINUTE entry before Honorable Daniel G. Martin:Plaintiffs' emergency discovery motion 206 does not comply with L.R. 37.2. The motion is not stricken, but the parties are directed to meet and confer either in person or by telephone by the end of business on 9/4/2013. The Local Rule requires the parties to make every effort to resolve this dispute on their own. The parties are reminded that the requirements for a privilege log are well established and must be stated in sufficient detail to allow a court to decide whether the party asserting the privilege has done so adequately. See RBS Citizens, N.A. v. Husain, −− F.R.D. −−, 2013 WL 2457982, at *6 (N.D. Ill. June 4, 2013). Defendants shall be prepared to identify the specific privileges they are invoking for each item in the privilege log when the parties meet. If they are asserting the attorney−client privilege, as Plaintiffs suggest, Defendants are reminded that they must demonstrate how all the terms of that privilege apply to each document they seek to protect. Mailed notice (lxs, ) (Entered: 09/03/2013)
217 MINUTE entry before Honorable Marvin E. Aspen:The Preliminary Injunction hearing scheduled for Monday, 9/9/13 is stricken and reset to Tuesday, 10/1/2013 at 10:00 AM. Enter Order. (For further details, see Order in separate docket entry). Judicial staff mailed notice (gl, ) (Entered: 09/03/2013)
218 ORDER. Signed by the Honorable Marvin E. Aspen on 9/3/2013:Judicial staff mailed notice(gl, ) (Entered: 09/03/2013)

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 28 of 44

09/03/2013 09/03/2013 09/03/2013 09/04/2013 09/04/2013 09/12/2013 09/13/2013
09/17/2013
09/19/2013 09/19/2013 09/19/2013 09/19/2013

219 REPLY by Kevin Casey, Illinois Department of Human Services, Patrick Quinn, Michelle R.B. Saddler to MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 162 (Bhave, Sunil) (Entered: 09/03/2013)
220 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for extension of time to Hold Court−Ordered Meet and Confer (Rawski, Laura) (Entered: 09/03/2013)
221 NOTICE of Motion by Laura Marie Rawski for presentment of extension of time 220 before Honorable Daniel G. Martin on 9/10/2013 at 10:00 AM. (Rawski, Laura) (Entered: 09/03/2013)
222 MINUTE entry before Honorable Daniel G. Martin:MOTION by Defendants for extension of time to Hold Court−Ordered Meet and and Confer 220 is granted. No appearance is required on 9/10/2013.Mailed notice (lxs, ) (Entered: 09/04/2013)
223 MINUTE entry before Honorable Daniel G. Martin: Minute entry no. 222 is enhanced as follows: The parties shall meet and confer in person or by telephone by 9/11/2013. The hearing set for 9/5/2013 is stricken and reset for 9/12/2013 at 10:30 a.m.Mailed notice (lxs, ) (Entered: 09/04/2013)
224 MINUTE entry before Honorable Daniel G. Martin: Hearing on Plaintiff's emergency discovery motion 206 held and continued to 9/13/2013 at 10:00 a.m. The parties are directed to meet and confer today in order to further narrow the range of disputed items in the privilege log. Mailed notice (lxs, ) (Entered: 09/12/2013)
225 MINUTE entry before Honorable Daniel G. Martin: Status hearing held and continued to 9/24/2013 at 10:00 a.m. Plaintiffs indicated that they would identify a limited range of the revised privilege log for review by early next week. Defendants shall submit a copy of the revised privilege log to the Court after that identification takes place. Defendants should identify for the Court those portions selected by Plaintiffs. Defendants shall file their brief concerning the privilege issues discussed in open court by 9/19/2013. Defendants may submit a reasonable number of documents related to their brief for in camera review. Plaintiffs may file a reply by noon on 9/23/2013. Mailed notice. (rbf, ) (Entered: 09/13/2013)
226 ENTER ORDER: In preparation for the October 1, 2013 preliminary injunction hearing, the parties shall exchange their evidentiary direct examination affidavits on or before Monday, September 23, 2013. Any witnesses whose affidavit is submitted thereby shall be available for cross−examination and redirect at the hearing. The parties shall designate which opposing party'switnesses they will cross−examine on or before Friday, September 27, 2013. This order does not alter our prior order concerning the affidavit and live testimony of Stuart Freeman. Signed by the Honorable Marvin E. Aspen on 9/17/2013: Mailed notice (am) (Entered: 09/17/2013)
227 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita WinkelerSet Date for Submission of Agreed Facts (Sherwin, Judith) (Entered: 09/19/2013)
228 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for miscellaneous relief, 227 before Honorable Marvin E. Aspen on 9/24/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 09/19/2013)
229 MINUTE entry before Honorable Marvin E. Aspen:Plaintiffs' agreed Motion 227 to set date for submission of agreed facts is granted. The parties are to submit the agreed statement of facts on or before 9/26/13. The motion hearing scheduled for 9/24/13 is stricken. Judicial staff mailed notice (gl, ) (Entered: 09/19/2013)
230 RESPONSE by Kevin Casey, Illinois Department of Human Services, Patrick Quinn, Michelle R.B. Saddler to MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Po 206 (Attachments: # 1 Exhibit List, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Ioppolo, Thomas) (Entered: 09/19/2013)

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 29 of 44

09/19/2013 09/23/2013 09/23/2013 09/23/2013 09/23/2013 09/23/2013 09/23/2013
09/23/2013 09/23/2013 09/23/2013
09/23/2013

231 NOTICE by Kevin Casey, Illinois Department of Human Services, Patrick Quinn, Michelle R.B. Saddler re response to motion,, 230 (Ioppolo, Thomas) (Entered: 09/19/2013)
232 STATUS Report regarding DHS Defendants' Privilege Log by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Rawski, Laura) (Entered: 09/23/2013)
233 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler to seal document status report 232 Exhibit B Only (Malowitz, Marni) (Entered: 09/23/2013)
234 NOTICE of Motion by Marni M. Malowitz for presentment of motion to seal document, motion for relief 233 before Honorable Daniel G. Martin on 9/26/2013 at 10:00 AM. (Malowitz, Marni) (Entered: 09/23/2013)
235 MINUTE entry before Honorable Daniel G. Martin:MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler to seal document status report 232 Exhibit B Only 233 is granted. No appearance is required on 9/26/2013.Mailed notice (lxs, ) (Entered: 09/23/2013)
236 SEALED DOCUMENT by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler Exhibit B to DHS Defendants' Status Report Regarding Privilege Log (Attachments: # 1 Exhibit B, Part 1, # 2 Exhibit B, Part 2, # 3 Exhibit B, Part 3, # 4 Exhibit B, Part 4, # 5 Exhibit B, Part 5, # 6 Exhibit B, Part 6, # 7 Exhibit B, Part 7, # 8 Exhibit B, Part 8, # 9 Exhibit B, Part 9)(Rawski, Laura) (Entered: 09/23/2013)
237 REPLY by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Patrick Quinn, Lauren Stengler, Jeannie L. Williams, Rita Winkeler to MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Po 206 (Sherwin, Judith) (Entered: 09/23/2013)
238 REPLY by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler to reply to response to motion,, 237 Exhibits Attached (Attachments: # 1 Exhibit 1−3, # 2 Exhibit 4−7)(Sherwin, Judith) (Entered: 09/23/2013)
239 WITNESS List by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler (Attachments: # 1 Affidavit Rita Winkeler)(Sherwin, Judith) (Entered: 09/23/2013)
240 SEALED EXHIBIT by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler regarding witness list, 239 (Attachments: # 1 Affidavit Rita Winkeler, # 2 Affidavit Rita Winkeler, # 3 Affidavit Rita Winkeler, # 4 Affidavit Rita Winkeler, # 5 Affidavit Rita Winkeler, # 6 Affidavit Rita Winkeler, # 7 Affidavit Rita Winkeler, # 8 Affidavit Rita Winkeler, # 9 Affidavit Rita Winkeler, # 10 Affidavit Rita Winkeler, # 11 Affidavit Rita Winkeler, # 12 Affidavit Rita Winkeler, # 13 Affidavit Rita Winkeler, # 14 Affidavit Rita Winkeler, # 15 Affidavit Rita Winkeler, # 16 Affidavit Rita Winkeler)(Sherwin, Judith) (Entered: 09/23/2013)
241 WITNESS List by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler (Attachments: # 1 Affidavit Rita Winkeler, # 2 Affidavit Rita Burke 30(b)(6) Representative of ILAdd, # 3 Affidavit Karen Kelly, # 4 Affidavit Stewart Freeman, #

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 30 of 44

09/23/2013
09/23/2013 09/23/2013 09/24/2013 09/24/2013 09/24/2013 09/24/2013 09/24/2013 09/24/2013 09/24/2013 09/25/2013 09/25/2013 09/25/2013 09/25/2013

5 Affidavit Janice Kerst, # 6 Affidavit William Fields, # 7 Affidavit Jeanine Williams, # 8 Affidavit Denise Schoppet, # 9 Affidavit Marsha Holzhauer, # 10 Affidavit Bill henson, # 11 Affidavit Alicia Creed, # 12 Affidavit Tracy Kiselewski, # 13 Affidavit Julie Hester, # 14 Affidavit Adam Gibson, # 15 Affidavit Kim Davis, # 16 Affidavit Celeste Stratemayer, # 17 Affidavit Lori Demijan, # 18 Affidavit Tracy Howell, # 19 Affidavit Margie Barton, # 20 Affidavit Steve Kopper, # 21 Affidavit Hamilton Rech, # 22 Affidavit Rhonda Hendricks, # 23 Affidavit Bill Kelly)(Sherwin, Judith) (Entered: 09/23/2013)
242 SEALED EXHIBIT by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler regarding witness list,,,, 241 (Attachments: # 1 Affidavit Kelly Rapp (Under Seal), # 2 Affidavit Rhonda Gibson (Under Seal))(Sherwin, Judith) (Entered: 09/23/2013)
243 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for leave to file to file Sealed Version of Direct Testimony (Rawski, Laura) (Entered: 09/23/2013)
244 NOTICE of Motion by Laura Marie Rawski for presentment of motion for leave to file 243 before Honorable Marvin E. Aspen on 9/26/2013 at 10:30 AM. (Rawski, Laura) (Entered: 09/23/2013)
245 SUBMISSION of Affidavits by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler (Attachments: # 1 Exhibit A (without affidavit exhibits), # 2 Exhibit B (without affidavit exhibits), # 3 Exhibit C (without affidavit exhibits))(Malowitz, Marni) (Entered: 09/24/2013)
246 SUBMISSION of Affidavits (public) by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler (Attachments: # 1 Exhibit A (Casey), # 2 Exhibit B (Mayer), # 3 Exhibit C (Dufresne))(Malowitz, Marni) (Entered: 09/24/2013)
247 SEALED DOCUMENT by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler (Attachments: # 1 Exhibit A part 1 (Casey), # 2 Exhibit A part 2 (Casey), # 3 Exhibit A part 3 (Casey))(Malowitz, Marni) (Entered: 09/24/2013)
248 SEALED DOCUMENT by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler (Attachments: # 1 Exhibit B part 1 (Mayer), # 2 Exhibit B part 2 (Mayer), # 3 Exhibit B part 3 (Mayer), # 4 Exhibit B part 4 (Mayer), # 5 Exhibit C (Dufresne))(Malowitz, Marni) (Entered: 09/24/2013)
249 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for leave to file dockets numbers 246, 247, 248 (Malowitz, Marni) (Entered: 09/24/2013)
250 NOTICE of Motion by Marni M. Malowitz for presentment of motion for leave to file 249 before Honorable Marvin E. Aspen on 9/26/2013 at 10:30 AM. (Malowitz, Marni) (Entered: 09/24/2013)
251 MINUTE entry before Honorable Daniel G. Martin:Magistrate Judge Status hearing held on 9/24/2013. Detailed order to follow.Mailed notice (lxs, ) (Entered: 09/24/2013)
252 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. SaddlerDHS Defendants' Motion for Telephonic Testimony of Rebuttal Witnesses (Rawski, Laura) (Entered: 09/25/2013)
253 NOTICE of Motion by Laura Marie Rawski for presentment of motion for miscellaneous relief 252 before Honorable Marvin E. Aspen on 10/1/2013 at 10:30 AM. (Rawski, Laura) (Entered: 09/25/2013)
254 ORDER Signed by the Honorable Daniel G. Martin on 9/25/2013.Mailed notice(lxs, ) (Entered: 09/25/2013)
255 MINUTE entry before Honorable Marvin E. Aspen:Defendants' motion for leave to file 243 under seal and Defendants' motion for leave to file 249 documents 26, 247 & 248, are entered and continued to 10/1/13 at 10:00 a.m. Judicial staff mailed notice (gl,

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 31 of 44

09/25/2013
09/25/2013
09/25/2013 09/26/2013
09/26/2013 09/26/2013 09/26/2013
09/26/2013 09/26/2013 09/26/2013 09/26/2013

) (Entered: 09/25/2013)
256 RESPONSE by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkelerin Opposition to MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. SaddlerDHS Defendants' Motion for Telephonic Testimony of Rebuttal Witnesses 252 (Sherwin, Judith) (Entered: 09/25/2013)
257 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkelerto Present Mark Doyle and Rick Starr as Adverse Witnesses (Attachments: # 1 Exhibit A)(Sherwin, Judith) (Entered: 09/25/2013)
258 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for miscellaneous relief, 257 before Honorable Marvin E. Aspen on 10/1/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 09/25/2013)
259 MINUTE entry before Honorable Marvin E. Aspen: On September 24, 2013, we received DHS Defendants' Motion (249) for Leave to File Instanter and to Substitute Filing. In light of the technical difficulties with the CM/ECF system that occurred on the evening of September 23, 2013, we hereby grant DHS Defendants motion for leave to file instanter their preliminary injunction affidavits with complete exhibits at docket #246, 247, and 248 and substitute docket #246 in place of docket #245. The motion hearing scheduled for 10/1/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 09/26/2013)
260 MINUTE entry before Honorable Marvin E. Aspen: DHS Defendants' motion for telephone testimony of rebuttal witnesses (252) is taken under advisement.Judicial staff mailed notice (gl, ) (Entered: 09/26/2013)
261 REPLY by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler to response in opposition to motion,, 256 (Attachments: # 1 Exhibit A)(Rawski, Laura) (Entered: 09/26/2013)
262 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler for leave to file Resubmitted Affidavit of Adam Gibson (Attachments: # 1 Affidavit Adam Gibson)(Sherwin, Judith) (Entered: 09/26/2013)
263 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for leave to file, 262 before Honorable Marvin E. Aspen on 10/1/2013 at 10:00 AM. (Sherwin, Judith) (Entered: 09/26/2013)
264 MINUTE entry before Honorable Marvin E. Aspen:Defendants' Motion for leave to file 243 under seal a full unredacted version of DHS Defendants' submission of Direct Testimony in support of Case−In−Chief is granted. The motion hearing scheduled for 10/1/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 09/26/2013)
265 MINUTE entry before Honorable Marvin E. Aspen: Plaintiffs' motion to present Mark Doyle and Rick Starr as adverse witnesses (257) and Plaintiffs' motion to resubmit the affidavit of Adam Gibson are both taken under advisement. The motion hearing scheduled for 10/1/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 09/26/2013)
266 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for leave to file Sur−Reply to DHS Defendants' Reply in Support of Their Motion for Telephonic Testimony of Rebuttal Witnesses (Attachments: # 1 Appendix Plaintiffs' Sur−Reply to DHS Defendants' Reply in Support of Their Motion for Telephonic

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 32 of 44

09/26/2013 09/26/2013
09/26/2013 09/30/2013 10/01/2013 10/01/2013 10/01/2013
10/01/2013
10/03/2013 10/03/2013 10/03/2013 10/03/2013

Testimony of Rebuttal Witnesses)(Sherwin, Judith) (Entered: 09/26/2013)
267 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for leave to file,, 266 before Honorable Marvin E. Aspen on 10/1/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 09/26/2013)
268 MINUTE entry before Honorable Marvin E. Aspen: Parties continue to file pretrial motions that require the Court's attention prior to the preliminary injunction hearing, currently set for Tuesday, October 1, 2013. Because of other matters previously scheduled by the Court, the preliminary injunction hearing will be continued to Monday, November 4, 2013, at 10:00 a.m. It is so ordered.Judicial staff mailed notice (gl, ) (Entered: 09/26/2013)
269 MINUTE entry before Honorable Daniel G. Martin: All matters relating to the referral of this action having been concluded, the referral is closed and the case is returned to the assigned judge. Judge Honorable Daniel G. Martin no longer referred to the case.Mailed notice (lxs, ) (Entered: 09/26/2013)
270 MINUTE entry before Honorable Marvin E. Aspen: Plaintiffs' motion to file sur−reply to defendants reply in support of their motion for telephonic testimony (66) is taken under advisement. The motion hearing set for 10/1/13 i stricken.Judicial staff mailed notice (gl, ) (Entered: 09/30/2013)
271 MINUTE entry before Honorable Marvin E. Aspen: Plaintiffs' Motion 262 for leave to re−file the complee affidvit of Adam Gibson is granted.Judicial staff mailed notice (gl, ) (Entered: 10/01/2013)
272 MINUTE entry before Honorable Marvin E. Aspen:Plaintiffs' Motion for leave to file 266 a sur−reply, instanter, to DHS Defendants' reply in support of their motion to call live rebuttal witnesses is granted. Judicial staff mailed notice (gl, ) (Entered: 10/01/2013)
273 MINUTE entry before Honorable Marvin E. Aspen: On September 25, 2013, we received DHS Defendants Motion for Telephonic Testimony of Rebuttal Witnesses. We deny DHS motion (252) for telephonic testimony by Ms. Spesard, Ms. Harris, and Ms. Yaunches, but if it so chooses, grant DHS leave of Court to submit their rebuttal testimony by affidavit. Each affidavit should be no longer than five pages and must be submitted no later than five days of the conclusion of the preliminary injunction hearing, after all other courtroom testimony has been given. It is so ordered.Judicial staff mailed notice (gl, ) (Entered: 10/01/2013)
274 MINUTE entry before Honorable Marvin E. Aspen: On September 25, 2013, we received Plaintiffs Motion (257) to Present Mark Doyle and Rick Starr as Adverse Witnesses. DHS Defendants objected in their Motion for Telephonic Testimony of Rebuttal Witnesses, stating that should the Court permit Plaintiffs to call Mr. Doyle and Mr. Starr as adverse witnesses, then Mr. Doyle and Mr. Starr should testify only as rebuttal witnesses for Plaintiffs. We grant Plaintiffs Motion to present Mr. Doyle and Mr. Starr as adverse witnesses. Judicial staff mailed notice (gl, ) (Entered: 10/01/2013)
275 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for leave to file amended declaration of Derrick Dufresne and substitute for original declaration (Attachments: # 1 Exhibit Am. Declaration of Derrick Dufresne, # 2 Exhibit Original Declaration with red−lined changes)(Bhave, Sunil) (Entered: 10/03/2013)
276 NOTICE of Motion by Sunil Shashikant Bhave for presentment of motion for leave to file, 275 before Honorable Marvin E. Aspen on 10/8/2013 at 10:30 AM. (Bhave, Sunil) (Entered: 10/03/2013)
277 MINUTE entry before Honorable Marvin E. Aspen: Pretrial Conference set for 10/10/2013 at 11:00 AM.Judicial staff mailed notice (gl, ) (Entered: 10/03/2013)
278 RESPONSE by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkelerin Opposition to MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for leave to file amended declaration of Derrick

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 33 of 44

10/04/2013
10/04/2013 10/04/2013 10/07/2013
10/07/2013 10/07/2013 10/07/2013 10/08/2013
10/08/2013 10/10/2013 10/10/2013 10/11/2013

Dufresne and substitute for original declaration 275 (Attachments: # 1 Exhibit Declaration of Dan Saeedi)(Sherwin, Judith) (Entered: 10/03/2013)
279 REPLY by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler to response in opposition to motion,, 278 , MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for leave to file amended declaration of Derrick Dufresne and substitute for original declaration 275 (Attachments: # 1 Exhibit Excerpt of Ann Yaunches's Deposition)(Bhave, Sunil) (Entered: 10/04/2013)
280 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Patrick Quinn, Michelle R.B. Saddler to bar Various Testimonial Affidavits and Exhibits Submitted By Plaintiffs (Ioppolo, Thomas) (Entered: 10/04/2013)
281 NOTICE of Motion by Thomas A. Ioppolo for presentment of motion to bar 280 before Honorable Marvin E. Aspen on 10/8/2013 at 10:30 AM. (Ioppolo, Thomas) (Entered: 10/04/2013)
282 MINUTE entry before Honorable Marvin E. Aspen: On October 3, 2013, we received DHS Defendants Motion for Leave to File Amended Declaration of Derrick Dufresne and Substitute for Original Declaration. Plaintiffs objected on the basis that DHS defendants are attempting to file what is essentially a new affidavit for Derrick Dufresne. We agree with DHS defendants, however, that the paragraph added to Mr. Dufresnes declaration does not constitute a new declaration, but rather an explanation of the role of the Pre−Admission Screening Agency (PAS) in conducting oversight of individuals who have been transitioned into a Community Integrated Living Arrangement (CILA). We therefore grant DHS Defendants Motion. (275). It is so ordered.Judicial staff mailed notice (gl, ) (Entered: 10/07/2013)
283 MINUTE entry before Honorable Marvin E. Aspen:Plaintiffs are to respond to Defendants' motion to bar various testimonial affidavits and exhibits (Dkt. No. 280) on or before 10/22/2013. Defendants to reply by 10/29/2013. The motion hearing scheduled for 10/8/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 10/07/2013)
284 MINUTE entry before Honorable Marvin E. Aspen: The preliminary injunction hearing set for November 4, 2013 is stricken and reset to Monday, January 6, 2014 at 10:00 a.m. The conference currently scheduled for Thursday, October 10, 2013 at 11 a.m. stands. (gl, ) (Entered: 10/07/2013)
287 GENERAL ORDER 13−0018 dated 10/7/13: IT IS HEREBY ORDERED, effective October 1, 2013, that all civil litigation involving as a party the United States of America, is immediately suspended, postponed and held in abeyance continuing for a period of fourteen (14) days from the date of entry of this General Order (See Attached Order). Signed by Chief Judge Castillo.(rp, ) (Entered: 10/10/2013)
285 MINUTE entry before Honorable Marvin E. Aspen: Enter Memorandum Opinion and Order: Defendants motion (Dkt. No. 162) is granted in part and denied in part. We dismiss Counts IV and V as to Defendant DHS, and we dismiss all claims against Governor Quinn. Count III is dismissed entirely, and Count V is dismissed to the extent it alleged violations of state regulatory laws relating to Medicaid. The motion is denied in all other respects. (For further details, see Memorandum Opinion and Order in separate docketentry). Judicial staff mailed notice (gl, ) (Entered: 10/08/2013)
286 MEMORANDUM Opinion and Order Signed by the Honorable Marvin E. Aspen on 10/8/2013:Judicial staff mailed notice(gl, ) (Entered: 10/08/2013)
288 MINUTE entry before Honorable Marvin E. Aspen:Final pretrial conference held on 10/10/2013. Parties are referred to Magistrate Judge Martin for a settlement conference.Judicial staff mailed notice (gl, ) (Entered: 10/10/2013)
289 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable Daniel G. Martin for the purpose of holding proceedings related to: settlement conference. (gl, )Judicial staff mailed notice. (Entered: 10/10/2013)
290 MINUTE entry before Honorable Daniel G. Martin: Status hearing set for 12/10/2013 at 02:00 p.m. The parties shall review and comply with Judge Martin's Standing Order for Settlement Conferences which is available on Judge Martin's web page at

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 34 of 44

10/15/2013
10/21/2013 10/21/2013 10/22/2013 10/22/2013
10/22/2013
10/25/2013 10/28/2013 10/29/2013 11/06/2013

www.ilnd.uscourts.gov. Each party is required to email a copy of its settlement letter to Judge Martin's settlement conference inbox on the same day that it is provided to opposing counsel. The email address is Settlement_Correspondence_Martin@ilnd.uscourts.gov. Do not file copies of these letters on the court docket. Because of the volume of settlement conferences conducted by Judge Martin, once a settlement conference date has been agreed upon, the settlement conference will not be rescheduled without a motion showing good cause. Mailed notice (lxs, ) (Entered: 10/11/2013)
291 MINUTE entry before Honorable Daniel G. Martin: Settlement Conference set for 12/10/2013 at 02:00 p.m. The parties shall review and comply with Judge Martin's Standing Order for Settlement Conferences which is available on Judge Martin's web page at www.ilnd.uscourts.gov. Each party is required to email a copy of its settlement letter to Judge Martin's settlement conference inbox on the same day that it is provided to opposing counsel. The email address is Settlement_Correspondence_Martin@ilnd.uscourts.gov. Do not file copies of these letters on the court docket. Because of the volume of settlement conferences conducted by Judge Martin, once a settlement conference date has been agreed upon, the settlement conference will not be rescheduled without a motion showing good cause. Mailed notice (lxs, ) (Entered: 10/15/2013)
292 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for extension of time to Answer (Rawski, Laura) (Entered: 10/21/2013)
293 NOTICE of Motion by Laura Marie Rawski for presentment of extension of time 292 before Honorable Marvin E. Aspen on 10/24/2013 at 10:30 AM. (Rawski, Laura) (Entered: 10/21/2013)
294 MINUTE entry before Honorable Marvin E. Aspen:Defendants' Motion for extension of time 292 until 10/25/13, to answer plaintiffs' second amended complaint is granted. The motion hearing scheduled for 10/24/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 10/22/2013)
295 MINUTE entry before Honorable Daniel G. Martin: In light of the 12/10/2013 settlement conference set to begin at 2:00 p.m., plaintiff's settlement letter is due 11/26/2013; defendant's settlement letter is due 12/3/2013. The parties are reminded that Magistrate Judge Martin requires compliance with his Standing Order for Settlement Conferences, which is available on Magistrate Judge Martin's web page at www.ilnd.uscourts.gov. Mailed notice (lxs, ) (Entered: 10/22/2013)
296 RESPONSE by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stenglerin Opposition to MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Patrick Quinn, Michelle R.B. Saddler to bar Various Testimonial Affidavits and Exhibits Submitted By Plaintiffs 280 (Sherwin, Judith) (Entered: 10/22/2013)
297 ANSWER to amended complaint by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler(Malowitz, Marni) (Entered: 10/25/2013)
298 Adoption of DHS Defendants' ANSWER to amended complaint Second Amended Complaint by Community Resource Alliance(Boyle, Patrick) (Entered: 10/28/2013)
299 REPLY by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler to response in opposition to motion,, 296 to bar (Ioppolo, Thomas) (Entered: 10/29/2013)
300 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for leave to file Sur−Reply to Defendants' Motion to Bar Evidence (Attachments: # 1 Exhibit Sur−Reply to Defendants' Motion to Bar Evidence)(Sherwin, Judith) (Entered: 11/06/2013)

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 35 of 44

11/06/2013 11/07/2013 11/07/2013 11/07/2013 11/07/2013
11/12/2013 11/13/2013 11/15/2013
11/15/2013 11/18/2013 11/18/2013
11/18/2013 11/19/2013
11/20/2013

301 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for leave to file, 300 before Honorable Marvin E. Aspen on 11/12/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 11/06/2013)
302 MINUTE entry before Honorable Marvin E. Aspen:Plaintiffs' Motion for leave to file 300 sur−reply to defendants' motion for evidence is granted. The motion hearing scheduled for 11/12/13 is stricken. Judicial staff mailed notice (gl, ) (Entered: 11/07/2013)
303 MOTION by Plaintiff Illinois League of Advocates for the Developmentally Disabled for protective order (Attachments: # 1 Exhibit 1)(Reilly−Bates, Gabriel) (Entered: 11/07/2013)
304 NOTICE of Motion by Gabriel Reilly−Bates for presentment of motion for protective order 303 before Honorable Marvin E. Aspen on 11/12/2013 at 10:30 AM. (Reilly−Bates, Gabriel) (Entered: 11/07/2013)
305 SUR−REPLY by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler to Defendants' Motion to Bar Evidence 280 (mr, ) (Entered: 11/08/2013)
306 MEMORANDUM by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler pursuant to Court's Oct. 8, 2013, Order (Attachments: # 1 Exhibit Defs. Letter to Pls, 11/4/13, # 2 Exhibit Draft Prelim. Inj. Order pursuant to Court's Oct. 8 Order)(Bhave, Sunil) (Entered: 11/12/2013)
307 MINUTE entry before Honorable Marvin E. Aspen:Defendants are to respond to Plaintiffs' motion for protective order 303 :on or before 11/18/2013. Plaintiffs to reply by 11/21/2013.Judicial staff mailed notice (gl, ) (Entered: 11/13/2013)
308 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for extension of time TO RESPOND TO THE COURT'S OCTOBER 8, 2013 INQUIRIES OF THE PARTIES (Sherwin, Judith) (Entered: 11/15/2013)
309 NOTICE of Motion by Judith Schwartz Sherwin for presentment of extension of time, 308 before Honorable Marvin E. Aspen on 11/19/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 11/15/2013)
310 MINUTE entry before Honorable Marvin E. Aspen:Plaintiffs' Motion for extension of time 308 to 11/19/13 to provide their response to the Court's October 8, 2013 inquiries of the parties is granted. The motion hearing scheduled for 11/19/13 is stricken. Judicial staff mailed notice (gl, ) (Entered: 11/18/2013)
311 MINUTE entry before Honorable Marvin E. Aspen:Plaintiffs' Motion for entry of a modified confidentiality order 303 is granted. Enter Modified Agreed Confidentiality Order. (For further details, see Order in separate docket entry). The briefing scheduled previously set on the motion for confidentiality order is vacated. Judicial staff mailed notice (gl, ) (Entered: 11/18/2013)
312 Modified Agreed Confidentiality Order. Signed by the Honorable Marvin E. Aspen on 11/18/2013:Judicial staff mailed notice(gl, ) (Entered: 11/18/2013)
313 RESPONSE by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler To This Court's October 8, 2013 Inquiries (Attachments: # 1 Exhibit A)(Sherwin, Judith) (Entered: 11/19/2013)
314 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for leave to file (Re−File) the Affidavit of Rita Burke (Attachments: # 1 Exhibit Exhibit

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 36 of 44

11/20/2013 11/21/2013 11/21/2013 12/05/2013
12/05/2013 12/05/2013
12/05/2013 12/09/2013 12/09/2013 12/09/2013 12/10/2013 12/10/2013
12/10/2013 12/11/2013

A)(Sherwin, Judith) (Entered: 11/20/2013)
315 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for leave to file, 314 before Honorable Marvin E. Aspen on 11/26/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 11/20/2013)
316 MINUTE entry before the Honorable Marvin E. Aspen:Plaintiffs' Motion for leave to re−file 314 the Affidavit of Rita Burke is granted. The motion hearing scheduled for 11/26/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 11/21/2013)
317 DECLARATION of Rita Burke as Representative of ILADD. (ao,) (Entered: 11/22/2013)
318 MINUTE entry before the Honorable Marvin E. Aspen: In our October 8, 2013 opinion, we ordered the parties to submit their positions on certain open issues. (Dkt. No. 286.) We have considered the parties responses to our inquiries and provide the following clarifications in preparation for the hearing. (See Dkt. Nos. 306, 313.) Enter Order. (For further details, see Order in separate docket entry). Judicial staff mailed notice (gl, ) (Entered: 12/05/2013)
319 ORDER. Signed by the Honorable Marvin E. Aspen on 12/5/2013:Judicial staff mailed notice(gl, ) (Entered: 12/05/2013)
320 MINUTE entry before the Honorable Marvin E. Aspen:Enter Memorandum Opinion and Order: Presently before us is a Motion to Bar Various Testimonial Affidavits and Exhibits Submitted by Plaintiffs (Dkt. No. 280), filed by Defendants Illinois Department of Human Services ("DHS"), Kevin Casey, and Michelle R.B. Saddler ("DHS Defendants"). The motion is granted in part and denied in part. (For further details, see Memorandum Opinion and Order in separate docket entry).Judicial staff mailed notice (gl, ) (Entered: 12/05/2013)
321 MEMORANDUM Opinion and Order. Signed by the Honorable Marvin E. Aspen on 12/5/2013:Judicial staff mailed notice(gl, ) (Entered: 12/05/2013)
322 MINUTE entry before the Honorable Daniel G. Martin: Settlement Conference set for 12/10/2013 is reset for 12/12/2013 at 02:00 p.m. The Court appreciates the parties willingness in accommodating Judge Martin's request with rescheduling the settlement conference. Mailed notice (lxs, ) (Entered: 12/09/2013)
323 MOTION by Amicus Equip for Equality, Inc. for leave to file Brief Amici Curiae (Attachments: # 1 Exhibit)(Ward, Karen) (Entered: 12/09/2013)
324 NOTICE of Motion by Karen I. Ward for presentment of motion for leave to file 323 before Honorable Marvin E. Aspen on 12/12/2013 at 10:30 AM. (Ward, Karen) (Entered: 12/09/2013)
325 MINUTE entry before the Honorable Marvin E. Aspen:Parties have until 12/16/13 to file response to motion for leave to file 323 AMICICURIAE, instanter. The motion hearing scheduled for 12/12/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 12/10/2013)
326 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita WinkelerFor Court to Take Judicial Notice (Attachments: # 1 Exhibit Exhibits A through C)(Sherwin, Judith) (Entered: 12/10/2013)
327 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for miscellaneous relief, 326 before Honorable Marvin E. Aspen on 12/12/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 12/10/2013)
328 MINUTE entry before the Honorable Marvin E. Aspen: Plaintiffs' motion for Court to take judicial notice (326) is entered and continued until further notice. The motion hearing scheduled for 12/12/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 12/11/2013)

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 37 of 44

12/12/2013 12/13/2013 12/13/2013 12/13/2013 12/13/2013 12/13/2013
12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013
12/17/2013
12/18/2013

329 MINUTE entry before the Honorable Daniel G. Martin: Settlement conference held on 12/12/2013. Agreement not reached. Referral order will remain open pending the preliminary injunction hearing set before the district court. Mailed notice (lxs, ) (Entered: 12/12/2013)
330 MINUTE entry before the Honorable Marvin E. Aspen:Defendants are to respond to plaintiffs' motion 326 for Court to take judicial notice by 12/17/2013Judicial staff mailed notice (gl, ) (Entered: 12/13/2013)
331 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler to strike Defendants' Second Affirmative Defense (Sherwin, Judith) (Entered: 12/13/2013)
332 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion to strike, 331 before Honorable Marvin E. Aspen on 12/17/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 12/13/2013)
333 MEMORANDUM by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler in support of motion to strike, 331 (Sherwin, Judith) (Entered: 12/13/2013)
334 Supplemental Brief by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler Plaintiffs' Supplemental Brief Regarding Relief Sought on Their Equal Protection Claim (Sherwin, Judith) (Entered: 12/13/2013)
335 MINUTE entry before the Honorable Marvin E. Aspen: Plaintiffs Motion to Strike Defendants Second Affirmative Defense is denied. It is so ordered. (For further details, see Order in separate docket entry). The motion hearing scheduled for 12/19/13 is stricken. Judicial staff mailed notice (gl, ) (Entered: 12/16/2013)
336 MINUTE entry before the Honorable Marvin E. Aspen: The minute entry of 12/16/13 (Dkt. No. 335) is corrected to read that the motion hearing scheduled for 12/17/13 is stricken. All other aspects of the minute entry to stand. Judicial staff mailed notice (gl, ) (Entered: 12/16/2013)
337 ORDER. Signed by the Honorable Marvin E. Aspen on 12/16/2013:Judicial staff mailed notice(gl, ) (Entered: 12/16/2013)
338 RESPONSE by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddlerin Support of MOTION by Amicus Equip for Equality, Inc. for leave to file Brief Amici Curiae 323 (Malowitz, Marni) (Entered: 12/16/2013)
339 MEMORANDUM by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler in Opposition to motion for leave to file 323 (Attachments: # 1 Exhibit Group A−B)(Sherwin, Judith) (Entered: 12/16/2013)
340 RESPONSE by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddlerin Opposition to MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Po 326 (Attachments: # 1 Exhibit Index, # 2 Exhibit A−B)(Rawski, Laura) (Entered: 12/17/2013)
341 MINUTE entry before the Honorable Marvin E. Aspen: Equip for Equality and the other Amici parties' motion for leave to file 323 brief Amici Curiae, instanter, is denied.Judicial staff mailed notice (gl, ) (Entered: 12/18/2013)

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 38 of 44

12/19/2013
12/19/2013 12/19/2013 12/19/2013 12/19/2013 12/27/2013 12/27/2013 12/30/2013 12/31/2013 12/31/2013 01/03/2014
01/03/2014 01/07/2014

342 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for leave to file Reply to Defendants' Response in Opposition to Motion to Take Judicial Notice (Attachments: # 1 Exhibit Exhibit A to Motion for Leave to File Reply)(Sherwin, Judith) (Entered: 12/19/2013)
343 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for leave to file,, 342 before Honorable Marvin E. Aspen on 12/24/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 12/19/2013)
344 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for leave to file,, 342 before Honorable Marvin E. Aspen on 12/26/2013 at 10:30 AM. (Sherwin, Judith) (Entered: 12/19/2013)
345 MINUTE entry before the Honorable Marvin E. Aspen:Plaintiffs' Motion for leave to file 342 reply to defendants' response in opposition to motion to take judicial notice is granted. The motion hearing scheduled for 12/26/13 is stricken.Judicial staff mailed notice (gl, ) (Entered: 12/19/2013)
346 MINUTE entry before the Honorable Marvin E. Aspen: Presently before us is Plaintiffs' Motion for Court to Take Judicial Notice (Dkt. No. 326). The motion is granted in part, and denied in part. Enter Order. Judicial staff mailed notice (gl, ) (Entered: 12/19/2013)
347 MEMORANDUM by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler regarding Plaintiff's Equal Protection Claim (Attachments: # 1 Exhibit 405 ILCS 30/4.4, # 2 Exhibit Sciarrillo v. Christie, 2013 WL 6586569 (D.N.J. 2013))(Ioppolo, Thomas) (Entered: 12/27/2013)
348 JOINT Stipulation of Facts by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler (Malowitz, Marni) (Entered: 12/27/2013)
349 MINUTE entry before the Honorable Marvin E. Aspen: If the parties do not submit their lists of witnesses selected for cross−examinationpursuant to this order, we will assume they have stipulated to a continuance of the hearing andwill enter an order accordingly. Enter Order.Judicial staff mailed notice (gl, ) (Entered: 12/30/2013)
350 WITNESS List by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler (Sherwin, Judith) (Entered: 12/31/2013)
351 WITNESS List by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler (Ioppolo, Thomas) (Entered: 12/31/2013)
352 MINUTE entry before the Honorable Marvin E. Aspen: The Court has set aside three days for the preliminary injunction hearing next week. The hearing shall commence on Tuesday, January 7, 2014 and shall continue through Thursday, January 9, 2014. On January 7 and January 9, 2014, the hearing will be held from 9:30 a.m. to approximately 5 p.m. On Wednesday, January 8, 2014, the hearing will be held from 10:30 a.m. to approximately 5 p.m. The Court anticipates that all cross−examination will be concluded in this time frame. If not, we will schedule another hearing at a later time on a date that is mutually convenient to the parties and the Court. Enter Order.Judicial staff mailed notice (gl, ) (Entered: 01/03/2014)
353 RESPONSE by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler to memorandum, 347 (Sherwin, Judith) (Entered: 01/03/2014)
354 Legal Theory and Factual Support Summary as Ordered on January 3, 2014 by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny,

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 39 of 44

01/07/2014 01/08/2014 01/09/2014 01/09/2014 01/14/2014
01/14/2014 01/16/2014
01/16/2014
01/16/2014 01/16/2014 01/17/2014 01/17/2014 01/17/2014
01/22/2014
01/22/2014

Lauren Stengler, Jeannie L. Williams, Rita Winkeler (Sherwin, Judith) (Entered: 01/07/2014)
355 MINUTE entry before the Honorable Marvin E. Aspen:Preliminary Injunction hearing held on 1/7/2014, and continued to Wednesday, 1/8/2014 at 10:30 AM.Judicial staff mailed notice (gl, ) (Entered: 01/07/2014)
356 MINUTE entry before the Honorable Marvin E. Aspen:Preliminary Injunction hearing held on 1/8/2014, and continued to 1/9/2014 at 09:30 AM.Judicial staff mailed notice (gl, ) (Entered: 01/09/2014)
357 DEFENDANTS STATEMENT OF FACTUAL SUPPORT AND LEGAL THEORY by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler (Ioppolo, Thomas) (Entered: 01/09/2014)
358 MINUTE entry before the Honorable Marvin E. Aspen:Preliminary Injunction hearing held on 1/9/2014. Judicial staff mailed notice (gl, ) (Entered: 01/10/2014)
359 MINUTE entry before the Honorable Marvin E. Aspen: The parties shall file the following post preliminary injunction hearing materials: Defendants may submit any rebuttal declarations from Ms. Spesard, Ms. Yaunches, and Ms. Harris on or by January 16, 2014. Plaintiffs may submit materials in response to Defendants rebuttal declarations on or by January 24, 2014. (For further details, see Oder in separate docket entry).Judicial staff mailed notice (gl, ) (Entered: 01/14/2014)
360 ORDER. Signed by the Honorable Marvin E. Aspen on 1/14/2014:Judicial staff mailed notice(gl, ) (Entered: 01/14/2014)
361 DECLARATION of Ann Yaunches, Rhonda Harris, and Cassidy Spesard (public) (Attachments: # 1 Declaration Ann Yaunches (with attachments), # 2 Declaration Rhonda Harris (with attachments), # 3 Declaration Cassidy Spesard (with attachments))(Bhave, Sunil) (Entered: 01/16/2014)
362 SEALED DOCUMENT by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler (Attachments: # 1 Declaration Ann Yaunches (with attachments), # 2 Declaration Rhonda Harris (with attachments), # 3 Declaration Cassidy Spesard (with attachments))(Bhave, Sunil) (Entered: 01/16/2014)
363 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for leave to file Dkt. No. 362 Under Seal (Bhave, Sunil) (Entered: 01/16/2014)
364 NOTICE of Motion by Sunil Shashikant Bhave for presentment of motion for leave to file 363 before Honorable Marvin E. Aspen on 1/21/2014 at 10:30 AM. (Bhave, Sunil) (Entered: 01/16/2014)
365 NOTICE by Sherri L. Thornton−Pierce of Change of Address and Firm Name (Thornton−Pierce, Sherri) (Entered: 01/17/2014)
366 NOTICE by Barton James O'Brien of Change of Address and Firm Name (O'Brien, Barton) (Entered: 01/17/2014)
367 MINUTE entry before the Honorable Marvin E. Aspen: Defendants' motion for leave to file document number 362 under seal is taken under advisement. The motion hearing scheduled for 1/21/14 is stricken.Judicial staff mailed notice (gl, ) (Entered: 01/17/2014)
368 MINUTE entry before the Honorable Marvin E. Aspen: MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for leave to file Dkt. No. 362 Under Sea is granted.Judicial staff mailed notice (gl, ) (Entered: 01/22/2014)
369 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for extension of time to file response/reply as to declaration, 361 (Sherwin, Judith) (Entered: 01/22/2014)

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 40 of 44

01/22/2014 01/24/2014 01/24/2014 02/04/2014
02/06/2014 02/07/2014 02/07/2014 02/10/2014
02/14/2014
02/14/2014 02/18/2014
03/05/2014 03/05/2014

370 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for extension of time to file response/reply,, motion for relief, 369 before Honorable Marvin E. Aspen on 1/28/2014 at 10:30 AM. (Sherwin, Judith) (Entered: 01/22/2014)
371 MINUTE entry before the Honorable Marvin E. Aspen:Plaintiffs' Motion for extension of time to file response 369 to affidavits of YYaunches, Spesard and Harris,, up to and including 2/4/14, is granted. The motion hearing scheduled for 1/28/14 is stricken. Judicial staff mailedj notice (gl, ) (Entered: 01/24/2014)
372 NOTICE by Gabriel Reilly−Bates of Change of Address (Reilly−Bates, Gabriel) (Entered: 01/24/2014)
373 RESPONSE by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler to Affidavits of Ms. Yaunches, Ms. Spesard and Ms. Harris (Attachments: # 1 Exhibit A)(Sherwin, Judith) (Entered: 02/04/2014)
374 NOTICE by Judith Schwartz Sherwin of Change of Address (Sherwin, Judith) (Entered: 02/06/2014)
375 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for extension of time (Sherwin, Judith) (Entered: 02/07/2014)
376 NOTICE of Motion by Judith Schwartz Sherwin for presentment of extension of time, 375 before Honorable Marvin E. Aspen on 2/13/2014 at 10:30 AM. (Sherwin, Judith) (Entered: 02/07/2014)
377 MINUTE entry before the Honorable Marvin E. AThe Parties' Motion for extension of time 375 in which to file post−hearing briefs and post−pone the briefing schedule currently in place, until the transcripts are completed and transmitted to counsel at which time the parties will inform the Court of their delivery so the Court can reset the briefing schedule is granted. The motion hearing scheduled for 2/13/14 is stricken.Judicial staff mailed notice (gl, ) (Entered: 02/10/2014)
378 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler, Amicus Equip for Equality, Inc. to set a briefing schedule as Agreed (Sherwin, Judith) (Entered: 02/14/2014)
379 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion by filer to set a briefing schedule, 378 before Honorable Marvin E. Aspen on 2/20/2014 at 10:30 AM. (Sherwin, Judith) (Entered: 02/14/2014)
380 MINUTE entry before the Honorable Marvin E. Aspen:The parties' joint Motion (378) for an agreed briefing schedule for submission of post−hearing briefs is granted. (1). Plaintiffs will have until 3/5/14 to submit their post−hearing brief; (2). Defendants have until 3/21/14 to submit their response; and (3). Plaintiffs have until 4/4/14 to submit their reply. The motion hearing set for 2/20/14 is stricken. Judicial staff mailed notice (gl, ) (Entered: 02/18/2014)
381 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for leave to file excess pages (Sherwin, Judith) (Entered: 03/05/2014)
382 Statement of Facts STATEMENT by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Jeannie L. Williams, Rita Winkeler (Attachments: # 1 Exhibit Hearing Transcripts, # 2 Exhibit Exhibits Cited in SOF, # 3 Exhibit Exhibits

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 41 of 44

03/06/2014
03/06/2014 03/06/2014 03/06/2014 03/07/2014 03/14/2014
03/14/2014 03/17/2014
03/27/2014 03/27/2014 03/31/2014 04/07/2014

Cited in SOF, # 4 Exhibit Exhibits Cited in SOF, # 5 Exhibit Exhibits Cited in SOF, # 6 Exhibit Exhibits Cited in SOF, # 7 Exhibit Exhibits Cited in SOF, # 8 Exhibit Exhibits Cited in SOF, # 9 Exhibit Exhibits Cited in SOF, # 10 Exhibit Exhibits Cited in SOF, # 11 Exhibit Exhibits Cited in SOF, # 12 Exhibit Exhibits Cited in SOF, # 13 Exhibit Exhibits Cited in SOF, # 14 Exhibit Exhibits Cited in SOF, # 15 Exhibit Exhibits Cited in SOF, # 16 Exhibit Exhibits Cited in SOF)(Sherwin, Judith) (Entered: 03/06/2014)
383 MEMORANDUM statement,,, 382 by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler Plaintiffs' Post Hearing Brief (Attachments: # 1 Appendix Unpublished Cases)(Saeedi, Daniel) (Entered: 03/06/2014)
384 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for leave to file excess pages, 381 before Honorable Marvin E. Aspen on 3/11/2014 at 10:30 AM. (Sherwin, Judith) (Entered: 03/06/2014)
385 AMENDED memorandum, 383 Table of Authorites for Post Hearing Brief (Sherwin, Judith) (Entered: 03/06/2014)
386 AMENDED memorandum, 383 Table of Authorities for Plaintiffs' Post Hearing Brief (Sherwin, Judith) (Entered: 03/06/2014)
387 MINUTE entry before the Honorable Marvin E. Aspen:Plaintiffs' Motion for leave to file 381 instanter a post−hearing brief in excess of 25 pages and its proposed finding of facts in excess of 10 pages is granted. The motion hearing set for 3/11/14 is stricken.Judicial staff mailed notice (gl, ) (Entered: 03/07/2014)
388 MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for leave to file excess pages , MOTION by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler for extension of time to file response/reply as to amended document 385 , amended document 386 , statement,,, 382 , memorandum, 383 Post−Hearing Brief and Statement of Facts (Malowitz, Marni) (Entered: 03/14/2014)
389 NOTICE of Motion by Marni M. Malowitz for presentment of motion for leave to file excess pages, motion for extension of time to file response/reply, motion for relief,,,,,,,,, 388 before Honorable Marvin E. Aspen on 3/18/2014 at 10:30 AM. (Malowitz, Marni) (Entered: 03/14/2014)
390 MINUTE entry before the Honorable Marvin E. Aspen:Defendants' Motion (388) for leave to file post−hearing briefs not to exceed 28 pages in length; and for leave to file a statement of facts not to exceed 20 pages in length; and for an extension of time until 3/27/14 to submit their post−hearing brief and statement of facts, with Plaintiffs' reply due 4/10/14 is granted. The motion hearing set for 3/18/14 is stricken.Judicial staff mailed notice (gl, ) (Entered: 03/17/2014)
391 RESPONSE by Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler to Plaintiffs' Post−Hearing Brief (Ioppolo, Thomas) (Entered: 03/27/2014)
392 Defendants' Proposed Findings of Fact by Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler (Ioppolo, Thomas) (Entered: 03/27/2014)
393 Adoption of Defendants' Post Hearing Brief by Community Resource Alliance (Boyle, Patrick) (Entered: 03/31/2014)
394 TRANSCRIPT OF PROCEEDINGS held on January 8, 2014, before the Honorable Marvin E. Aspen. Court Reporter Contact Information: Laura LaCien, 312−408−5032, laura_lacien@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 42 of 44

Regarding the Availability of Transcripts of Court Proceedings.

04/10/2014
04/10/2014 04/11/2014
07/07/2014 07/07/2014 07/21/2014 07/22/2014 08/14/2014
08/14/2014 08/20/2014
08/20/2014 08/20/2014

Redaction Request due 4/28/2014. Redacted Transcript Deadline set for 5/8/2014. Release of Transcript Restriction set for 7/7/2014. (Lacien, Laura) (Entered: 04/07/2014)
395 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for leave to file excess pages Instanter (Attachments: # 1 Exhibit Plaintiffs' Reply in Support of their Post−Hearing Brief)(Sherwin, Judith) (Entered: 04/10/2014)
396 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for leave to file excess pages, 395 before Honorable Marvin E. Aspen on 4/15/2014 at 10:30 AM. (Sherwin, Judith) (Entered: 04/10/2014)
397 MINUTE entry before the Honorable Marvin E. Aspen:MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for leave to file excess pages, Instanter, Plaintiffs' Reply in Support of their Post−Hearing Brief is granted. The motion hearing scheduled for 4/15/14 is stricken.Judicial staff mailed notice (gl, ) (Entered: 04/11/2014)
398 MOTION by counsel for Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler to withdraw as attorney (Malowitz, Marni) (Entered: 07/07/2014)
399 NOTICE of Motion by Marni M. Malowitz for presentment of motion to withdraw as attorney 398 before Honorable Marvin E. Aspen on 7/24/2014 at 10:30 AM. (Malowitz, Marni) (Entered: 07/07/2014)
400 MEMORANDUM Opinion and Order. We deny Plaintiffs' motion for preliminary injunction 8 . We also lift the temporary restraining order previously entered on June 12, 2013 90 . It is so ordered. Signed by the Honorable Marvin E. Aspen on 7/21/2014. Notice mailed by judge's staff (ntf, ) (Entered: 07/21/2014)
401 MINUTE entry before the Honorable Marvin E. Aspen: Defendant Illinois Department of Human Services' motion to withdraw as counsel 398 is granted. Attorney Marni M. Malowitz is given leave to withdraw as counsel for Defendant. Motion hearing date of 7/24/14 is stricken. Notice mailed by judge's staff (ntf, ) (Entered: 07/22/2014)
402 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler for leave to file Leave to Add Additional Counsel for Plaintiffs (Sherwin, Judith) (Entered: 08/14/2014)
403 NOTICE of Motion by Judith Schwartz Sherwin for presentment of motion for leave to file, 402 before Honorable Marvin E. Aspen on 9/11/2014 at 10:30 AM. (Sherwin, Judith) (Entered: 08/14/2014)
404 NOTICE of appeal by Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler regarding orders 400 Filing fee $ 505, receipt number 0752−9783769. (Sherwin, Judith) (Entered: 08/20/2014)
405 NOTICE of Appeal Due letter sent to counsel of record regarding notice of appeal 404 . (smm) (Entered: 08/20/2014)
406 TRANSMITTED to the 7th Circuit the short record on notice of appeal 404 . Notified counsel (smm) (Entered: 08/20/2014)

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 43 of 44

08/20/2014 08/27/2014 09/15/2014 09/15/2014 01/06/2015
01/06/2015 01/08/2015
03/12/2015 03/12/2015 03/25/2015 04/13/2015
05/21/2015 11/06/2015 11/06/2015 11/06/2015 11/16/2015

407 ACKNOWLEDGMENT of receipt of short record on appeal regarding notice of appeal, 404 ; USCA Case No. 14−2850 (mr, ) (Entered: 08/21/2014)
408 MINUTE entry before the Honorable Marvin E. Aspen: Plaintiff's motion for leave to add additional counsel for Plaintiffs 402 is granted. Michael J. Quilin is given leave to file an appearance form on behalf of Plaintiffs. Motion hearing date of 9/11/14 is stricken. Notice mailed by judge's staff (ntf, ) (Entered: 08/27/2014)
409 TRANSMITTED to the USCA for the 7th Circuit the long record on appeal 404 (USCA no. 14−2850). (smm) (Entered: 09/15/2014)
410 USCA RECEIVED on 9/15/14 the long record regarding notice of appeal 404 . (smm) (Entered: 09/15/2014)
411 MOTION by Plaintiffs Barbara Cozzone−Achino, Elizabeth Gersbacher, David Iacono−Harris, Illinois League of Advocates for the Developmentally Disabled, Karen Kelly, Stan Krainiski, Murray Parents Association, Inc., Gail K. Myers, Robyn Pannier, Robert Pokorny, Lauren Stengler, Jeannie L. Williams, Rita Winkeler to withdraw as counsel by agreement of the parties (Reilly−Bates, Gabriel) (Entered: 01/06/2015)
412 NOTICE of Motion by Gabriel Reilly−Bates for presentment of motion to withdraw, 411 before Honorable Marvin E. Aspen on 1/15/2015 at 10:30 AM. (Reilly−Bates, Gabriel) (Entered: 01/06/2015)
413 MINUTE entry before the Honorable Marvin E. Aspen: Plaintiffs' agreed motion to withdraw as counsel 411 is granted. Motion hearing date of 1/15/15 is stricken. Attorneys Megan Kelly McGrath, Barton James O'Brien, Gabriel Reilly−Bates, Daniel Reza Saeedi, Sherri L. Thornton−Pierce, Sarah R Burky and Kathleen Fitzgerald Howlett are given leave to withdraw as counsel for Plaintiffs. Notice mailed by judge's staff (ntf, ) (Entered: 01/08/2015)
414 MOTION by counsel for Defendants Kevin Casey, Illinois Department of Human Services, Michelle R.B. Saddler to withdraw as attorney (Rawski, Laura) (Entered: 03/12/2015)
415 NOTICE of Motion by Laura Marie Rawski for presentment of motion to withdraw as attorney 414 before Honorable Marvin E. Aspen on 3/26/2015 at 10:30 AM. (Rawski, Laura) (Entered: 03/12/2015)
416 ORDER: Motion of Laura M. Rawski to withdraw as counsel for defendants 414 is granted. Signed by the Honorable Marvin E. Aspen on 3/25/2015.Mailed notice. (as, ) (Entered: 03/26/2015)
417 ORDER dated 04/13/2015 from the 7th Circuit regarding notice of appeal, 404 ; Appellate case no. : 14−2850. IT IS ORDERED that the motion is GRANTED. In the tendered amici curiae brief, the disclosure statement and table of contents are in the wrong order. See Fed. R. App. P. 28(a)(1), (2); 29(c)(1), (2). Additionally, the tendered brief's "facts" (and reference to the "statement of facts" in the appellees' brief) should be changed to "statement of the case." See Fed. R. App. P. 28(a)(6). A brief that complies with the filing rules, but which includes no other changes, is due by April 17, 2015. (as, ) (Entered: 04/14/2015)
418 ORDER dated 05/21/2015 from the USCA Seventh Circuit regarding notice of appeal, 404 ; Appellate case no. : 14−2850. IT IS ORDERED that the motion is GRANTED and the oral argument in this appeal scheduled for May 27, 2015, is VACATED.(lf, ). (Entered: 05/22/2015)
419 FINAL JUDGMENT (certified copy) of USCA dated 10/15/15 regarding notice of appeal, 404 ; USCA No. 14−2850. (gcy, ) (Entered: 11/09/2015)
420 OPINION from the USCA for the 7th Circuit; Argued 9/9/15; Decided 10/15/15 in USCA case no. 14−2850. (gcy, ) (Entered: 11/09/2015)
421 LETTER from the Seventh Circuit returning the record on appeal in USCA no. 14−2850. No record to return. (gcy, ) (Entered: 11/09/2015)
422 MINUTE entry before the Honorable Daniel G. Martin: In light of the recent Opinion from the USCA for the 7th Circuit 420 , all matters relating to the referral of this

Case: 1:13-cv-1300 As of: 01/09/2018 10:18 AM CST 44 of 44

12/10/2015 12/18/2015 01/21/2016 03/03/2016 03/03/2016

action having been concluded, the referral is closed and the case is returned to the assigned judge. Judge Honorable Daniel G. Martin no longer referred to the case.Mailed notice (lxs, ) (Entered: 11/16/2015)
423 MINUTE entry before the Honorable Marvin E. Aspen: Status hearing set for 1/14/2016 at 10:30 a.m. Mailed notice. (mgh, ) (Entered: 12/10/2015)
424 MINUTE entry before the Honorable Marvin E. Aspen: Status hearing previously set for 1/14/2016 at 10:30 a.m. is reset to 1/21/2016 at 10:30 a.m. Mailed notice. (mgh, ) (Entered: 12/18/2015)
425 MINUTE entry before the Honorable Marvin E. Aspen:Status hearing held on 1/21/2016 and continued to 3/3/2016 at 10:30 AM.Mailed notice (mad, ) (Entered: 01/22/2016)
426 MINUTE entry before the Honorable Marvin E. Aspen:Status hearing held on 3/3/2016. Joint oral motion for entry of agreed order of dismissal is granted. Mailed notice (mad, ) (Entered: 03/03/2016)
427 AGREED ORDER OF DISMISSAL Signed by the Honorable Marvin E. Aspen on 3/3/2016: Case dismissed with prejudice and with each side to bear their own costs and attorneys' fees. Civil case terminated.Mailed notice(mad, ) (Entered: 03/03/2016)