,.,.

Case: 1:05-cv-00544 Document #: 1 Filed: 01/31/05 Page 1 of 19 PageID #:1

F, LED

IN THR UNITED STATES DISTRICT COlJRT

JAN 312005

FOR THE NORTHERN DISTRICT OF ILLINC}!§::'CHAEL W. DOBBINS

EASTRRN DIVISION

• U.S. DISTRICT COURT

CHRISTOPHER BERTRAND, by and through )

his parents, Daniel and Inez Bertrand,

)

)

Plaintiff,

)

)

vs.

)

)

)

BARRY S. MARAM, in his official capacity

)

as Director of the lliinois Department or Puhlic )

Aid, CAROL L. ADAMS, in her ofticial capacity )

as Secretary of the Illinois Department of Human )

Services, .IEROLENE JOHNSON, in her ofticial )

capacity as Director ofthe Ofliee of Developmental)

Disabilities,

)

)

Defendants.

)

NO'05C 0544
JUrD=G. EI I ,.. ....
MAGISTRATE
JUDGECOAR
MAGISTRATE JUDGE KEYS

COMPLAINT FOR DRCLARATORY AND INJUNCTIVE RELIEF

Now comes the Plaintiff, by and through his attorney, Robert II. Farley, Jr., Ltd., and

complains of the Defendants as follows: INTRODlJCTlON
I. Under Section 1915(c) ofthe Social Security Act, the State of lIlinois provides funding for medicaid Home and Community-Based Services (HeBS) for adults with developmental disabilities or mental retardation. The HeRS program is provided as an alternative to institution<ll c"re, so that the developmentally disabled person does not have to reside in an institution in order to receive needed services. The HeBS program ofTers a variety of services to the developmentally disabled person, which include non-residential (day

Case: 1:05-cv-00544 Document #: 1 Filed: 01/31/05 Page 2 of 19 PageID #:2
programming / developmental training) services and residential services (habilitation services) .. The residential services component in the HCES program allows a developmentally disabkd persons to live in a group home. called a Community-Jntegrated Living Arrangement (CILA) provided by a licensed community developmental disabilities services agency where eight or fewer persons with developmental disabilities reside under supervision of the agency. Individuals receive a customized array of flexible residential habilitation or personal care supports and services in the home and in other community locations under the direction of a community support. t.eam.
2. The Plaintiff, Christopher Bertrand, is an adult with developmental disabilities. The Plaintiff was found eligible hy the Defendants to participate in the HCBS medicaid waiver program, and was accepted into the State of Illinois HCBS medic(lid waiver program. The Plaintiff does receive fundingl,')r somc services (non-residential) in the IICBS program, but not runding for all the services which are available in the HCES program, specifically a elLA residential program. The Defendants refuse to authorize funding for the Plaintiff to receive funding CILA services. The policy of the Defendants is to inform persons like the Plaintiff who arc developmentally disabled, that if a person wants residential services th.~n he or she can go live in an institLltion, which is called an Intermediate Care Facility for the Developmentally Disabled (ICI'IDD). (See Exhibit "A" -letter sent hy DHS to the par~nt ofa developmentally disabled person, described in paragraph 23 below). The Plaintiff does not want to live in an institution in order to rcceive residential services. The Plaintiff seeks funding for community hased residential services in the HCSS medicaid waiver program and medicaid requires the State of Illinois t.o provide funding for all the services contained in the HC13S program with
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Case: 1:05-cv-00544 Document #: 1 Filed: 01/31/05 Page 3 of 19 PageID #:3
"'reasonable promptness" and not just funding for some of the services. 3. The Defendants failure to provide Medicaid services to the Plaintiff with "reasonable
promptness" violates Plaintilrs rights conferred by the Medicaid Act, 42 U,S,C, Sec. 139ti(a) and implementing regulations. PlaintifThring this action pursuant to 42lJ.S.C. Section 1983 to enl(lree his federal statutory and constitutional rights. The Plaintiff seeks declaratory and injunctive reliel'to redress Defendants violation of the Medicaid Act.
.IURISDICTION & VRNIJR 4. lhis Comt hasjuri~didi()n over plaintiffs' federal law claims pursuant to 28 U.S.c. Secti()n~ 1331 and 1343. Venue is proper under 28 U.S.C. Sec. 1391(b).
PARTIES 5. (il) The Plaintiff, Christopher Bertrand, age 23, is developmentally disabled and lives with hi~ parents, Daniel and Inez Bertrand. The family are residents of Dolton, Illinois.
(b) The Plainti ff was found eligible by the Defendants to participate in the HCBS medicaid waiver program. In order lilr the Plaintiffto be eligible to participate in the HeUS medicaid waiver program, the PlaintifTs was first found by Suburban Access, Inc .. an Independent Service Coordination agency and an agent oCthe State of Illinois that the PlaintifTis eligible for an ICFIDD level of care funding which would also encompass a level of care funding for medicaid waiver services.
(c) The Plaintiff was accepted by the Defendants to receive funding for services in the HCRS medicaid waiver program.
(d) Under the HCRS medicaid waiver program, the Plaintiff does receive funding Ji.,r some services (non-residential) in the HeRS program. However, the Defendants refuse to
3

Case: 1:05-cv-00544 Document #: 1 Filed: 01/31/05 Page 4 of 19 PageID #:4
authorj,.e funding for thc Plaintiff to receive funding for re~idential services (residential habilitation) which is provided lor in the HCBS program, and which is called a CommunityIntegrated Living Arrangement (CILA)_
(el The Defendants, through Suburban Access, Inc., informed the Plaintifr on or about January 12,2005, that "Christopher's placement in New Hope'~ CILA has been denied by the Department ofI-Iuman Services (DHS)" (See Exhibit "B") DIIS inli.)flned Suhurban Access that "[ChristohpherJ docs not appear to meet priority population criteria and thus we are unahle to process the request for CILA funding." (Sec Exhibit "C") Prior to the denial of CILA limding, Suburhan Access, Inc. informed the Defendants that Christopher is in the medicaid waiver program, Home Rased Serviccs." (See Exhibit "0")_
(f) The Plaintiff does not wantlo live in an institution in order to receive rcsidential services. The Plainti ff ~eeks funding for community based residential services in the HCRS medicaid waivcr program for a CILA and medicaid requires the State of Illinois to provide f~lI1ding li)r all the services contained in the HCRS program, which includes residential scrvices (CILA) with "reasonable promptne~s" and not just funding for some of the scrvices. The Plaintiff ha~ a need for funding for CILA residential services and this need has been documented and found by Suhurhan Accc~~, Inc., an agent ofthe State 01" Illinois.
(g) The Defendants have denied the Plaintiff funding lilr elLA residential services_ (h) The Defendants have not in li.lrmed the Plaintiff nor his parents when or if he will receive funding for residential medicaid waiver services (CILA) in the toreseeable futurc. (i) Thc Plaintiff is entitled to funding ror residential medicaid waiver services (CILA) with reasonable promptness.
4

------------------------------_.
Case: 1:05-cv-00544 Document #: 1 Filed: 01/31/05 Page 5 of 19 PageID #:5
6. The Det,=,ndant, Barry S. Maram, is the Director of the Illinois Department of Public Aid (DPA) and is being sued in his orlicial capacity. The DPA is the designated Medical Assist,mce Single State Agency and is responsihle for the oversight and the administration of the Medicaid program under Title XIX of the Social Security Act, which includes programs for persons with mental retardation or developmental disabilities.
7. The Defendant, Carol L. Adams, as Secrctmy ofthe Illinois Department of Human Services (DIlS) is being sue in her official capacity.
(a) Pursuant to an interagency agreement with DPA, Defendant Adams office (DHS) is responsible for administering Illinois' State Medicaid Plan and the monitoring of Title XIX programs.
(b) OPA has ddegated the day-to-day-administration of the waiver program to DIrS via an interagency provider agreement which specifics the activities performed by each of the two agencies. Under the terms or this agreement, DIlS is responsible for administering the waiver according to the rules, regulations and procedures established by the DrA. DHS acts as the fiscal agent of DPA. DHS has in turn contracted with community-based agencies throughout the State to provide services to individuals in the wai ver. The point of entry into the program is the Pre-Admission Screening (PAS) Agency. A PAS Agent or Service Coordinator performs the initial functional assessment oi'lhe pcrson seeking services, dctcrmines the person's needs, and finds appropriate placement. Services provided in the waiver include non-residential (day programming I developmental training) and residential services (group home).
8. The Defendant, Jerolene Johnson, is the Director of!he Offiee of Developmental Disabilitics (ODD) which is operated within DHS ancl she is being sue in her official capacity.
5

Case: 1:05-cv-00544 Document #: 1 Filed: 01/31/05 Page 6 of 19 PageID #:6

The otIlee or Developmental Disabilities (ODD) is responsible for the control and

administration of the developmental disabilities program and its related Medicaid program in

Illinois.

STATEMENT OF FACTS

State of llIinois Medicaid Plan

9. Title XIX of the Social Security Act of 1965, 42 U.S.C. Section 1396 et. seq. (The

"Medicaid Act")' establishes Medicaid, a federal program administered by the States to provide

health care to low-income individuals. State p<lrticipalion in the Medicaid program is optional.

If the State ekcts to participate, it must submit a "State Plan" for approval by lhe Secretary ofthe

United States Department ol'Heallh and Human Services ("BHS").

10. The federal government reimburses a participating State for a portion of the cost of

medical services provided under its Medicaid program. To receive federal funds, the State's

program must comply with the requirements set forth in the Medicaid Act and in federal

implementing regulatiolls.

II. The Medicaid Act requires participating Stales to provide certain services to

individuals who qualify as "categorically needy" hased on their eligibility for assistance under

other federal programs. 42 U.S.c. Sections 1396a(a)(1 O)(A), I396d(a); 42 C.F.R. Sectioll 435.4.

The Act offers States lhe option of providing -- and receiving federal Medicaid reimbursement

fbr -- additional health care services Illr lhe categorically needy and for the "medically needy," whose income and assets are limited but are too high to qualify for "categorically needy" slatu~.

42 IJ.S.C. Sections 1396a(a)(1 O)(C); 42 C.F.R. Seclion 435.4. 12. One optional ~crviec that a participating State may provide is care for eligible

6

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Case: 1:05-cv-00544 Document #: 1 Filed: 01/31/05 Page 7 of 19 PageID #:7

individuals in an "intermediate care facility for the mentally retarded CICF/MR"). 42 U.S.C. Sections 1396d(a)(15), (d). Once a state commits to provide optional services, it must provide them in compliance with the requirements of the Medicaid Act.
13. (a) The Statc of Illinois participates in the Medicaid program and has filed a State Plan with the federal government. In the State Plan, the State ofTlJinois has committed to provide Medicaid services to hoth the categorically needy and the medically ncedy.
(b) The State ofTllinois Medicaid program includes ICF/MR or lCF/OD ("intermediate care facility for the developmentally disabled") services for eligible individuals. ICfIDD's provide residential, health, rehabilitative services and an active treatment program for individuals with developmental disabilities and mental retardation. The active treatment program includes habilitation, occupational therapy, speech therapy and physical therapy which is directed toward the acquisition of the behaviors ror the person to function with as much self determination and independence as possible and the prevention or deceleration of regression or loss of current optimal functional status. 42 U.S.C. Sec. 1396d(d); 42 C.F.R. Sec. 483.45; 42 C.FR Sec. 483.400(a)( I )(i)-Oi).
State of Illinois - Medicaid Waiver Plan for Adults with Developmental Disabilities 14. Alternatively, the State may provide - and receive federal reimhurscment for -Home and COllllllunity Ba~cd Scrvices for the mentally retarded ifthe state ohtain~ a "waiver" from the Secretary of HHS that permits the state to provide such services in place ofiCFiMR care. Id. at Section I396n(c)(I). Once a state commits to provide optional ~erviccs, it must provide them in compliance with the requirements of the Medicaid Act. 15. (a) The State of Illinois was granted approval by the Secretary of HHS to operate
7

Case: 1:05-cv-00544 Document #: 1 Filed: 01/31/05 Page 8 of 19 PageID #:8
"Home and Community Based-Services (HeRS) for Adults with Developmental Disabilities under Section 1915(c) or the Social Security Act to operatc a medicaid waiver program to provide services to individuals with mental retardation or dcvelopmental disabilities who would otherwise require al1 ICFlMR level of care. The use of the terms ICF/MR or reF/nn arc interchangeable.
(b) 011 .Iune 17.2002. the State of Illinois' request 10 rencw the IIeBS program was granted for a five year period ctTcctive July 1, 2002 through June 30, 2007. On August 22, 2003, HHS through thc Centers for Medicarc and Medicaid Services (eMS) ~pproved the State of Illinois CDlIS) request to amend the HeBS waiver f,)r Adults with Developmcntal Disabilities to increase the waiver capacity so that the State of Illinois can provide funding for up to 10,000 developmentally disabled persons. Since 2000 through the prescnt, the Defendants have never provided funding for all the persons who can be served in the TIlinois Medicaid Waiver Plan. For waiver year 2002 (7/1101-6/30102), the waiver capacity was 8,800 and 8,349 persons were served. For waiver year 2001, the waiver capacity was 8,250 and 8,000 persons wcre served. Jior waiver year 2000, the waiver capacity was 7,700 and 6,884 p~rsons were served.
(c) The State of Illinois HeBS w"iver program is to provide services to individuals who, but for the provision of su~h services, would require the level of care in an intermediate care facility for mentally retarded or persons with related conditions (TCF/MR).
(d) Pursuant to its waiver program, the State of Illinois was granted a waiver of section 1902(a)(I0)(I3) oftbe Act to target waiver services to the select group of "mentally retarded and developmentally disabkd" individuals who would be otherwise eligible for waiver services.
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Case: 1:05-cv-00544 Document #: 1 Filed: 01/31/05 Page 9 of 19 PageID #:9
(e) Pursuant to its waiver program, the State of Illinois was granted a waiwr or section J902(a)( I0)(8) of the Act to impose the additional targeting restriction of limiting waiver services to persons aged eighteen and older_
(f) Pursuant to its waiver program, the State of Illinois will not refuse to offer home and con11l111nity-hased services to any person for whom it can be reasonahly be expected that the cost of home and community-hased services furnished to that individual would exceed the cost or a level or care in an intermediate care facility for mentally retarded or persons with related conditions (ICF/MR)
(g) Pursuant to its wai ver program, the State did not request a waiver of the "statewideness" reqlliremcnts sct forth in section 1902(a)(1) of the Act.
(h) PllrSLlant to its waiver program, the State obtained a waiver of the amount, duration and scope of services requirement contained in section 1902(a)(10)(8) or the Act in order that services not otherwise available under tbe Illinois Medicaid State plan may be provided to individuals served on the waiver to the target group of persons who arc mentally retarded and developmcntally disabled and who are aged eighteen and older.
(i) Pursuant to its waiver program, persons accepted into the State of Illinois (HCBS) waiver program are entitled to receive the following services:
(i) Adult day health (adult day care). (ii) Habilitation, which includes residential habilitation (ClLA), day habilitation
and supported employm~nt serviccs. (iii) Environmental accessibility adaptations. (iv) Specialized medical ~quipmcnt and supplies.
9

Case: 1:05-cv-00544 Document #: 1 Filed: 01/31/05 Page 10 of 19 PageID #:10
(v) Extemkd State plan services, which includes physical therapy services, occupational therapy services, speech, hearing and language services.
(vi) Behavioral Services. (vii) Supported Living Services, which includes SLS team leader, personal
care/direct support, respite, skilled nursing, transportation and personal emergency response.
(i) Pursuant to its waiver program, the State of lllinois guarantees to mentally retarded and developmentally disabled individuals who are determined to be eligihle for "waiver'\ervices shall be given the choice or either institutional or home and community-based servIces.
(j) Pursuant to its waiver program, the State ofTllinois guarantees that absent the waiver program, persons served in the waiver would receive the appropriate type of Medicaidfunded institutional care that they require.
16. Waiver services are a cost effective alternative to the higher cost, less integrated institutional care in an ICF/MR or rCF/DO.
17. Individuals who are eligible for "waiver"services aTe also guaranteed a choice between those services and ICF/MR or TCFIDD care by the Medicaid Act itself, 42 U.S.C. Scction 1396n(c)(2)(C), and by othcr federal statutes lind regulations. Eligihle individuals are cntitled to choose home and community-based service~ that are more "integrated" than institutional care.
18. The PlaintilThas chosen to receive funding for home and community based waiver services as opposed to funding for institutional services.
19. As a participant in the federal Medicaid progmm and a recipient of federal funds, the
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Case: 1:05-cv-00544 Document #: 1 Filed: 01/31/05 Page 11 of 19 PageID #:11
State of Illinois is required to comply with the provisions of the Medicaid Act. 20. (a) Section 1396a(a)(8) orthe Medicaid 1\ct requires that a state Medicaid program
provide that medical assistance "shall be furnished with reasonable promptness to all eligible individuals." 42 U.S.C. Section 1396a(a)(8) (emphasis added).
(b) 1\ corresponding regulation provides that the responsible stale agency "must," among other things, "[I]urnish Medicaid promptly to recipienls without any delay caused by the
agency's administrative procedures," and "lcJontinue to furnish Medicaid regularly to all eligible
individuals until they are found to be indigible" 42 C.F.R. Sec. 435,930(a)-(b) (1996). Another regulation states that "[tJhe agency must establish time standard 1'01' determining eligibility and inform the applicant of what they are" 42 C.F.R. Sec. 435.911(a) (J 996). These period are nol to exceed "[nJinely days for applicants who apply for Medicaid on the basis of disability" or "[t]orty-five dayslix all other applicants," 42 CYR. Sec. 435.911(a)(I)-)(2) (1996). Moreover, the agency "must not use the lime Slandards" as "a waiting period," 42 CF.R. Sec. 435.91 )(e)(I) 1996.
21. Despite the Medicaid Act's clear command that eligible individuals receive funding for care and services with "reasonable promptness," the Defendants have failed to provide the funding for all the services which the Plaintiff is eligible to receive under the HellS program, specifically funding for a CII"A residential program.
22. The Center for Medicaid and Slate Operations ofHHS infornled the State Medicaid Directors, including the State of Illinois, in a letter dated January 10,200) that once a person is enrolled in Home and Community-llased Service~ (HCSS) waivers under Section 1915(c) ofthe Social Security Act, lhat a State is obliged to provide all people enrolled in the waiver with the
11

Case: 1:05-cv-00544 Document #: 1 Filed: 01/31/05 Page 12 of 19 PageID #:12
opportunity for access to all needed services covered by the waiver and the Medicaid State plan. eMS informed the Slates that they cannot develop separate and di~tinct service packages for waiver population subgroups wi thin a single waiver. The opportunity for ,lccess pertains to all services available under the waiver that an enrollee is determined to need. CMS informed the States that the denial of a needed and covered service within a waiver would have practical efteet or: (a) undem1ining an assessment of need, (b) countemlanding a plan of care/support b<tsed on such an assessment of need, (e) converting a feasible service into one that arbitrarily benefits some waiver pm1icipants lw( not others who may have an equal or greater need, and (d) jeop<trdi/.ing an individual's health or welfilre in some cases.
23. Since the Plaintiff has been found eligible for medicaid waiver services, the
Defendants havc claimed to limit iimding for ell ,A mcdicaid waiver residential services to only
those persons who satisfy the following emergency or priority criteria: (al individuals who are in
crisis situations (e.g., including but not limited to, persons who have lost their care-givers, persons who are in abusive or neglectful situations, etc.); (b) individuals who are aging (Jut of Division ofDD funded children's residential prognu11S; (e) individuals who are w<Lrds of the Department of Children and Family S~rvices and arc approaching age 18, and individuals who are aging out of children's residential services funded by the Division of Developmental Disabilities; (d) individuals who reside in state-operated developmental centers; (e) individuals with mental retardation who reside in state-operated mental health hospitals; (f) Bogard Class Members who requested to move to CILA during the concluding choice process; (g) individuals with aging care-givers, and (h) individuals who reside in private ICFsIDD.
24. In Drzewicki v. Maram, el. al., No. 04 C 7154 (N.D. Illinois), the plaintiff was a 25
12

Case: 1:05-cv-00544 Document #: 1 Filed: 01/31/05 Page 13 of 19 PageID #:13
..
year old person with developmental disabilities enrolled and accepted in the State of Illinois HellS medicaid waiver program and filed suit against the same derendants in this case, ~eeking to obtain funding for CTLA residential services developmentally disabled person. On January, 27,2005, pursuant to the parties l11ing a stipulation to voluntary dismiss the case with prejudice as the plaintitr; Drzewicki, was approved for ClLA funding which mooted plaintiffs claims, the District Court voluntarily dismissed the case. That the Defendants approved funding for the plainti IT in Drzewicki without requiring that plaintiff to satisfy the State's emergency or priority criteria for ClLA funding.
25. That the Defendants policies and practices of denying the Plaintiff' funding for elLA medicaid waiver residential services because he has not satisfied the emergency or priority criteria after the Plaintiff has been previously enrolled in the medicaid waiver program and when the PlaintilThas a need for elLA residential services, violates the provisions ofthc Medicaid Act.
26. Each Defendant, <\cling in his official capacity, is responsible for the control, implementation and administration of the State of Illinois obligations to the mentally retarded and the developmentally disabled.
COUNTl VIOLATION OF MEDICAID ACT, 42 U.S.c. SECTION 1396a(a),
AND 42 V.S.C SECTION 1983 27. The Pbintil'r repeats and incorporates by reference as though fully set forth here the facts contained in paragraphs I through 26 above. 28. The Defendants, while acting under color of law. have violated and are violating Plaintiffs' rights under 42 U.S.C. Section I396(a)(8) and 42 U.S.C. Section 1983 by failing to provide funding for Medicaid waiver services to the Plainti IT with reasonable promptness, even
13

Case: 1:05-cv-00544 Document #: 1 Filed: 01/31/05 Page 14 of 19 PageID #:14
..
though the PlaintifTis eligible to receive such services, 29, The Plaintiff has been accepted into the HCBS waiver program for funding for
services and the Plaintiff has satisfied all the criteria which is required wIder the waiver to receive funding for residential services, in that he within the target group ofpcrsons to be served in that he is mentally retarded and developmentally disabled and is aged eighteen and older.
3{), Thc Defendants, while acting undcr color of law, have violated and arc violating Plaintiffs rights under 42 USc. Section 1396n(c)(2)(C) by failing to implement his choices for Medicaid services ("freedom of choice") under the HCI3S program.
31. The Defendants, while acting under color oflaw, have violated and are violating Plaintiffs rights under 42 U.S,C, Section I 396n(c)(2)(C) by failing to implement his choices for Medicaid services ("freedom of choice") under the HCRS program with reasonable promptness.
32. As a result of the acts and omissions ofthe Delendants, the Plaintiff has surlered and continue to suffer physical, mental and emotional deprivation, induding but not limited to the loss of skills, the loss of opportunities to develop to their fullest potential, and the aggravation of existing physical, mental and emotional conditions. The Plaintiff will continue to sulfer such deprivations in the future absent relief li'om this Court.
REQUEST FQR RELIEF WHEREFORE, the Plaintiff respectfully request that this Court: (a) Enter Judgment in favor of the Plaintiff and hold that the Defendants' failure to provide funding for Medicaid services to the Plaintiff violates 42 U,S,c. Section 1983, and the Medic,lid Act, 42 lJS.C. Section 1396a(a), (b) Issue preliminary and permanent injunctive relief requiring the Defendants, their
14

Case: 1:05-cv-00544 Document #: 1 Filed: 01/31/05 Page 15 of 19 PageID #:15
successors in offiec, agcnts, employees, and all persons acting in concert with (hem, to offer to provide funding to the Plaintiff, the full range ofIIome and Community-Based waiver Services (HCRS) and other services for which he is eJigible within 90 days or some other specificallydefined, reasonably prompt period;
(c) Award Plaintiffs the costs of this action, including reasonable attorneys fees, pursuant to 42 U.S.c. Section 1988; and
(d) Award such other relief as the Court deems just and appropriate.

Robert H. Farley, Jr. Robert H. Parley, Jr., Ltd. 1155 S. Washington Street Naperville, lL 60540 Phone: 630-369-0103 Fax: 630-369-0195

RCZU;(if:'fl
lJ Attorney for Plaintiff

15

., .. ~.-~,-.-''''''"
Case: 1:05-cv-00544 Document #: 1 Filed: 01/31/05 Page 16 of 19 PageID #:16

George 1-1. RY~J1. Govitmoi'

Linda AuneiS a.ker, SecI.'lIry 100 South GJllnd Avenue, Easl • Sp,jnglietd. illinois 62762
40 I Soulh Clinlon SI,eel • Chicago, IIlInol. 60607
June 27,2002

John F. and Carol A. f)rzewlck] 537 N, Redfield Court
Park Ridge, Illinois 60060

Dear Mr. and Mrs. DrzeWkki:

I am responding to your letter of Hay 19, 2002, concerning your son Jason. Y:.u
5tale that an Intermediate Care Facility for IndivIduals with Developmental Disabilities (leFD!»
15 Inappropriate for him and he needs pla(ement In a Community Integrated LivIng Arrangement (ellA).

Ju we have Indicaled before, resources (or the ellA program are extremely limited.
ellA funding 15 only being provided to Indlvldual~ In emergency situations.

At tilis time, I would suggest that YOll continue to explore leFDDs. In the meantime, you may have hf!3rd Ihal the Supponed Living Program and rhe HOllie-Based Supporr Servkes
Program are being consolidated as of July I, 2002. The consolldaled program will slve
Supported Living parriclpanrs such as Jason considerably more flexibility than they have had In the past to fashloll a selvlce package that meelS their needs. You c31lllnd Ollt more abollt It from your caseworkers at Active Vldons .md Community Allernatives Ullllmlted.

MW:bc

Sincerely,
~dVllitf
Melissa Wright
Asmda Ie 01rector
omce of Developmental Disabilities

eel LInda Rence Daker, Secretary

Case: 1:05-cv-00544 Document #: 1 Filed: 01/31/05 Page 17 of 19 PageID #:17

~ W. /751h 51"'.'
Hom#itwaod. Illinois 60430

EI Teennlcsl Ms!stancs/Monl/or/ng

B()Q·{;(J7-5057

-

7OB"r9fJ..81oa

Fa~: '108·799-5363

Suburban
Access, Inc.

4415 W Harrison StrGe', SUite 410 HiII.lds. IlIin,,", 6016i!
Phone: 10B--449-1257 Fax: 7(J1J-'f49~7226 UJO: 708-799-9f77
ChJ1d & Family Connecticns (Wflst)
(JB8-S66-a228
708·• • •-06~$ F;u~ 708-449·7071

January 12.2005
Inez !3ertrand I 5214 Rlackstone Dolton. IL 60419
Rc: Christopher Berland
Mrs. Bctirand, As I mentioned over the phone, Christopher's placement in New Hope's elLA
has been denied hy the Department of Human Services (DHS).I am sending a copy of the letter sent to my office by DHS. Pleas~ feel free to contact me with any further questions.

Sincerely,
~~.-
Brct StokesbelTY, QMRl',ISC

ACCREDITED BY CARF ... THE REHABlt.ITATlON ACCREDITATION COMMISSION for Communlly Support CuemltnsgemllllllSt/tvl"" Coordlnsllon
ssrviflg Ihese suburban Cook County Townships: Bloom .. Bremen • Calumet - U,monl 4111 Orland • Palos • Rich • Thornton • Worth Berwyn - Cicero -- LfiJydfln 4111 Lyolls • Oak Park .. Proviso ,. River ForBst • RIverside II SNckney

Case: 1:05-cv-00544 Document #: 1 Filed: 01/31/05 Page 18 of 19 PageID #:18 •

,
Rod R. BlagoleYlch. Govemor

100 W. Randolph • Chicago, Illinois 60601

RECEIVED
JAN 1 0 2005
SUBURBAN ACCESS. INC. carol L. Adams. Ph.D., SilCrtJ/Bry

Deb Stanley Suburban Access

c

925 W. 175'" Street

Homewood,IL60430

.1~n"aI)· 6, 2004

Re: Christopher Rertrand

Dear Deb
The enclosed funding request packet is being returned 10 Suburban Access for the following reason:
Based on the packet's cover letter, this individual does '191 appear 10 meel priority population criteria and thus we are unable /(I proC(!,'s Ihe reqUf!stfor ClLAfimd;ng. Should the
individual 's situalion change in the fUlure or if there Is additional information which has not
been currently provided, please feel free to resubmit the. paCkelfor consideration.

Should you have any questions or concerns regarding this request packet, plcase give me (312.814.3417) or Bruce Anderson (312.814.3394) a call. Thanks.

South Suburban Network Facilitator
\,

., ,
•

Case: 1:05-cv-00544 Document #: 1 Filed: 01/31/05 Page 19 of 19 PageID #:19

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 Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 1 of 25 PageID #:23

AG
F 1 L E n IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT oF ILLINOis EASTERN DIVISION

CHRISTOPHER BERTRAND, by and through )

his parents, Daniel and Inez Bertrand, FRANK )

PATTERSON, JR., by and through his parents, )

Frank and Janice Patterson, Sr., individually and )

on behalf of a class,

)

)

Plaintiffs,

)

)

vs.

)

)

)

BARRY S. MARAM, in his official capacity

)

as Director of the Illinois Department of Public )

Aid, CAROL L. ADAMS, in her official capacity )

as Secretary of the Illinois Department of Human )

Services, JEROLENE JOHNSON, in her official )

capacity as Director of the Office of Developmental )

Disabilities,

)

)

Defendants.

)

fE9 · J ZOOS WH
MICHAEL W. DOBBINS CLERK, U.S. DISTRICT COURT

No.

05 C 0544

JUDGECOAR

MAGISTRATE KEYS

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Now comes the Plaintiffs, by and through his attorney, Robert H. Farley, Jr., Ltd., and

files the following amended complaint against the Defendants as follows:

INTRODUCTION

I. Under Section 1915(c) of the Social Security Act, the State of Illinois provides

funding for medicaid Home and Community-Based Services (HCBS) for adults with

developmental disabilities or mental retardation. The HCBS program is provided as an

alternative to institutional care, so that the developmentally disabled person does not have to

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 2 of 25 PageID #:24
reside in an institution in order to receive needed services. The HCBS program offers a variety of services to the developmentally disabled person, which include non-residential (day programming I developmental training) services and residential services (habilitation services).. The residential services component in the HCBS program allows a developmentally disabled persons to live in a group home, called a Community-Integrated Living Arrangement (CILA) provided by a licensed community developmental disabilities services agency where eight or fewer persons with developmental disabilities reside under supervision of the agency. Individuals receive a customized array of flexible residential habilitation or personal care supports and services in the home and in other community locations under the direction of a community support team.
The HCBS program offers 10,000 developmentally disabled persons the right to receive community based (non-institutional) services and approximately 6,245 of the 10,000 persons enrolled in the HCBS program receive CILA residential services.
2. The Plaintiff, Christopher Bertrand, is an adult with developmental disabilities. The Plaintiff was found eligible by the Defendants to participate in the HCBS medicaid waiver program, and was accepted into the State of Illinois HCBS medicaid waiver program. The Plaintiff does receive funding for some services (non-residential) in the HCBS program, but not funding for all the services which arc available in the HCBS program, specifically a CILA residential program. The Defendants refuse to authorize funding for the Plaintiff to receive funding for CILA services. The policy ofthe Defendants is to inform persons like the Plaintiff who are developmentally disabled, that if a person wants residential services then he or she can go live in an institution, which is called an Intermediate Care Facility for the Developmentally
2

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 3 of 25 PageID #:25
Disabled (ICF/DD). (See Exhibit "A" - letter sent by DHS to the parent of a developmentally disabled similar person, described in paragraph 32 below). The Plaintiff does not want to live in an institution in order to receive residential services. The Plaintiff seeks funding for community based residential services in the HCBS medicaid waiver program and medicaid requires the State of Illinois to provide funding for all the services contained in the HCBS program with "reasonable promptness" and not just funding for some of the services.
3. The Plaintiff, Frank Patterson, Jr., is an adult with developmental disabilities. The Plaintiff was found eligible by the Defendants to participate in the HCBS medicaid waiver program, and was accepted into the State of Illinois HCBS medicaid waiver program. The Plaintiff does receive funding for some services (non-residential) in the HCBS program, but not funding for all the services which are available in the HCBS program, specifically a CILA residential program. The Defendants refuse to authorize funding for the Plaintiff to receive funding for CILA services. The policy of the Defendants is to inform persons like the Plaintiff who are developmentally disabled, that if a person wants residential services then he or she can go live in an institution, which is called an Intermediate Care Facility for the Developmentally Disabled (ICF/DD). (See Exhibit "A"- letter sent by DHS to the parent of a developmentally disabled similar person, described in paragraph 32 below). The Plaintiff does not want to live in an institution in order to receive residential services. The Plaintiff seeks funding for community based residential services in the HCBS medicaid waiver program and medicaid requires the State of Jllinois to provide funding for all the services contained in the HCBS program with "reasonable promptness" and not just funding for some of the services.
4. This is a statewide class action brought on behalf of all developmentally disabled
3

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 4 of 25 PageID #:26
persons who are eligible and who have been funded to receive medicaid waiver services in the Home and Community-Based Services (HCBS) program for adults with developmental disabilities and have been denied funding for additional waiver services offered in the HCBS program.
5. The Defendants failure to provide Medicaid services to the Plaintiff with "reasonable promptness" violates Plaintiffs rights conferred by the Medicaid Act, 42 U.S.C. Sec. 1396(a) and implementing regulations. Plainti!Tbring this action pursuant to 42 U.S.C. Section 1983 to enforce his federal statutory and constitutional rights. The Plaintiff seeks declaratory and injunctive relief to redress Defendants violation of the Medicaid Act.
JURISDICTION & VENUE 6. This Court has jurisdiction over plaintiffs' federal law claims pursuant to 28 U.S.C. Sections 1331 and 1343. Venue isproperunder28 U.S.C. Sec. 1391(b).
PARTIES 7. (a) The Plaintiff, Christopher Bertrand, age 23, is developmentally disabled and lives with his parents, Daniel and Inez Bertrand. The family arc residents of Dolton, Illinois.
(b) The Plaintiff was found eligible by the Defendants to participate in the HCBS medicaid waiver program. In order for the Plaintiff to be eligible to participate in the HCBS medicaid waiver program, the Plaintifl"s was first found by Suburban Access, Inc., an Independent Service Coordination agency and an agent of the State of Illinois that the Plaintiff is eligible for an ICF/DD level of care funding which would also encompass a level of care funding for medicaid waiver services.
(c) The Plaintiff was accepted by the Defendants to receive funding for services in the
4

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 5 of 25 PageID #:27
HCBS medicaid waiver program. (d) Under the HCBS medicaid waiver program, the Plaintiff does receive funding for
some services (non-residential) in the HCBS program. However, the Defendants refuse to authorize funding for the Plaintiff to receive funding for residential services (residential habilitation) which is provided for in the HCBS program, and which is called a CommunityIntegrated Living Arrangement (CILA).
(e) The Defendants, through Suburban Access, Inc., informed the Plaintiff on or about January 12, 2005, that "Christopher's placement in New Hope's CILA has been denied by the Department of Human Services (DHS)." (See Exhibit "B") DHS informed Suburban Access that "[Christohpher] does not appear to meet priority population criteria and thus we are unable to process the request for CILA funding." (See Exhibit "C") Prior to the denial of CILA funding, Suburban Access, Inc. informed the Defendants that Christopher is in the medicaid waiver program, Horne Based Services." (Sec Exhibit "D").
(f) The Plaintiff does not want to live in an institution in order to receive residential serv!Ces. The Plaintiff seeks funding for community based residential services in the HCBS medicaid waiver program for a CILA and medicaid requires the State of Illinois to provide funding for all the services contained in the HCBS program, which includes residential services (CILA) with "reasonable promptness" and not just funding for some of the services. The Plaintifi has a need for funding for CILA residential services and this need has been documented and found by Suburban Access, Inc., an agent of the State of Illinois.
(g) The Defendants have denied the Plaintiff funding for CILA residential services. (h) The Defendants have not informed the Plaintiff nor his parents when or if he will
5

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 6 of 25 PageID #:28
receive funding for residential medicaid waiver services (CILA) in the foreseeable future. (i) The Plaintiff is entitled to funding for residential medicaid waiver services (CILA)
with reasonable promptness. 8. (a) The Plaintiff, Frank Patterson, Jr., age 29, is developmentally disabled and lives
with his parents, Frank and Janice Patterson, Sr. The family are residents of Oak Park, Illinois. (b) The Plaintiff was found eligible by the Defendants to participate in the HCBS
medicaid waiver program. In order for the Plaintiff to be eligible to participate in the HCBS medicaid waiver program, the Plaintiffs was first found by Suburban Access, Inc., an Independent Service Coordination agency and an agent of the State of Illinois that the Plaintiff is eligible for an ICF/DD level of care funding which would also encompass a level of care funding for medicaid waiver services.
(c) The Plaintiff was accepted by the Defendants to receive funding for services in the HCBS medicaid waiver program.
(d) Under the HCBS medicaid waiver program, the Plaintiff does receive funding for some services (non-residential) in the IICBS program. However, the Defendants refuse to authorize funding for the PlaintitJto receive funding for residential services (residential habilitation) which is provided for in the HCBS program, and which is called a CommunityIntegrated Living Arrangement (CILA).
(e) The Defendants, through Suburban Access, Inc., informed the Plaintiff on or about the Summer of 2003, that the Plaintiffs placement in Oak-Leyden's CILA had been denied by the Department of Human Services (DHS). Suburban Access informed the Plaintiff that CILA funding was denied because he did not meet the priority or emergency criteria for a CILA
6

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 7 of 25 PageID #:29
placement. Upon information and belief, prior to the denial of CILA funding, Suburban Access, Inc. informed the Defendants that the Plaintiff is in the medicaid waiver program, Home Based Services.
(f) The Plaintiff does not want to live in an institution in order to receive residential services. The Plaintiff seeks funding for community based residential services in the HCBS medicaid waiver program for a CILA and medicaid requires the Stale of Illinois to provide funding for all the services contained in the HCBS program, which includes residential services (CILA) with "reasonable promptness" and not just funding for some of the services. The Plaintiff has a need for funding for CILA residential services and this need has been documented and found by Suburban Access, Inc., an agent of the State of lllinois.
(g) The Defendants have denied the Plaintiff funding for CILA residential services. (h) The Defendants have not informed the Plaintiff nor his parents when or if he will receive funding for residential medicaid waiver services (CILA) in the foreseeable future. (i) The Plaintiff is entitled to funding for residential medicaid waiver services (CILA) with reasonable promptness. 9. The Defendant, Barry S. Maram, is the Director of the Illinois Department of Public Aid (DPA) and is being sued in his official capacity. The DPA is the designated Medical Assistance Single State Agency and is responsible for the oversight and the administration of the Medicaid program under Title XIX of the Social Security Act, which includes programs for persons with mental retardation or developmental disabilities. 10. The Defendant, Carol L. Adams, as Secretary of the Illinois Department of Human Services (DHS) is being sue in her official capacity.
7

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 8 of 25 PageID #:30
(a) Pursuant to an interagency agreement with DPA, Defendant Adams office (DHS) is responsible for administering Illinois' State Medicaid Plan and the monitoring of Title XIX programs.
(b) DPA has delegated the day-to-day-administration of the waiver program to DHS via an interagency provider agreement which specifies the activities performed by each of the two agencies. Under the terms of this agreement, DHS is responsible for administering the waiver according to the rules, regulations and procedures established by the DPA. DI-IS acts as the fiscal agent of DPA. DHS has in turn contracted with community-based agencies throughout the State to provide services to individuals in the waiver. The point of entry into the program is the Pre-Admission Screening (PAS) Agency. A PAS Agent or Service Coordinator performs the initial functional assessment of the person seeking services, determines the person's needs, and finds appropriate placement. Services provided in the waiver include non-residential (day programming I developmental training) and residential services (group home).
II. The Defendant, Jerolene Johnson, is the Director of the Office of Developmental Disabilities (ODD) which is operated within DHS and she is being sue in her official capacity. The Office of Developmental Disabilities (ODD) is responsible for the control and administration of the developmental disabilities program and its related Medicaid program in Illinois.
CLASS ACTION ALLEGATIONS 12. Plaintiffs bring this action as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. 13. The Class consists of the following:
8

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 9 of 25 PageID #:31
All developmentally disabled persons or mentally retarded persons aged eighteen and older who are enrolled and receiving services funded under the Illinois Medicaid Home and Community-Based Services (HCBS) program and who are seeking additional funding for more services offered in the HCBS program.
14. The Class is so numerous that joinder of all persons is impracticable. Plaintiffs believe that the class probably numbers well over hundreds and hundreds of persons. Of the approximately I 0,000 persons who can be served in the HCBS program, approximately 6,245 persons receive CILA residential services, which also include day programming services.
Approximately 3,300 persons receive day programming services (developmental training) and are denied funding for CILA residential services unless they satisfy the Defendant's emergency or priority criteria for CILA. Of the 3,300 persons receiving day programming services, 2,850 persons receive limited funding for services and are denied funding for both CILA residential services and funding for other day programming services, such as physical therapy services, occucaptional therapy services, speech, hearing and language services; behavioral services, supported living services which includes personal/direct support, respite, skilled nursing, transportation and personal emergency response. Approximately 450 of the 3,300 persons receiving funding for day programming services, also receive more intensive day programming services as stated in the previous sentence.
Upon information and belief, approximately 400-500 funding slots remain open in the HCBS program as the Defendants have historically not served all the persons in the HCBS program and the Plaintiffs claim that all developmentally disabled persons are entitled to receive funding for services up to the cap limit of I0,000.
9

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 10 of 25 PageID #:32
15. The Plaintiffs are adequate representatives of the class because they sutTer from deprivations identical to those of the class members and have been denied the same federal rights that they seek to enforce on behalf of the other class members. The Plaintiffs will fairly and adequately represent the interests of the other class members, many of whom are unable to pursue claims on their own behalf as the result of their disabilities. Plaintiffs' interest in obtaining injunctive relief for the violations of constitutional rights and privileges are consistent with and not antagonistic to those of any person within the class.
16. The claims of the class members raise common questions of fact, including whether individuals eligible for Medicaid waiver services are being funded with all services offered in the HCBS program with reasonable promptness.
The claims of the class members also raise common questions of law, including the interpretations of the Medicaid Aid; and
a) Whether the class members, after being enrolled in the Illinois medicaid waiver program (HCBS) are entitled to receive funding for all the services which he or she needs in the program with reasonable promptness under 42 U.S.C. 1396(a)(8); and
b) Whether the class members, after being enrolled in the Illinois medicaid waiver program (HCBS) are entitled to his or her choices for Medicaid services ("freedom of choice") under the HCBS program under 42 U.S.C. 1396n(c)(2)(C).
The common questions of fact and law predominate over questions affecting only individual class members.
17. A class action is superior to other available methods for the fair and efficient adjudication of the controversy in that:
10

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 11 of 25 PageID #:33
(i) A multiplicity of suits with consequent burden on the courts and defendants should be avoided.
(ii) It would be virtually impossible for all class members to intervene as partiesplaintiffs in this action.
STATEMENT OF FACTS State of Illinois Medicaid Plan
18. Title XIX of the Social Security Act of 1965,42 U.S.C. Section 1396 et. seq. (The "Medicaid Act"), establishes Medicaid, a federal program administered by the States to provide health care to low-income individuals. State participation in the Medicaid program is optional. If the State elects to participate, it must submit a "State Plan" for approval by the Secretary of the United States Department of Health and Human Services ("HHS").
19. The federal government reimburses a participating State for a portion of the cost of medical services provided under its Medicaid program. To receive federal funds, the State's program must comply with the requirements set forth in the Medicaid Act and in federal implementing regulations.
20. The Medicaid Act requires participating States to provide certain services to individuals who qualifY as "categorically needy" based on their eligibility for assistance under other federal programs. 42 U.S.C. Sections 1396a(a)(lO)(A), 1396d(a); 42 C.F.R. Section 435.4. The Act offers States the option of providing -- and receiving federal Medicaid reimbursement for-- additional health care services for the categorically needy and for the "medically needy," whose income and assets are limited but are too high to qualifY for "categorically needy" status. 42 U.S.C. Sections 1396a(a)(l O)(C); 42 C.F.R. Section 435.4.
21. One optional service that a participating State may provide is care for eligible II

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 12 of 25 PageID #:34
individuals in an "intermediate care facility for the mentally retarded ("'CP/MR"). 42 U.S.C. Sections 1396d(a)(l5), (d). Once a state commits to provide optional services, it must provide them in compliance with the requirements of the Medicaid Act.
22. (a) The State of Illinois participates in the Medicaid program and has filed a State Plan with the federal government. In the Stale Plan, the Stale of Illinois has committed to provide Medicaid services to both the categorically needy and the medically needy.
(b) The State of Illinois Medicaid program includes ICP/MR or ICP/DD ("intermediate care facility for the developmentally disabled") services for eligible individuals. ICP/DD's provide residential, health, rehabilitative services and an active treatment program for individuals with developmental disabilities and mental retardation. The active treatment program includes habilitation, occupational therapy, speech therapy and physical therapy which is directed toward the acquisition of the behaviors for the person to function with as much self determination and independence as possible and the prevention or deceleration of regression or loss of current optimal functional status. 42 U.S.C. Sec. 1396d(d); 42 C.P.R. Sec. 483.45; 42 C.P.R. Sec. 483.400(a)(l)(i)-(ii).
State of Illinois- Medicaid Waiver Plan for Adults with Developmental Disabilities 23. Alternatively, the State may provide- and receive federal reimbursement for -Home and Community Based Services for the mentally retarded if the state obtains a "waiver" from the Secretary of HI-IS that permits the state to provide such services in place of lCF/MR care. I d. at Section 1396n(c)(I). Once a state commits to provide optional services, it must provide them in compliance with the requirements of the Medicaid Act. 24. (a) The State of Illinois was granted approval by the Secretary ofHHS to operate
12

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 13 of 25 PageID #:35
"Home and Community Based-Services (HCBS) for Adults with Developmental Disabilities under Section 1915(c) of the Social Security Act to operate a medicaid waiver program to provide services to individuals with mental retardation or developmental disabilities who would otherwise require an TCF/MR level of care. The use of the terms 1CF/MR or 1CF/DD are interchangeable.
(b) On June 17, 2002, the State of Illinois' request to renew the HCBS program was granted for a five year period effective July I, 2002 through June 30, 2007. On August 22, 2003, HHS through the Centers for Medicare and Medicaid Services (CMS) approved the State of Illinois (DHS) request to amend the HCBS waiver for Adults with Developmental Disabilities to increase the waiver capacity so that the State of Illinois can provide funding for up to I 0,000 developmentally disabled persons. Since 2000 through the present, the Defendants have never provided funding for all the persons who can be served in the lllinois Medicaid Waiver Plan. For waiver year 2002 (7/1/01-6/30/02), the waiver capacity was 8,800 and 8,349 persons were served. For waiver year 2001, the waiver capacity was 8,250 and 8,000 persons were served. For waiver year 2000, the waiver capacity was 7,700 and 6,884 persons were served.
(c) The State of Illinois HCBS waiver program is to provide services to individuals who, but for the provision of such services, would require the level of care in an intermediate care facility for mentally retarded or persons with related conditions (ICF/MR).
(d) Pursuant to its waiver program, the State of Illinois was granted a waiver of section 1902(a)(IO)(B) ofthe Act to target waiver services to the select group of "mentally retarded and developmentally disabled" individuals who would be otherwise eligible for waiver serv1ces.
13

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 14 of 25 PageID #:36
(e) Pursuant to its waiver program, the State of Illinois was granted a waiver of section 1902(a)( I 0)(13) of the Act to impose the additional targeting restriction of limiting waiver services to persons aged eighteen and older.
(f) Pursuant to its waiver program, the State of Illinois will not refuse to offer home and community-based services to any person for whom it can be reasonably be expected that the cost of home and community-based services furnished to that individual would exceed the cost of a level of care in an intermediate care facility for mentally retarded or persons with related conditions (ICF/MR)
(g) Pursuant to its waiver program, the State did not request a waiver of the "statewideness" requirements set forth in section 1902(a)( I) of the Act.
(h) Pursuant to its waiver program, the State obtained a waiver ofthe amount, duration and scope of services requirement contained in section 1902(a)(l O)(B) of the Act in order that services not otherwise available under the Illinois Medicaid State plan may be provided to individuals served on the waiver to the target group of persons who are mentally retarded and developmentally disabled and who are aged eighteen and older.
(i) Pursuant to its waiver program, persons accepted into the State of Illinois (HCBS) waiver program are entitled to receive the following services:
(i) Adult day health (adult day care). (ii) Habilitation, which includes residential habilitation (CILA), day habilitation
and supported employment services. (iii) Environmental accessibility adaptations. (iv) Specialized medical equipment and supplies. (v) Extended State plan services, which includes physical therapy services,
14

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 15 of 25 PageID #:37
occupational therapy services, speech, hearing and language services. (vi) Behavioral Services. (vii) Supported Living Services, which includes SLS team leader, personal
care/direct support, respite, skilled nursing, transportation and personal emergency response.
(i) Pursuant to its waiver program, the State of Illinois guarantees to mentally retarded and developmentally disabled individuals who are determined to be eligible for "waiver"services shall be given the choice of either institutional or home and community-based serv1ces.
(j) Pursuant to its waiver program, the State of Illinois guarantees that absent the waiver program, persons served in the waiver would receive the appropriate type of Medicaidfunded institutional care that they require.
25. Waiver services are a cost effective alternative to the higher cost, less integrated institutional care in an ICF/MR or ICF/DD.
26. Individuals who are eligible for "waiver"services are also guaranteed a choice between those services and ICF/MR or ICF/DD care by the Medicaid Act itself, 42 U.S.C. Section 1396n(c)(2)(C), and by other federal statutes and regulations. Eligible individuals are entitled to choose home and community-based services that are more "integrated" than institutional care.
27. The Plaintiffs have chosen to receive funding for home and community based waiver services as opposed to funding for institutional services.
28. As a participant in the federal Medicaid program and a recipient of federal funds, the State of Illinois is required to comply with the provisions of the Medicaid Act.
15

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 16 of 25 PageID #:38
29. (a) Section 1396a(a)(8) of the Medicaid Act requires that a state Medicaid program provide that medical assistance "shall be furnished with reasonable promptness to all eligible individuals." 42 U.S.C. Section 1396a(a)(8) (emphasis added).
(b) A corresponding regulation provides that the responsible state agency "must," among other things, "[flurnish Medicaid promptly to recipients without any delay caused by the agency's administrative procedures," and "[c]ontinue to furnish Medicaid regularly to all eligible individuals until they are found to be ineligible." 42 C.F.R. Sec. 435.930(a)-(b) (1996). Another regulation states that "[t]he agency must establish time standard for determining eligibility and inform the applicant of what they are." 42 C.F.R. Sec. 435.9ll(a) (1996). These period are not to exceed "[n]inety days for applicants who apply for Medicaid on the basis of disability" or "lfJorty-five days for all other applicants." 42 C.F.R. Sec. 435.9ll(a)(l)-)(2) (1996). Moreover, the agency "must not use the time standards" as "a waiting period." 42 C.F.R. Sec. 435.91l(e)(l) 1996.
30. Despite the Medicaid Act's clear command that eligible individuals receive funding for care and services with "reasonable promptness," the Defendants have failed to provide the funding for all the services which the Plaintiff is eligible to receive under the HCBS program, specifically funding for a CILA residential program.
31. The Center for Medicaid and State Operations of HHS informed the State Medicaid Directors, including the State of Illinois, in a letter dated January 10, 2001 that once a person is enrolled in Home and Community-Based Services (HCBS) waivers under Section 1915(c) of the Social Security Act, that a State is obliged to provide all people enrolled in the waiver with the opportunity for access to all needed services covered by the waiver and the Medicaid State plan.
16

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 17 of 25 PageID #:39
CMS infom1ed the States that they cannot develop sepalate and distinct service packages for waiver population subgroups within a single waiver. The opportunity for access pertains to all services available under the waiver that an enrollee is determined to need. CMS informed the States that the denial of a needed and covered service within a waiver would have practical effect of: (a) undermining an assessment of need, (b) countermanding a plan of care/support based on such an assessment of need, (c) converting a feasible service into one that albitralily benefits some waiver participants but not others who may have an equal or greater need, and (d) jeopardizing an individual's health or welfare in some cases.
32. Since the Plaintiffs have been found eligible for medicaid waiver services, the Defendants have claimed to limit funding for CILA medicaid waiver residential services to only those persons who satisfy the following emergency or priority criteria: (a) individuals who ale in crisis situations (e.g., including but not limited to, persons who have lost their care-givers, persons who are in abusive or neglectful situations, etc.); (b) individuals who ale aging out of Division ofDD funded children's residential programs; (c) individuals who are wards of the Depaltment of Children and Family Services and are approaching age 18, and individuals who are aging out of children's residential services funded by the Division of Developmental Disabilities; (d) individuals who reside in state-operated developmental centers; (e) individuals with mental retaldation who reside in state-operated mental health hospitals; (f) Bogald Class Members who requested to move to CILA during the concluding choice process; (g) individuals with aging Cale-givers, and (h) individuals who reside in private ICFs/DD.
33. In Drzewicki v. Maram, et. a/., No. 04 C 7154 (N.D. Illinois), the plaintiff was a 25 year old person with developmental disabilities enrolled and accepted in the State of Illinois
17

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 18 of 25 PageID #:40
HCBS medicaid waiver program and filed suit against the same defendants in this case, seeking to obtain funding for CILA residential services developmentally disabled person. On January, 27, 2005, pursuant to the parties filing a stipulation to voluntary dismiss the case with prejudice as the plaintiff, Drzewicki, was approved for CILA funding which mooted plaintiffs claims, the District Court voluntarily dismissed the case. That the Defendants approved funding for the plaintiff in Drzewicki without requiring that plaintiff to satisfy the State's emergency or priority criteria for CILA funding.
34. That the Defendants policies and practices of denying the Plaintiffs funding for CILA medicaid waiver residential services because they have not satisfied the emergency or priority criteria after the Plaintiff has been previously enrolled in the medicaid waiver program and when the Plaintiffs have a need for CILA residential services, violates the provisions of the Medicaid Act.
35. Each Defendant, acting in his official capacity, is responsible for the control, implementation and administration of the State of Illinois obligations to the mentally retarded and the developmentally disabled.
COUNT I VIOLATION OF MEDICAID ACT, 42 U.S.C. SECTION 1396a(a),
AND 42 U.S.C SECTION 1983 36. The Plaintiffs repeats and incorporates by reference as though fully set forth here the facts contained in paragraphs I through 35 above. 37. The Defendants, while acting under color oflaw, have violated and are violating Plaintiffs rights under 42 U.S.C. Section 1396(a)(8) and 42 U.S.C. Section 1983 by failing to provide fi.mding for Medicaid waiver services to the Plaintiffs with reasonable promptness, even
18

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 19 of 25 PageID #:41
though the Plaintiffs are eligible to receive such services. 38. The Plaintiffs have been accepted into the HCBS waiver program for funding for
services and the Plaintiffs have satisfied all the criteria which is required under the waiver to receive funding for residential services, in that they are within the target group of persons to be served in that they are mentally retarded and developmentally disabled and are aged eighteen and older.
39. The Defendants, while acting under color of law, have violated and are violating Plaintiffs rights under 42 U.S.C. Section 1396n(c)(2)(C) by failing to implement their choices for Medicaid services ("freedom of choice") under the HCBS program.
40. The Defendants, while acting under color of law, have violated and are violating Plaintiffs rights under 42 U.S.C. Section 1396n(c)(2)(C) by failing to implement their choices for Medicaid services ("freedom of choice") under the HCBS program with reasonable promptness.
41. As a result of the acts and omissions of the Defendants, the Plaintiffs have suffered and continue to suffer physical, mental and emotional deprivation, including but not limited to the loss of skills, the loss of opportunities to develop to their fullest potential, and the aggravation of existing physical, mental and emotional conditions. The Plaintiffs will continue to suffer such deprivations in the future absent relief from this Court.
REQUEST FOR RELIEF WHEREFORE, the Plaintiffs respectfully request that this Court: (a) Certify the Plaintiff class of "All developmentally disabled persons or mentally retarded persons aged eighteen and older who are enrolled and receiving services funded under the Illinois Medicaid Home and Community-Based Services (HCBS) program and who are
19

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 20 of 25 PageID #:42
seeking additional funding for more services offered in the HCBS program. (b) Enter Judgment in favor of the Plaintiffs and hold that the Defendants' failure to
provide funding for Medicaid services to the Plaintiff violates 42 U.s:c. Section 1983, and the
Medicaid Act, 42 U.S.C. Section 1396a(a). (c) Issue preliminary and permanent injunctive relief requiring the Defendants, their
successors in office, agents, employees, and all persons acting in concert with them, to offer to provide funding to the Plaintiffs, the full range of Home and Community-Based waiver Services (HCBS) and other services for which they are eligible within 90 days or some other specificallydefined, reasonably prompt period;
(d) Award Plaintiffs the costs of this action, including reasonable attorneys fees, pursuant to 42 U.S. C. Section 1988; and
(e) Award such other relief as the Court deems just and appropriate.
R~tfully ;~it
Utvv!f/Jr
Robert H. Farley, Jr. Robert H. Farley, Jr., Ltd. 1155 S. Washington Street Naperville, IL 60540 Phone: 630-369-0103 Fax: 630-369-0195
20

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 21 of 25 PageID #:43

George l-t. Ryan, Governor

Linda Rene~ Saker, Secretsry 100 Soulh Grand Avenue, Easl • Springfield, Illinois 62762
401 Soulh Clinlon Slree1 • Chicago, Illinois 60607
June 2 7, 2002

John F. and Carol A. Drzewlckl 537 N. Redfield Court
Park Ridge,, Illinois 60060

Dear Mr. and Mrs. Dn:ewlckl:

I am responding £0 your Jeuer of 1-f.ly 19, 2002, concerning your son Jason. Y: '"
stare rhar an lnrermediate Care Facility for Individuals whh Developmental Disabilities (ICFDI>)
Is inapproprlare for him and he needs placement In a Community Integrated Llv!nr. Arrangement (CILA).

As we have Indicated before, resources for rhe CILA program are extremely limited. CILA funding Is only being provided ro Individuals In emereency situations.
At this time, I would suggest rhat you continue to explore ICFDDs. In rhe meantime, you may have heard rhar rhe Supported Living Program and the Home· Based Support Services Program are being consolidated as of July I, 2002. The consolidated program will give Supported Living partlclpanrs such as Jason considerably more Hexibillry rhan they have had in !he past to fashion a service package lhat meeiS their needs. You can find out more about It from your caseworkers at Active Vldons and Community Alternatives Unllmlred.
Sincerely,
~~ov~rr

MW:bc cc: Linda Renee Baker, Secretary

Associate Director Office of Developmental Disabilities

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 22 of 25 PageID #:44

El T9CIInlcal Ass!slance/Monltorlng

8M-!J()N;tJ57

·

708-799-8708

Fn: 108-799-5363 .

Suburban
Access, Inc.

4415 W Harrison Street, Sulfe 410 Hillside, Illinois 60162
Phone; 708-449-7257
FaK: 708-449-7228 TOO: 708-799-9177
Child & Family Conneclions (Wesl)
888-566-8228 708-449·0625
Fax: 708--449·7071

January 12, 2005
Inez !3ertrand · 15214 Blackstone Dolto~. IL 60419
Re: Christopher Berland
Mrs. 8c11rand, As I mentioned over the phone, Christopher's placement in New Hope's CILA
has been denied by the Department of Human Services (DHS). I am sending a copy of the letter sent to my office by DHS. Please feel free to contact me with any further questions.

Sincerely,
~-/~
Bret Stokesberry, QMRP,ISC

C-C: f. EVenrl'!-(Um.v/loj'e)
ACCREDITED BY CARF ••• THE REHABIL.ITATION ACCREDITATION COMMISSION
for Communlly Support Ca•emanagement/Serv/ce Coordination semng these suburban Cook Coun/y Townships:
Bloom • Bremen • Calumet " Lamoni • Orland • Palos • Rich • Thornton • Worth Berwyn • Cicero • Leyden • Lyons • Oak Park "' Proviso • RIVer Forest • Riverside • Stickney

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 23 of 25 PageID #:45

.

'

Rod R. Blagojovlch, Governor

100 W. Randolph • Chicago, Illinois 60601

RECEIVED
JAN 1 0 2005
SUBURBAN ACCESS. INC. Carol L Adams, Ph.D., Secrt~tary

Deb Stanley Suburban Access

c

925 W. 175"' Street

Homewood, IL 60430

January 6, 2004

Re: Christopher Bertrand

Dear Deb
The enclosed funding request packet is being returned to Suburban Access for the following reason:
Based on the packet's cover letter, this individual does npt appear to meet priority populatior1 criteria and thus we are unable to process the request for CJU Jimding. Should the
individual's situation change in the future or if there is additional information which has not
been currently provided, please feel free to resubmit the packet.for consideration.

Should you have any questions or concerns regarding lhis request packet, please give me (312.814.3417) or Bruce Anderson (312.814.3394) a catl. Thanks.

South Suburban Network Facilitator
\.

Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 24 of 25 PageID #:46

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Case: 1:05-cv-00544 Document #: 5 Filed: 02/01/05 Page 25 of 25 PageID #:47
,,
CERTIFICATE OF SERVICE
I, Robert H. Farley, Jr., Attorney for the Plaintiffs, deposes and states that he filed the Amended Complaint for Declaratory and Injunctive Relief with the Clerk of the U.S. District Court on February I, 2005 and served a copy upon the Defendants offices as follows:
Barry S. Maram Director of the Illinois Department of Public Aid 100 W. Randolph IO'h Floor Chicago, IL 60601
Carol L. Adams Secretary of the Illinois Department of Human Services 100 W. Randolph 6'h Floor Chicago, IL 6060 I
Jerolene Johnson Director of the Office of Developmental Disabilities I 00 W. Randolph 6'h Floor Chicago, IL 6060 I

Robert H. Farley, Jr. Robert H. Farley, Jr., Ltd. 1155 S. Washington Naperville, IL 60540 Phone: 630-369-0103 Fax: 630-369-0195

cz~!/d[J
Attorney for the PlaintJff
21

 
 AO 45C0(aResve. 5:/815):J0ud5g-mcenvt-i0n a0C5iv4il4CaDseocument #: 77 Filed: 09/25/06 Page 1 of 1 PageID #:1036
United States District Court
Northern District of Illinois
Eastern Division

Christopher Bertrand, et al. v.
Barry S. Maram, et al.

JUDGMENT IN A CIVIL CASE Case Number: 05 C 0544

G Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury rendered its verdict.
O Decision by Court. This action came to hearing before the Court. The issues have been heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that for the reasons set out in the Memorandum Opinion and Order of September 25, 2006, Defendants’ Motion for Summary Judgment [37] is granted and Plaintiffs’ Motion for Summary Judgment [32] is denied. Defendants’ Motion to Strike Certain Exhibits [42] is denied. Plaintiffs’ Motion for Class Certification [8] is denied as moot. The Court enters judgment in favor of Defendants Barry S. Maram, Carol L. Adams, and Jerolene Johnson and against Plaintiffs Christopher Bertrand and Frank Patterson, Jr.

Date: 9/25/2006

Michael W. Dobbins, Clerk of Court
________________________________ /s/ Gwen Rosegay, Deputy Clerk

 
 Case: 1:05-cv-00544 Document #: 85 Filed: 09/05/07 Page 1 of 13 PageID #:1093
r •"'. ~"'l'
;rq.J ·.,.;;.. :.l

lJn tbe
mntteb ~tates QC:ourt of ~ppeals
jfor tbe i;leuentb QCtrl(irit I L E D

No. o6-3705

·

SEP 0 5 ZOO? T

$vP[J5a..CfJ

CHRlSTOPHER BERTRAND, bY his parentfMICHAEL W. DOBBINS

Inez Bertrand and Daniel Bertrand, OJ.iRK, U.S. DISTRICT COURT

FRANK PATTERSON, JR., by his parents

Janice Patterson and Frank Patterson, St.,

Plaintiffs-Appellants, v.

BARRY S. MARAM. Directot, Illinois Department of Healthcare and Family Servi.cea, et al.,
Defendants-Appellees.

Appeal from the United State• Diotrict Court for the Northero Di~t of Illinoio, Eastero Division. No.(II&C 54~irg:lnla M. Kendall, Judge.
Cf..:;,~. s,...,qc-tt:f-+---
ARoUED MAY 3, 2007-DECIDED JULY 24, 2007

Before EAsTERBROOK, Chief Judge, and FLAUM and RIPPLE, Circuit Judges.
EASTERBROOK, Chief Judge. Christopher Bertrand and Frank Patterson are developmentally disabled adults who want residential habilitation services under the Medicaid program in Illinois. "Residential habilitation" is a. set of services provided in the applicant's home (or another residence) by nurses and other professionals. The

Case: 1:05-cv-00544 Document #: 85 Filed: 09/05/07 Page 2 of 13 PageID #:1094

2

No. 06-3705

goal is to see that the person remains safe and healthy; it is an alternative to institutionalization for those unable to care for themselves. Illinois covers the costs of residential habilitation and similar services through its Community Integrated Living Arrangement (CILA) program, part of the state's Home and Community-Based Services (HCBS) program.
The federal government does not require states to provide CILA services as a condition of participation. Indeed, federal law does not even allow states to provide such services as part of the Medicaid program (though states may do so separately, at their own expense) unless they apply for and receive a waiver of Medicaid's normal rules. The possibility of waiver, see 42 U.S. C. §1396n(b), was extended to home and community-based services by 42 U.S.C. §1396n(c)(l):
The Secretary may by waiver provide that a State plan approved under this subchapter may include as "medical assistance" under such plan payment for part or all of the cost of home or communitybased services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan.
Illinois applied for and received a waiver entitling it to federal reimbursement for such services provided to 10,000 people.
When Bertrand and Patterson applied for residential habilitation services, however, they were turned down.

Case: 1:05-cv-00544 Document #: 85 Filed: 09/05/07 Page 3 of 13 PageID #:1095

No. 06-3705

3

Although both Bertrand and Patterson "require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded", and each already received some services under the HCBS program, each was told that he did not satisfy the state's "priority population criteria" for residential habilitation under the CILA sub-program. These are the criteria:
(1) individuals who are in crisis situations (e.g., including but not limited to, persons who have lost their caregivers, persons who are in abusive or neglectful situations); (2) individuals who are wards of the Illinois Department of Children and Family Services and are approaching the age of 22 and individuals who are aging out of children's residential services funded by the Office of Devel· opmental Disabilities; (3) individuals who reside in State-Operated Developmental Centers; (4) Bogard class members, i.e., certain individuals with developmental disabilities who currently reside in a nursing facility; (5) individuals with mental retardation who reside in State-Operated Mental Health Hospitals; (6) individuals with aging caregivers; and (7) individuals who reside in private ICFs/MR or ICFsffiD.
Those not on the list cannot be reimbursed for residential habilitation even if medical providers are willing to offer that service at a price Illinois is willing to pay. Bertrand applied for reconsideration, arguing (via his parents as next friends) that he comes within category (6). He lives with his parents, both of whom are nearing retirement. The state reversed its decision; Bertrand has been receiving residential habilitation services at state expense since May 24, 2005. But Patterson remains outside the CILA sub-program.
Plaintiffs maintain that the state's administration of its HCBS program violates 42 U.S. C. §1396a(a)(8), which says

Case: 1:05-cv-00544 Document #: 85 Filed: 09/05/07 Page 4 of 13 PageID #:1096

4

No. 06-3705

that every state plan must "provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals".
Illinois argued that Bertrand's claim should be dismissed as moot. The district judge disagreed, remarking that Bertrand had moved for class certification before he was accepted into the CILA program. Paradoxically, however, the judge then refused to act on Bertrand's motion, ruling that class treatment is itself moot because Illinois is entitled to prevail-not, as the state principally argued, because there is no private right of action under §1396a(a}(8}, but because the Secretary of Health and Human Services approved the state's "priority population criteria," and anyone not on the list is not "eligible" for services as §1396a(a)(8) uses that term. 2006 U.S. Dist. LEXIS 68935 (N.D. Ill. Sept. 25, 2006).
The district court mishandled the issues related to class certification. Bertrand and Patterson filed this suit seeking to represent a class. Fed. R. Civ. P. 23(c}(l) directs district courts to grant or deny class certification "early" in the litigation. Yet the district court bypassed that subject, ruled on the merits almost two years after the suit had been filed, and then insisted that the class does not matter. "Early" is a plastic term that affords latitude to district judges in case management, but "never" is not within any plausible understanding of "early."
Judge Kendall, who finally resolved plaintiffs' claim, was assigned to the case about a year after its commencement and is not responsible for her predecessor's failure to make an "early" decision about the class. That the subject may have fallen between stools is unfortunate, however. Prompt decision is essential, as Bertrand's situation shows. Board of School Commissioners of Indianapolis v.

Case: 1:05-cv-00544 Document #: 85 Filed: 09/05/07 Page 5 of 13 PageID #:1097

No. 06-3705

5

Jacobs, 420 U.S. 128 (1975), holds that, if a class representative's personal claim becomes moot after certification, then the suit may continue-for the class as a whole retains a live claim. But if the would-be representative's claim becomes moot before certification, then the case must be dismissed, see Sosna v. Iowa, 419 U.S. 393 (1975), unless someone else intervenes to carry on as the representative. Parole Commission v. Geraghty, 445 U.S. 388 (1980).
Apparently the district court saw class suits as opportunities for one-way intervention: if the representative plaintiff wins, then class certification extends the victory to a larger group. That was a common view before the 1966 amendments to Rule 23, which were designed to divorce class certification from the merits. See the Committee Note to the 1966 amendment. After the 1966 amendments, treatment of plaintiffs and defendants is supposed to be symmetric, which is possible only if a class is certified (or not) before decision on the merits. Class-action status must be granted (or denied) early not only to avoid problems with mootness, and provide an opportunity for interlocutory review, see Fed. R. Civ. P. 23(f), but also to clarify who will be bound by the decision. The larger the class, the more the litigants may invest in discovery and briefing to ensure that the case is decided correctly. Until everyone knows who will, and who will not, be bound by the outcome, it is difficult to make informed decisions about how the case should proceed.
The district judge may have equated the precedential effect of a decision with its preclusive effect, but the two differ. Without a certified class, any other Medicaid applicant is free to file another suit and present the same arguments; decisions of distJ:ict courts do not block successive litigation by similarly situated persons. Although decisions of appellate courts have broader authority, in the absence of class certification any other applicant may

Case: 1:05-cv-00544 Document #: 85 Filed: 09/05/07 Page 6 of 13 PageID #:1098

6

No. 06-3705

start over and try to diBtinguish the adverse precedent. Likewise, if the first plaintiff wins and the court of appeals affirms, the agency may try to distinguish the adverse precedent, or deny its authoritative status, when denying relief to a similarly situated applicant. It takes a class certification to produce a conclusive resolution in one proceeding. Compare United States u. Mendoza, 464 U.S. 154 (1984), with Califano u. Yamasaki, 442 U.S. 682 (1979).
In the event, however, no class was certified, and neither side seeks review of that decision. Bertrand's claim therefore must be dismissed as moot. The diBtrict court noted the motion for class certification but missed the vital qualification that the suit never became a class action. In a handful of situations, exemplified by Deposit Guaranty National Bank u. Roper, 445 U.S. 326 (1980), and Primax Recoueries, Inc. v. Seuilla, 324 F.3d 544, 54647 (7th Cir. 2003), class certification may follow the defendant's actual or attempted satisfaction of the wouldbe representative's demand; the Court explained in Deposit Guaranty National Bank that this proviso is essential to prevent defendants from buying off all potential class representatives by meeting their demands, one at a time, and thus preventing effectual relief to a larger class of victims. Nothing of the sort occurred here-and, to repeat, no class has been certified, so even ifBertrand had been furnished CILA services for strategic reasons this would not juatify allowing him to continue litigating in hia own name. He lacks a stake in the outcome, and his claim must be dismissed as moot.
Section 1396a(a)(8), on which Patterson (the remaining plaintiff) relies, does not provide a private right of action. Neither does any other arguably relevant provision in the Medicaid Act. This leads Patterson to rely on 42 U.S.C. §1983 and the approach of Maine u. Thiboutot, 448 U.S. 1 (1980); §1983 allows the enforcement of federal law (such

Case: 1:05-cv-00544 Document #: 85 Filed: 09/05/07 Page 7 of 13 PageID #:1099

No. 06-3705

7

as the Medicaid statute) against state actors (such as the Illinois Department ofHealthcare and Family Services). To this Illinois responds that Medicaid is a funding statute that gives states an option rather than placing them under an obligation. If the state has not kept its end of the bargain, the argument goes, then the remedy is to cut off the funds rather than to order specific performance. The Medicaid Act provides some express private remedies; using§ 1983 to augment them would upset the bargain that the state struck when it joined the program, the state insists. Illinois relies particularly on Gonzaga University v. Doe, 536 U.S. 273 (2002), which reached just such a conclusion with respect to the Family Education Rights and Privacy Act, another federal statute that uses the lure of funds to achieve a national objective.
At least two courts of appeals have held since Gonzaga University, however, that §1396a(a)(8) creates personal rights that are enforceable as long as the state continues to accept federal money. Sabree v. Richman, 367 F. 3d 180 (3d Cir. 2004); Bryson v. Shumway, 308 F.3d 79, 88-89 (1st Cir. 2002). Another circuit reached the same conclusion with respect to §1396a(a)(10), which is materially identical to §1396a(a)(8). See S.D. v. Hood, 391 F.3d 581, 603 (5th Cir. 2004). Sabree, the most thorough of these decisions, observes that before Gonzaga University the Court had held that one portion of the Medicaid Act may be enforced via §1983, see Wilder v. Virginia Hospital Ass'n, 496 U.S. 498 (1990), and that Gonzaga University did not overrule Wilder. Although Gonzaga University may have taken a new analytical approach, courts of appeals must follow the Supreme Court's earlier holdings until the Court itself overrules them. This circuit has itself assumed after Gonzaga University that §1396a(a)(8) may be enforced via §1983. See Bruggeman v. Blagojevich, 324 F.Sd 906, 910-11 (7th Cir. 2003) (reaching the merits ofa claim under §1396a(a)(8) without discussing the availability of a

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No. 06-3705

private right of action, although after mentioning Go~aga
University in another connection).
What one could say in response is that none of these decisions dealt with the application of §1396a(a)(8) to a supplemental state program approved under a waiver. The idea behind §1396a(a)(8) is that states must comply with all Medicaid obligations: to enter the program at all is to agree to supply medical services for every eligible person. Once Congress created the waiver program in 1981, however, that situation changed. Today a state may propose to cover applicants in some parts of its territory but not others, or to place a limit on the number of persons who receive treatment. "The Secretary, to the extent he finds it to be cost-effective and efficient and not inconsistent with the purposes of this subchapter, may waive such requirements of section 1396a of this title (other than subsection (s)) (other than sections 1396a(a)(15), 1396a(bb), and 1396a(a)(10)(A) of this title insofar as it requires provision of the care and services described in section 1396d(a)(2)(C) of this title) as may be necessary for a State" to accomplish certain objectives. 42 U.S.C. §1396n(b). When Illinois adopted its HCBS program, it particularly asked the Secretary to waive the requirement that all comers be accepted, and the Secretary agreed. The HCBS program in Illinois will pay for no more than 10,000 persons.
There are three ways to keep within that limit. One is the price system, which is not possible under the Medicaid Act. The second is a queue: Everyone who wants to participate joins a line and is admitted as current participants move to some other state, are institutionalized, or die. The third is a triage device. Illinois chose the third way, through its "priority population criteria." Patterson contends that §1396a(a)(8) obliges the state to use the second device-and when there are unfilled slots available to put the next medically eligible person into them. But

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No. 06-3705

9

it is far from clear to us that dictating a means to implement a limited-enrollment program is a function of §1396a(a)(8).
A cap on enrollment serves fiscal rather than medical objectives, saving money for both state and federal governments; one reason why the Secretary's approval is necessary for these optional programs is to ensure that states don't make commitments that cost the national government more than it is willing to spend. When legislation such as §1396n(b) and (c)(l) is designed to save money rather than deliver subsidized care to everyone, §1396a(a)(8) is a poor fit~and it is correspondingly more attractive to structure litigation with the Secretary as the defendant, so that the agency that made the waiver decision may be asked whether the state's program accurately carries out the conditions negotiated with the federal government. A state is entitled to use "priority population criteria" as an entry-control device if the Secretary has approved that use. But it is difficult to determine the Secretary's views in a proceeding against the state. A request that the Secretary terminate funding would avoid the empty-chair problem.
Because the parties have not briefed the question whether §1983 supplies a private right of action to enforce claims under §1396a(a)(8) in the context of waiver, we think it best to proceed as in Bruggeman: to assume that there is such an entitlement, while leaving resolution to the future. A private right of action is not a component of subject-matter jurisdiction, see Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005), so this is a permissible approach.
May Illinois use the priority population criteria as a triage device? Patterson insists that the answer d.oes not matter, because when he applied there were openings among the allocated 10,000 slots in the HCBS pro-

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No. 06-3705

gram-and, what iB more, Patterson himself occupied one of them. An earlier deciBion had admitted Patterson to the program, though not to the set of CILA services that he most desired. In fiscal 2004, for example, there were 138 open slots in HCBS, and in fiscal 2003 there had been 230. It does not follow from this, however, that everyone with a developmental disability should be admitted immedi~ ately. Abolish the priority population criteria and a queue would develop. People with relatively weak needs for this service would receive it just because they applied first, while others with grave needs would be put off pending an opening. The only way to ensure that slots are available for those highest on the priority list is to hold some of them open at all times. Keeping 1% or 2% (100 to 200) of the slots available seems a prudent precaution on behalf
of those with the greatest need.
When asked at oral argument whether Patterson could be removed from the CILA or HCBS program, after admission, in order to free up a slot for someone with a better claim to the resources, his lawyer gave a negative answer. According to counsel, anyone provided a particular service is in for life; any comparison between the needs of those already in and those making new applications is forbidden. That would lead some people to demand entry to the HCBS program, even if they did not require its services, to ensure the availability of CILA services later should a need (or a desire) develop. If that is so, then the only sensible approach is the one Illinois has chosen. Priorities must be established, and some slots must be kept open at all times to avoid turning away people "in crisis situations" (priority 1) and other high-need appli-
cants. This is true not only for the home and community-
based services as a whole but also for each component of that umbrella category. Medicaid makes each separate component of the umbrella program the subject of a "medical need'' requirement, see 42 C.F.R. §440.230(d),

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11

which makes a great deal of sense. A conclusion that a person could benefit from one aspect of HCBS does not mean that the person is a good candidate for every kind of related service.

Patterson does not contest the state's assignment of priorities or contend that his needs are equivalent to those of people who meet the "priority population criteria." His argument, as we have said, is that the state must use an unsorted queue and provide services to everyone who could get some benefit from them. Yet a queue would be problematic under §1396a(a)(8)-for recall that this statute demands provision of services "with reasonable promptness". Taking everyone with a developmental disability, in order of application, would defeat prompt admission for those who would receive the greatest benefit.

The record establishes that the Centers for Medicare and

Medicaid Services (CMS), the bureau within the Depart-

ment of Health and Human Services that decides whether

to grant states' applications for waiver of the Medicaid

rules, knew about the criteria that Illinois proposed to use.

The state's application says point blank that "[f]or residen-

tial services, the State gives service priority to eligible

persons according to the following priority population

criteria ...". The application does not reveal whether CMS

appreciated that Illinois would use these criteria to

exclude some applicants from CILA services, and CMS did

not write an opinion explaining its understanding of the

state's program. An affidavit from one of the state's

program administrators says that "[t]he Priority Popula-

tion Criteria were discussed with the CMS review team

during the review process". What was said, concretely? The

record does not reveal the answer-but then plaintiffs'

counsel did not follow up with a deposition that might have

i

produced the information. Plaintiffs have not offered any

evidence tending to establish that CMS granted the state's

request in ignorance of how Illinois employs the priority

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No. 06-3705

population criteria. Because plaintiffs bear the burden of persuasion, we must take it that the state's approach is agreeable to CMS.
And on that understanding the case is almost over. Another statute on which Patterson relies, 42 U.S.C. §1396n(c)(2)(C), offers him no assistance. This subsection says that persons entitled to care must be "informed of the feasible alternatives, if available under the waiver, at the choice of the individuals". Patterson does not say that he has been kept ignorant of options open to him. His argument is that CILA services should be "available," but this subsection does not make any particular option "available" to anyone. It just requires the provision of information about options that are available. ·
Each side invokes Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984); United States v. Mead Corp., 533 U.S. 218 (2001); and Skidmore v. Swift & Co., 323 U.S. 134 (1944). Illinois maintains that the agency's approval is entitled to Chevron deference. Plaintiffs insist, to the contrary, that a letter that CMS circulated in 2001 should receive Chevron deference (or at least Mead-Skidmore respectful consideration). To this the state replies that letters, not being regulations, should not play any role at all. (Just in case we disagree, the state insists that its use of the "priority population criteria" is consistent with the letter.) All of this is byplay. It would matter if the "priority population criteria" were something that the state had invented after receiving the waiver from CMS, and we had to decide whether the state's new approach was consistent with the statute and regulations. But that's not what happened; CMS conaidered the "priority population criteria" before granting the waiver. A state does not violate §1396a(a)(8) by using the criteria that formed (part of) the baais for requesting a waiver under §1396n(c)(1).
AFFIRMED

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No. 06-3705

13

A true Copy:

Teste:

 
 Bertrand v. Maram, Not Reported in F.Supp.2d (2006) Med & Med GD (CCH) P 301,912
2006 WL 2735494 United States District Court,
N.D. Illinois, Eastern Division.
Christopher BERTRAND, et al., Plaintiffs, v.
Barry S. MARAM, et al., Defendants.
No. 05 C 0544. | Sept. 25, 2006.
Attorneys and Law Firms
Robert Hugh Farley, Jr., Robert H. Farley, Jr., Ltd., Naperville, IL, for Plaintiffs.
Karen Elaine Konieczny, Christopher Samuel Gange, John E. Huston , Illinois Attorney General’s Office, Chicago, IL, for Defendants.
Opinion
MEMORANDUM OPINION AND ORDER
VIRGINIA M. KENDALL, District Judge.
*1 Plaintiffs Christopher Bertrand and Frank Patterson Jr. (“Plaintiffs”) are developmentally disabled adults eligible to participate in the Illinois Medicaid Home and Community-Based Services (“HCBS”) waiver program. The HCBS program allows developmentally disabled adults to receive needed services outside of an institution. Plaintiffs seek to represent a class of developmentally disabled persons or mentally retarded persons who are enrolled and receiving services funded under the HCBS waiver program and who are seeking additional funding for more services offered in the HCBS program.
Plaintiffs bring suit against Barry S. Maram, in his official capacity as Director of the Illinois Department of Healthcare and Family Services (formerly the Illinois Department of Public Aid); Carol L. Adams, in her official capacity as Secretary of the Illinois Department of Human services; and Jerolene Johnson, in her official capacity as Director of the Division of Developmental Disabilities (together “Defendants”). Plaintiffs complain that Defendants violated and are violating their rights

under 42 U.S.C. §§ 1396a(a)(8) and 1983 by failing to provide funding for Medicaid waiver services with reasonable promptness, even though Plaintiffs are eligible to receive such services. Specifically, Plaintiffs seek funding for Community Integrated Living Arrangement (“CILA”) services under the waiver. Defendants have denied Plaintiffs the requested funding because Plaintiffs do not meet the Priority Population Criteria set out in the waiver. The parties have cross-moved for summary judgment. Because the Centers for Medicare and Medicaid Services (“CMS”) knowingly approved Illinois’ use of the Population Priority Criteria to limit CILA residential services under the waiver, Defendants have not failed to furnish Plaintiffs medical assistance with the reasonable promptness to which Plaintiffs are entitled under 42 U.S.C. § 1396a(a)(8). Accordingly, based on the undisputed facts, Defendants are entitled to judgment as a matter of law.

Statement of Facts
The Medicaid program, established under Title XIX of the Social Security Act, 42 U.S.C. § 1396, et seq., is a joint federal-state program which provides medical assistance to low-income individuals. “Administration [of the Medicaid program] is entrusted to the Secretary of Health and Human Services, who in turn exercises his authority through the Centers for Medicare and Medicaid Services.”1 Arkansas Dept. of Health and Human Services v. Ahlborn, 126 S.Ct. 1752, 1758 (2006). States are not required to participate in the Medicaid program, but if a state elects to participate, it must comply with federal statutes and regulations. See 42 U.S.C. § 1396a(a)(10). Each state participating in the Medicaid program must provide certain mandatory services. See 42 C.F.R. § 440.210; 440.220. Other Medicaid services are optional at the discretion of each state. See 42 C .F.R. § 440.225. Once a State commits to provide optional services, it must provide them in compliance with the requirements of the Medicaid statute. States participating in the Medicaid program are required to develop a comprehensive plan for the provision of services and the plan must be approved by CMS. See 42 U.S.C. § 1396a(b); 42 C.F.R. § 430.14-15.

1

Prior to 2001, CMS was known as the Health Care

Financing Administration (“HCFA”). See 66 Fed.Reg.

1

Bertrand v. Maram, Not Reported in F.Supp.2d (2006)
Med & Med GD (CCH) P 301,912
35437, 2001 WL 746215.
*2 The State of Illinois participates in the Medicaid program and has filed a State Plan with the federal government. (Defendants’ Response to Plaintiffs’ Local Rule 56.1(a)(3) Statement of Material Facts, ¶ 36 (“Plfs.’ 56.1, ¶ __”).) The State of Illinois Medicaid program has opted to include intermediate care facilities for mentally retarded (“ICF/MR”) and developmentally disabled (“ICF/DD”) individuals. (Plfs.’ 56.1, ¶ 36); see 42 U.S.C. § 1386d(a)(15), (d). The Medicaid statute allows states to bring even a broader range of services into Medicaid coverage through its waiver provision, which provides:
The Secretary may by waiver provide that a State plan approved under this subchapter may include as “medical assistance” under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a[n] ••• intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan.
42 U.S.C. § 1396n(c)(1).
The State of Illinois requested and received a Medicaid Home and Community-Based Services waiver (“the Waiver”) under the authority of § 1915(c) of the Social Security Act, 42 U.S.C. § 1396(c). (Plfs .’ 56.1, ¶ 47.) The Waiver allows Illinois to provide home and community-based services to individuals who, but for the provision of such services, would require the level of care provided at an intermediate care facility for mentally retarded or developmentally disabled persons aged eighteen and older. (Plaintiffs’ Response to Defendants’ Local Rule 56.1(a)(3) Statement of Material Facts, ¶¶ 34-36 (“Defs.’ 56.1, ¶ __”).) Upon meeting the eligibility requirements for the Waiver, “the recipient or his or her legal representative will be-(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.
The State of Illinois requested that various home and community-based services, including residential habilitation, be included in the Waiver. (Defs.’ 56.1, ¶ 44.) “Residential habilitation” includes necessary nursing assessment, direction and monitoring by a registered professional nurse, and support services and assistance by a registered professional nurse or a licensed practical nurse to ensure the individual’s health and welfare. (Defs.’ 56.1, ¶ 48.) Residential habilitation services under the Waiver are provided in the Community Integrated Living Arrangement (“CILA”) program. (Defs.’ 56.1, ¶ 50.) The CILA program provides services and support in small group home settings, host family arrangements, individuals’ own homes and family homes. (Defs .’ 56.1, ¶ 51.) For residential services, including residential habilitation in a CILA, the State gives service priority to eligible persons according to the following priority population criteria: (1) individuals who are in crisis situations (e.g., including but not limited to, persons who have lost their caregivers, persons who are in abusive or neglectful situations); (2) individuals who are wards of the Illinois Department of Children and Family Services and are approaching the age of 22 and individuals who are aging out of children’s residential services funded by the Office of Developmental Disabilities; (3) individuals who reside in State-Operated Developmental Centers; (4) Bogard class members, i.e., certain individuals with developmental disabilities who currently reside in a nursing facility; (5) individuals with mental retardation who reside in State-Operated Mental Health Hospitals; (6) individuals with aging caregivers; and (7) individuals who reside in private ICFs/MR or ICFs/DD. (Defs.’ 56.1, ¶ 55.) The State of Illinois adopted the Priority Population Criteria for residential services to allocate effectively resources to those individuals who are most in need of residential services under the Waiver. (Defs.’ 56.1, ¶ 56.) If an individual does not meet the Priority Population Criteria and wants to receive residential services, the individual must receive them in an institutional setting through the ICF/DD program. (Defs.’ 56.1, ¶ 57.)
*3 Christopher Bertrand is a developmentally disabled adult who was 23 years old at the time the complaint was filed. (Defs.’ 56. 1, ¶¶ 1-2.) State officials found Christopher Bertrand eligible to participate in the HCBS-DD Waiver Program. (Defs.’ 56.1, ¶ 3.) An application for CILA Services was submitted on Bertrand’s behalf in December 2004. (Defs.’ 56.1, ¶ 4.)
2

Bertrand v. Maram, Not Reported in F.Supp.2d (2006) Med & Med GD (CCH) P 301,912
The State denied his application in January 2005, because he did not meet the Priority Population Criteria for residential habilitation services. (Defs.’ 56.1, ¶ 5.) In February 2005, Bertrand’s application for CILA Services was resubmitted, this time with a letter from Bertrand’s parents, describing their relative age and declining health. (Defs.’ 56.1, ¶ 6.) The State approved his application in March 2005. (Id.) Bertrand has been receiving funding for CILA Services from the HCBS-DD waiver program since May 24, 2005. (Defs.’ 56.1, ¶ 7.)
Plaintiff Frank Patterson, Jr. is a developmentally disabled adult who was 29 years old at the time the complaint was filed. (Defs.’ 56.1, ¶ 9.) State officials found Patterson eligible to participate in the HCBS-DD Waiver Program. (Defs.’ 56.1, ¶ 11.) Patterson does not receive funding for 24-hour CILA services, but he does receive funding for some non-residential services under the HCBSDD Waiver Program. (Defs.’ 56. 1, ¶¶ 12-13.)
DISCUSSION
Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The Court considers cross-motions for summary judgment from a “Janus-like” perspective, examining each party’s motion in turn and viewing all evidence and drawing all inferences in favor of the party opposing the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Of first note, the mooting of the class representative’s personal claim does not bar him from continuing to represent the class. Next, in § 1396a(a)(8), Congress created a statutory entitlement to receive medical assistance with reasonable promptness for all eligible individuals. This entitlement includes funding for all services to which they are eligible under a § 1396n(c)(1) waiver. Because the CMS approved Illinois’ use of the Priority Population Criteria for residential services and because Plaintiffs do not fall within those criteria, Plaintiffs are not eligible for residential CILA services under the Waiver.

I. Mootness Plaintiff Bertrand sought funding for community-based residential services in the HCBS-DD Waiver Program. (Am.Compl.¶ 2.) Defendants had refused to authorize funding for 24-hour CILA services because he did not meet the Population Priority Criteria. (Am.Compl.¶¶ 2, 37-40.) On May 9, 2005, Defendants authorized 24-hour CILA services to be provided to Bertrand. (Defs.’ 56.1, ¶ 6.) Since May 24, 2005, Bertrand has resided in a CILA. (Defs.’ 56.1, ¶ 7.) Bertrand thus now receives the full-range of CILA services to which he claimed he was entitled in the Complaint.
*4 Generally, a case is moot when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome. See Stotts v. Community Unit Sch. Dist. No. 1, 230 F.3d 989, 990 (7th Cir.2000). However, “the mooting of the named plaintiff’s claim in a class action by the defendant’s satisfying the claim does not moot the action so long as the case has been certified as a class action, or ... so long as a motion for class certification has been made and not ruled on, unless ... the movant has been dilatory.” Primax Recoveries, Inc. v. Sevilla, 324 F.3d 544, 546-47 (7th Cir.2003). Bertrand filed his motion for class certification on February 10, 2005 and Bertrand has not been dilatory in pursuing relief on the class claims. As such, Bertrand may continue to represent the putative class and this Court takes the facts of Bertrand’s claim as they existed at the time the Complaint was filed. See Kifer v. Ellsworth, 346 F.3d 1155, 1156 (7th Cir.2003) ( “[T]he mooting of the class representative’s personal claim does not bar him from continuing to represent the class”).
II. Right of Action under 42 U.S.C. § 1983 Section 1983 imposes liability on anyone who, under color of state law, deprives a person “of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. Section 1983 “creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere.” See City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). Plaintiffs argue that 42 U.S.C. § 1396a(a)(8) establishes a right to reasonably prompt medical assistance that may be enforced through § 1983. Section 1396a(a)(8) states that “[a] State plan for medical assistance must provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.”
3

Bertrand v. Maram, Not Reported in F.Supp.2d (2006) Med & Med GD (CCH) P 301,912

Congress established the Medicaid program under Title XIX of the Social Security Act and pursuant to its Spending Clause powers. When legislation is enacted pursuant to Congress’ spending power, federal funding provisions cannot be enforced under § 1983 “unless Congress speaks with a clear voice and manifests an unambiguous intent to confer individual rights.” Gonzaga University v. Doe, 536 U.S. 273, 280 (2002) (internal quotes omitted); see Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28 (1981) (“In legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federal imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State”). Such unambiguously conferred rights and entitlements are distinguished from broader, more vague benefits or interests that are not enforceable. Id. at 275, 283.
*5 A “statutory entitlement to reasonable promptness of medical services (42 U.S.C. § 1396a(a)(8))” exists under the Medicaid statute.2 Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F .3d 906, 910 (7th Cir.2003); Gonzaga, 536 U.S. at 287 (stating that individual entitlements are enforceable under § 1983). This Court would be hesitant to follow this statement, made without any analysis, except that later in Bruggeman, the Seventh Circuit found that 42 U.S.C. § 1396a(a)(19) “cannot be interpreted to create a private right of action, given the Supreme Court’s hostility, most recently and emphatically expressed in Gonzaga University v. Doe to implying such rights in spending statutory.” Bruggeman, 324 F.3d at 911. This latter statement makes clear, however, that the Seventh Circuit was aware of the issue and the Supreme Court’s recent holding in Gonzaga.3

2

Since § 1983 is not mentioned in the opinion it is

unclear whether Plaintiffs brought their action under §

1983 or whether the Seventh Circuit recognized a

private right of action under the Medicaid statute itself.

In either instance, the Seventh Circuit answered the

question of whether § 1396a(a)(8) creates an

individually enforceable federal right. See Gonzaga,

536 U.S. at 284 (explaining that “the [§ 1983 and

private right of action] inquiries overlap in one

meaningful respect-in either case we must first

determine whether Congress intended to create a

federal right”) (emphasis in original).

3

Indeed, absent Bruggeman, and despite precedent in

other circuits expressly holding that § 1396a(a)(8)

confers a “right,” see Sabree v. Richman, 367 F.3d 180, 191 (3d Cir.2004) (holding that § 1396a(a)(8) creates a federal right enforceable through § 1983); Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir.2002) (same); Westside Mothers v. Olszewski, 454 F.3d 532, 540 (6th Cir.2006) (same), this Court would have held that § 1396a(a)(8) does not create a “right” that may be enforced through § 1983 for several reasons. First, § 1396a’s language, like the Medicaid statute as a whole, focuses on the State’s obligations in the aggregate, rather than an individual’s entitlement. See Blessing v. Freestone, 520 U.S. 329, 344 (1997). For example, § 1396a(a)(8) itself provides that a State shall furnish medical assistance with responsible promptness, rather than stating that eligible individuals shall receive medical assistance with reasonable promptness. See Alexander v. Sandoval, 532 U.S. 275, 289 (2001) (“Statutes that focus on the person regulated rather than the individuals protected create no implication of an intent to confer rights on a particular class of persons”). Second, § 1396c empowers the Secretary of Health and Human Services to suspend payments to a state if it fails to “comply substantially” with the requirements of Title XIX. The fact that a State may satisfy its obligation through “substantial compliance” cuts against finding that Congress created an individual right or entitlement. See Blessing, 520 U.S. at 343. The punishment of a funding cut for non-compliance also implies that Congress did not intend to create a private right of action. See Suter v. Artist M., 503 U.S. 347 363 (1992) (finding Congress created no private right of action where statute provided that State’s non-compliance would be punished “by the Secretary in the manner [of reducing or eliminating payments]”); Halderman, 451 U.S. at 28 (same). Finally, § 1396a(a)(3) provides that a State must grant a hearing to any individual that is not provided assistance with reasonable promptness. The availability of such an administrative remedy is evidence that Congress did not intend to create a right enforceable in federal court under § 1983. See Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 432 (1987) (administrative procedure in Act counseled against finding a congressional intent to create individually enforceable rights); Wilder v. Virginia Hospital Ass’n, 496 U.S. 498, 522-23 (1990) (same).
Section 1396a(a)(8) thus creates a right enforceable under § 1983, a right to medical assistance with reasonable promptness to all eligible individuals. The Medicaid statute defines “medical assistance” as “payment of part or all of the cost of the [enumerated] services” to eligible individuals. 42 U.S.C. § 1396d(a). Given this definition, § 1396a(a)(8) guarantees “a prompt determination of
4

Bertrand v. Maram, Not Reported in F.Supp.2d (2006) Med & Med GD (CCH) P 301,912

eligibility and prompt provision of funds to eligible individuals to enable them to obtain the covered medical services that they need.” Bruggeman, 324 F.3d at 910.4

4

Unlike plaintiffs in Bruggeman, Plaintiffs seek funding

for eligible services not the provision of the medical

services themselves. See id. at 910-11.

The State argues that even if § 1396a(a)(8) creates an enforceable right, such right does not extend to the 24-hour CILA services offered under the HCBS-DD waiver. Unlike certain services that the Medicaid statute expressly provides that a State Plan must furnish, a State is not required to furnish waiver services such as CILA. See § 1396n(c)(1); § 1396a(a)(10). Nonetheless, once a State commits to provide optional services, it must provide them in compliance with the requirements of the Medicaid statute. (Plfs.’ 56.1, ¶ 35.) One of Medicaid’s requirements is to furnish medical assistance with reasonable promptness to all eligible individuals. 42 U.S.C. § 1396a(a)(8). No logical or statutory reason exists not to extend this requirement to all services for which an individual is eligible under the State plan, not just those services explicitly listed in the Medicaid statute. See Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir.2002) (“The strictures of § 1396a(a)(8) should apply with no less force to opt-in plans such as the waiver program, [because o]nce the waiver plan is created and approved, it becomes part of the state plan and therefore subject to federal law; the waiver plans must meet all requirements not expressly waived”); Boulet v. Cellucci, 107 F.Supp. 61, 76 (D.Mass.2000) (“Traditional statutory analysis supports a finding that, once a state opts to implement a waiver program and sets out eligibility requirements for that program, eligible individuals are entitled to those services and to the associated protections of the Medicaid Act”). The entitlement to reasonably prompt medical assistance still derives from the Medicaid statute, an Act of Congress, regardless of where the terms of eligibility are set. Thus, if Plaintiffs are eligible for CILA services, they have an enforceable right for the State to furnish such assistance with reasonable promptness.

III. The Priority Population Criteria *6 The State determined that Plaintiffs both were eligible to participate in the HCB S-DD waiver program. (Defs.’ 56.1, ¶¶ 3, 9.) The State, however, denied Plaintiffs residential habilitation services in a CILA because

Plaintiffs did not meet the Priority Population Criteria. (Defs.’ 56. 1, ¶¶ 4, 12-13.) Thus, if Plaintiffs wanted to receive residential services, they would have to receive them in an institutional setting through the ICF/DD program. (Defs.’ 56.1, ¶ 57.) Plaintiffs argue that the State’s use of its Priority Population Criteria to limit access to CILA services violates the State’s obligation to provide medical assistance with reasonable promptness to all eligible individuals. The CMS addressed the State Medicaid Directors, including the State of Illinois, in a letter dated January 10, 2001, concerning this issue. (Plfs.’ 56.1, ¶ 115.) With regard to “access to services within a waiver,” the letter provides that:
A State is obliged to provide all people enrolled in the waiver with the opportunity for access to all needed services covered by the waiver and the Medicaid State plan. Thus, the State cannot develop separate and distinct service packages for waiver population subgroups within a single waiver. The opportunity for access pertains to all services available under the waiver that an enrollee is determined to need on the basis of an assessment and written plan of care/support.
This does not mean that all waiver participants are entitled to receive all services that theoretically could be available under the waiver.
The State may impose reasonable and appropriate limits or utilization control procedures based on the need that individuals have for services covered under the waiver. An individual’s right to receive a service is dependent on a finding that the individual needs the service, based on appropriate assessment criteria that the State develops and applies fairly to all waiver enrollees.
(Plfs.’ 56.1, ¶ 117.)
The State of Illinois added the Priority Population Criteria to the text of the Waiver as part of the waiver renewal process in 2002. (Defs.’ 56.1, ¶¶ 58, 61.) The Population Priority Criteria for residential services were discussed with the CMS review team during the HCBS-DD Waiver renewal process. (Defs.’ 56.1, ¶ 59.) The State notified CMS about the inclusion of the Priority Population Criteria for residential services in the text of the HCBS-DD Waiver in the cover letter and corresponding summary of changes submitted with the waiver renewal application. (Defs.’ 56. 1, ¶ 60.) CMS approved the HCBS-DD Waiver renewal request on June 17, 2002, effective July 1, 2002, including the Priority Population
5

Bertrand v. Maram, Not Reported in F.Supp.2d (2006)
Med & Med GD (CCH) P 301,912
Criteria. (Defs.’ 56.1, ¶ 61.) CMS thus found that the Priority Population Criteria are appropriate assessment criteria for determining an individual’s need. And the Court can find no reason to undo CMS’ determination that the Priority Population Criteria are a reasonable and appropriate limit based on the need that individuals have for residential services. See Indiana Ass’n of Homes for Aging Inc. v. Indiana Office of Medicaid Policy and Planning, 60 F.3d 262, 270 (7th Cir.1995) (giving substantial deference to CMS’ approval of terms in State plan).
*7 Last, Plaintiffs argue that Illinois’ excess Medicaid waiver capacity requires disabled persons to be funded up to the cap. Plaintiffs cite evidence that Illinois has not used all 10,000 slots in its HCB S waiver program from 2000 to the present. (Plfs.’s 56.1, § 93B.) Several courts have held that the state’s waiver services are an entitlement for eligible individuals at least up to the cap. See Bryson, 308 F.3d at 88; Boulet, 107 F.Supp.2d at 78; Makin v. Hawaii, 114 F.Supp.2d 1017, 1027-28 (D.Haw.1999). But neither of Plaintiffs has been denied a slot in the waiver program. The State has found both eligible to participate in the waiver program, and, accordingly, they lack standing to pursue any a claim

based on the State’s alleged failure to use all of its waiver slots.
Conclusion and Order
Section 1396a(a)(8) creates an entitlement, enforceable under § 1983, to have the State furnish medical assistance with reasonable promptness for all eligible individuals. With regard to the medical assistance Plaintiffs seek, CMS knowingly approved the Population Priority Criteria as a reasonable and appropriate limit based on an individual’s need for residential services under the waiver. Thus, Plaintiffs, who do not meet the Priority Population Criteria, are not entitled to residential services in a CILA. Wherefore, Defendants’ Motion for Summary Judgment is granted and Plaintiffs’ Motion for Summary Judgment is denied. Defendants’ Motion to Strike Certain Exhibits is denied. Plaintiffs’ Motion for Class Certification is denied as moot.
So ordered.

6

 
 Case: 1:05-cv-544 As of: 07/02/2011 04:11 PM CDT 1 of 7
KEYS, PROTO
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 4.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:05−cv−00544

Bertrand v. Maram et al Assigned to: Honorable Virginia M. Kendall Case in other court: 06−03705 Cause: 42:1983 Civil Rights Act
Plaintiff
Christopher Bertrand by and through his parents other Inez Bertrand other Daniel Bertrand
Plaintiff
Frank Patterson, Jr. individually and behalf of a class guardian ad litem Frank Patterson, Sr. guardian ad litem Janice Patterson

Date Filed: 01/31/2005 Date Terminated: 09/25/2006 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Robert Hugh Farley , Jr. Robert H. Farley, Jr., Ltd. 1155 South Washington Naperville, IL 60540 (630) 369−0103 Fax: (630) 369−0195 Email: farleylaw@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Barry S Maram in his official capacity as Director of the Illinois Department of Public Aid

represented by Karen Elaine Konieczny Illinois Attorney General's Office 160 North LaSalle Street Suite N−1000 Chicago, IL 60601 (312)793−2380 Email: karen.konieczny@illinois.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Samuel Gange Illinois Attorney General's Office 160 North LaSalle Street Suite N−1000 Chicago, IL 60601 (312)793−2380 Email: Christopher.Gange@illinois.gov ATTORNEY TO BE NOTICED
John E. Huston Illinois Attorney General's Office 160 North LaSalle Street Suite N−1000 Chicago, IL 60601 (312)793−2380 Email: John.Huston@illinois.gov ATTORNEY TO BE NOTICED

Case: 1:05-cv-544 As of: 07/02/2011 04:11 PM CDT 2 of 7

Defendant
Carol L Adams in her official capacity as Secretary of the Illinois Department of Human Services

represented by Karen Elaine Konieczny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Samuel Gange (See above for address) ATTORNEY TO BE NOTICED

John E. Huston (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jerolene Johnson in her official capacity as Director of the Office of Developmental Disabilities

represented by Karen Elaine Konieczny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Samuel Gange (See above for address) ATTORNEY TO BE NOTICED

John E. Huston (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/31/2005 01/31/2005 01/31/2005 02/01/2005
02/04/2005
02/10/2005
02/10/2005
02/10/2005
02/10/2005 02/16/2005

# Docket Text
1 COMPLAINT filed by plaintiff Christopher Bertrand for declaratory and injunctive relief; Exhibits. (eav, ) Modified on 11/4/2005 (ym, ). (Entered: 02/01/2005)
2 CIVIL Cover Sheet (eav, ) (Entered: 02/01/2005)
3 ATTORNEY Appearance for Plaintiff by Robert Hugh Farley, Jr (eav, ) (Entered: 02/01/2005)
5 AMENDED complaint by plaintiffs against all defendants for declaratory and injunctive relief (Exhibits).(lcw, Lakisha) Modified on 1/20/2006 (aew, ). (Entered: 02/03/2005)
6 ATTORNEY Appearance for Defendants Barry S Maram, Carol L Adams, Jerolene Johnson by Christopher Samuel Gange, John E. Huston, Karen Elaine Konieczny (eav, ) (Entered: 02/07/2005)
7 MOTION by Plaintiffs Frank Patterson, Jr, Christopher Bertrand for leave of court for Thomas G. Morrissey to file an additional appearance (gma, ) (Entered: 02/10/2005)
8 MOTION by Plaintiffs Frank Patterson, Jr, Christopher Bertrand for class certification; Exhibits. (gma, ) Modified on 1/30/2006 (ym, ). (Entered: 02/10/2005)
9 NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion for class certification 8 , motion for leave of court for Thomas G. Morrissey to file an additional appearance 7 before Honorable David H. Coar on 2/16/2005 at 09:00 AM. (gma, ) (Entered: 02/10/2005)
10 MEMORANDUM OF LAW by Frank Patterson, Jr, Christopher Bertrand in Support of class certification 8 (gma, ) (Entered: 02/10/2005)
12 MINUTE entry before Judge David H. Coar : Motion hearing held regarding [7 and 8]. Plaintiffs' motion for leave of Court for Thomas G. Morrissey to file an additional appearance is granted. 7 The briefing schedule as to the 8 motion for

Case: 1:05-cv-544 As of: 07/02/2011 04:11 PM CDT 3 of 7

02/16/2005 02/16/2005 02/22/2005 03/17/2005 03/17/2005 03/22/2005 03/24/2005 03/28/2005
04/08/2005 04/08/2005 04/14/2005
04/14/2005 04/21/2005

class certification is as follows: Answer brief due by 3/21/05; Reply brief due by 4/12/05. Motions taken under advisement − ruling will issue by mail. Mailed notice (eav, ) (Entered: 02/25/2005)
13 MINUTE entry before Judge David H. Coar : Discovery on the class certification is open. Enter agreed order in reference to confidentiality of personal health information of Bertrand and Patterson, Jr. and other documents. Mailed notice (eav, ) (Entered: 02/25/2005)
14 AGREED ORDER Signed by Judge David H. Coar on 2/16/2005: (eav, ) (Entered: 02/25/2005)
11 ANSWER and defenses to plaitniffs' amended complaint for declaratory and injunctive relief by Barry S Maram, Carol L Adams, Jerolene Johnson ; Notice of filing(eav, ) (Entered: 02/25/2005)
15 MOTION by Defendants to set discovery cut−off on class discovery and to enlarge the time to respond to plaintiffs' memorandum of law in support of class certification (gma, ) (Entered: 03/18/2005)
16 NOTICE of Motion by Karen Elaine Konieczny for presentment of MOTION by Defendants to set discovery cut−off on class discovery and to enlarge the time to respond to plaintiffs' memorandum of law in support of class certification 15 before Honorable David H. Coar on 3/28/2005 at 09:00 AM. (gma, ) (Entered: 03/18/2005)
17 RESPONSE by plaintiffs to defendants' motion to cut−off discovery and enlarge time to file class brief 15 (eav, ) (Entered: 03/24/2005)
18 REPLY by defendants to plaintiffs' response to defendants' motions to set discovery cut−off on class discovery and to enlarge the time to respond to plaintiffs' memorandum of law in support of class certification 15 ; Notice of filing (eav, ) (Entered: 03/28/2005)
19 MINUTE entry before Judge David H. Coar : Motion hearing held on 3/28/05 regarding # 15 . For the reasons stated on the record, the defendant's motion 15 to set discovery and to enlarge the time to respond to plaintiff's memorandum of law in support of class certification is granted to the extend that discvoery on the class certification issues shall close on 4/15/05. The briefing schedule on the plaintiff's motion 8 for class certification is extended as follows: Defendant's answer brief in opposition to the class certification motion shall be filed on or before 5/2/05; Plaintiff's response brief in support of class certification shall be filed on or before 5/17/05. Mailed notice (eav, ) (Entered: 03/28/2005)
20 MOTION by Plaintiffs Frank Patterson, Jr, Christopher Bertrand for entry of agreed protective order (gma, ) (Entered: 04/08/2005)
21 NOTICE of Motion by Robert Hugh Farley, Jr for presentment of MOTION by Plaintiffs Frank Patterson, Jr, Christopher Bertrand for entry of agreed protective order 20 before Honorable David H. Coar on 4/14/2005 at 09:00 AM. (gma, ) (Entered: 04/08/2005)
22 MINUTE entry before Judge David H. Coar : Motion hearing held. Motion for protective order # 20 is granted. Enter protective order in reference to records pertaining to Jason Drzewicki which are in the possession and control of the defendants. The parties are advised to adhere and follow Local Rule 5.8 when filing documents under seal pursuant to this protective order. Further, Local Rule 26.2 (and in particular 26.2(e)) shall apply unless otherwise ordered by this Court. Absent a motion from a party sealed documents will be placed in the public record after closing of the case as stated in L.R. 26.2(e). Enter Protective Order. No notice (eav, ) (Entered: 04/18/2005)
23 AGREED PROTECTIVE Order Signed by Judge David H. Coar on 4/14/2005:(eav, ) (Entered: 04/18/2005)
24 MOTION by Plaintiffs Frank Patterson, Jr,and Christopher Bertrand for leave of court to take in excess of ten depositions (las, ) (Entered: 04/22/2005)

Case: 1:05-cv-544 As of: 07/02/2011 04:11 PM CDT 4 of 7

04/21/2005 04/27/2005
05/02/2005 05/12/2005 06/08/2005
06/08/2005 06/08/2005 06/08/2005 06/08/2005 06/08/2005 06/10/2005 06/14/2005 06/14/2005 07/07/2005 07/07/2005 07/07/2005 07/07/2005 07/07/2005 07/07/2005 07/07/2005

25 NOTICE of Motion by Robert Hugh Farley, Jr for presentment ofplaintiffs' motion for leave of court to take more than ten depositions 24 before Honorable David H. Coar on 4/27/2005 at 09:00 AM. (las, ) (Entered: 04/22/2005)
26 MINUTE entry before Judge David H. Coar : Plaintiff's Motion for leave of Court to take in excess of ten depositions 24 is moot as the Standing Order should read 20 and not 10. Motion hearing held on 4/27/2005 regarding motion for miscellaneous relief 24 No− notice (pm, ) (Entered: 05/04/2005)
27 RESPONSE by Defendants in opposition to plaintiffs' motion for class certification.(gcy, ) (Entered: 05/05/2005)
28 REPLY by Frank Patterson, Jr, Christopher Bertrandin to defendants response to plaintiffs motion for class certification 8 (eav, ) (Entered: 05/16/2005)
29 MINUTE entry before Judge David H. Coar : Status hearing held. Rule 16(b) Scheduling Conference set for 7/19/05 at 9:00 a.m. Report of Planning Conference pursuant to Rule 26(f) and Proposed Scheduling Order pursuant to Rule 16(b) to be filed in chambers. (Forms of report of planning conference and proposed scheduling order are available on the Court's web page or in chambers.) Mailed notice (eav, ) (Entered: 06/08/2005)
31 EXHIBITS by Plaintiffs of materials relief upon in support of summary judgement pursuant to Local Rule 56.1(a)(1) (2 Vols) (eav, ) (Entered: 06/14/2005)
32 MOTION by Plaintiffs for summary judgment (eav, ) (Entered: 06/14/2005)
33 MEMORANDUM by plaintiffs of law in Support of motion for summary judgment pursuant to Local Rule 56.1(a)(2) 32 (eav, ) (Entered: 06/14/2005)
34 STATEMENT OF MATERIAL FACTS PURSUANT TO LOCAL RULE 56 (a)(3) (eav, ) (Entered: 06/14/2005)
35 NOTICE of Motion by all plaintiffs for presentment of motion for summary judgment 32 before Honorable David H. Coar on 6/14/2005 at 9:00 AM; Notice of filing (eav, ) (Entered: 06/14/2005)
30 MINUTE entry before Judge David H. Coar : The Court's order of 6/8/2005 is amended and corrected to strike the phrase "Status hearing held". mailed notice (pm, ) Modified on 6/13/2005 (pm, ). (Entered: 06/10/2005)
Motions Taken Under Advisement: MOTION by Plaintiffs Frank Patterson, Jr, Christopher Bertrand for summary judgment 32 (tlp, ) (Entered: 06/14/2005)
36 MINUTE entry before Judge David H. Coar : Defendant's answer to plaintiffs' motion for summary judgment is due 7/7/05 32 ; reply due 7/25/05; motion taken under advisement. No notice (eav, ) (Entered: 06/15/2005)
37 MOTION by Defendants for summary judgment (gma, ) (Entered: 07/07/2005)
38 NOTICE of Motion by Karen Elaine Konieczny for presentment of MOTION by Defendants for summary judgment 37 before Honorable David H. Coar on 7/19/2005 at 09:00 AM. (gma, ) (Entered: 07/07/2005)
39 MEMORANDUM OF LAW by Barry S Maram, Carol L Adams, Jerolene Johnson in Support of MOTION by Defendants for summary judgment 37 (gma, ) (Entered: 07/07/2005)
40 NOTICE by defendants of filing MOTION by Defendants for summary judgment 37 (gma, ) (Entered: 07/07/2005)
41 LOCAL RULE 56.1(a)(3) STATEMENT by defendants of material facts for thier MOTION for summary judgment (gma, ) (Entered: 07/07/2005)
42 MOTION by Defendant Barry S Maram to strike certain materials plaintiffs relief on in support of their motion for summary judgment (gma, ) (Entered: 07/07/2005)
43 NOTICE of Motion by Karen Elaine Konieczny for presentment of MOTION by Defendant Barry S Maram to strike certain materials plaintiffs relief on in support of their motion for summary judgment 42 before Honorable David H. Coar on

Case: 1:05-cv-544 As of: 07/02/2011 04:11 PM CDT 5 of 7

07/07/2005 07/07/2005 07/07/2005 07/07/2005 07/07/2005 07/13/2005 07/13/2005 07/13/2005 07/19/2005
07/19/2005 07/20/2005 07/25/2005 07/25/2005 07/27/2005 07/27/2005 08/12/2005

7/19/2005 at 09:00 AM. (gma, ) (Entered: 07/07/2005)
44 MEMORANDUM OF LAW by defendants in support of MOTION by Defendant Barry S Maram to strike certain materials plaintiffs relief on in support of their motion for summary judgment 42 (gma, ) (Entered: 07/07/2005)
45 NOTICE by defendants of filing MEMORANDUM OF LAW by defendants in support of MOTION by Defendant Barry S Maram to strike certain materials plaintiffs relief on in support of their motion for summary judgment 44 (gma, ) (Entered: 07/07/2005)
46 EXHIBITS by Defendants and supporting materials pursuant to Local Rule 56.1(a)(1) in support of their motion for summary judgment 37 and pursaunt to Local Rule 56.1(b)(1) in response to plaintiffs' motion for summary judgment(eav, ) (Entered: 07/08/2005)
47 RESPONSE by Defendants to plaintiffs' statement of material facts (eav, ) (Entered: 07/11/2005)
48 MEMORANDUM by defendants 32 of law in response to plaintiffs' motion for summary judgment; Notice of filing (eav, ) (Entered: 07/11/2005)
49 MOTION by Defendant Barry S Maram for leave to amend answer to plaintiffs' amended comaplint pursuant to Fed.R.Civ.P. 15(a) (gma, ) (Entered: 07/14/2005)
50 NOTICE of Motion by Karen Elaine Konieczny for presentment of MOTION by Defendant Barry S Maram for leave to amend answer to plaintiffs' amended comaplint pursuant to Fed.R.Civ.P. 15(a) 49 before Honorable David H. Coar on 7/19/2005 at 09:00 AM. (gma, ) (Entered: 07/14/2005)
51 NOTICE by Barry S Maram of filing MOTION by Defendant Barry S Maram for leave to amend answer to plaintiffs' amended comaplint pursuant to Fed.R.Civ.P. 15(a) 49 (gma, ) (Entered: 07/14/2005)
52 MINUTE entry before Judge David H. Coar : Motion hearing held on 7/19/2005 regarding motion to amend/correct 49 , motion for summary judgment 37 , motion to strike 42 . Defendant's Motion to amend answer and defenses to plaintiffs' amended complaint 49 is granted. Set deadlines as to Defendant's motion for summary judgment 37 : Responses due by 7/29/2005; Replies due by 8/12/2005. As to Motion to strike, the plaintiff is given to 7/29/205 to file a brief response. MOTION for summary judgment 37 is taken under advisement, Motion to strike 42 is taken under advisement. Mailed notice (pm, ) (Entered: 07/19/2005)
53 MINUTE entry before Judge David H. Coar : The Rule 16(b) scheduling conference scheduled for 7/19/2005 is held in abeyance until further order of court. no notice advised in open court. (pm, ) (Entered: 07/19/2005)
54 AMENDED Answer and defenses by Defendants Barry S Maram, Carol L Adams, Jerolene Johnson to plaintiffs' amended complaint for declaratory and injunctive relief; Notice of filing (eav, ) (Entered: 07/22/2005)
55 REPLY by Plaintiffs Frank Patterson, Jr, Christopher Bertrand to defendants response to plaitniffs motion for summary judgment (eav, ) (Entered: 07/27/2005)
56 RESPONSE by plaintiffs to defendants motion to strike certain materials plaintiffs relied upon in support of plaintiffs motion for summary judgment 42 (Attachments) (eav, ) (Entered: 07/27/2005)
58 MEMORANDUM by Frank Patterson, Jr, Christopher Bertrand of law in response to defendants' motion for summary judgment 37 (eav, ) (Entered: 07/29/2005)
59 RESPONSE by Plaintiffs Frank Patterson, Jr, Christopher Bertrand to defendants' statement of material facts pursuant to Local Rule 56.1(b)(3)(A) 34 and Plaintiffs' Statement of Additional Facts pursuant to Local Rule 56.1(b)(3)(B) (eav, ) (Entered: 07/29/2005)
60 REPLY Memorandum in Support of Defendants' Motion for Summary Judgment (Konieczny, Karen) (Entered: 08/12/2005)

Case: 1:05-cv-544 As of: 07/02/2011 04:11 PM CDT 6 of 7

08/12/2005 08/12/2005 11/02/2005 11/02/2005 11/03/2005 11/07/2005 01/23/2006 01/24/2006
01/31/2006 02/07/2006 07/19/2006 07/19/2006 07/20/2006 07/24/2006 09/25/2006
09/25/2006

61 NOTICE by Barry S Maram, Carol L Adams, Jerolene Johnson re reply to response to motion 60 and Certificate of Service (Konieczny, Karen) (Entered: 08/12/2005)
62 RESPONSE by Defendants to plaintiffs' statement of additional facts and exhibit in response to plaintiffs' statement of additional facts (Attachments); Notice of filing (eav, ) (Entered: 08/16/2005)
63 MOTION by Defendants Barry S Maram, Carol L Adams, Jerolene Johnson to supplement Summary Judgment Memoranda with Additional Authority (Huston, John) (Entered: 11/02/2005)
64 NOTICE of Motion by John E. Huston for presentment of motion to supplement 63 before Honorable David H. Coar on 11/8/2005 at 09:00 AM. (Huston, John) (Entered: 11/02/2005)
65 RESPONSE To Defendants' Motion To Cite Additional Authority On Summary Judgment (Farley, Robert) (Entered: 11/03/2005)
66 MINUTE entry before Judge David H. Coar : Motion hearing held on 11/7/05 regarding 63 . Defendants' Motion to Cite Additional Authority on summary judgment is granted, and the Court will take into consideration the additional authority.` (lcw, ) (Entered: 12/07/2005)
68 EXECUTIVE COMMITTEE ORDER: Case reassigned to Judge Virginia M. Kendall for all further proceedings. Signed by Executive Committee on 1/23/06. Mailed notice(cem, ) (Entered: 01/26/2006)
67 MINUTE entry before Judge Virginia M. Kendall : Initial status hearing set for 2/7/06 at 9:30 a.m. before Judge Kendall in Courtroom 1719. By 2/1/06, counsel are directed to confer, prepare, and file a Joint Status Report as directed in the Order Requiring Status Report and Setting Status Hearing for Newly Assigned Cases to the Calendar of Judge Kendall. Mailed notice (gmr, ) (Entered: 01/25/2006)
69 STATUS Report JOINT by Christopher Bertrand (Farley, Robert) (Entered: 01/31/2006)
70 MINUTE entry before Judge Virginia M. Kendall : Status hearing held on 2/7/2006. Ruling on pending motion(s) will be by mail. Mailed notice (gmr, ) (Entered: 02/07/2006)
71 MOTION by Defendant Barry S MaramDefendants' Motion to Cite Additional Authority on Summary Judgment (Huston, John) (Entered: 07/19/2006)
72 NOTICE of Motion by John E. Huston for presentment of motion for miscellaneous relief 71 before Honorable Virginia M. Kendall on 7/25/2006 at 09:00 AM. (Huston, John) (Entered: 07/19/2006)
73 RESPONSE by Plaintiffs' to Defendants' Motion To Cite Additional Authority On Summary Judgment (Farley, Robert) (Entered: 07/20/2006)
74 MINUTE entry before Judge Virginia M. Kendall : Motion to cite additional authority on summary judgment 71 is granted. The presentment date of 7/25/06 for said motion is stricken. Mailed notice (gmr, ) (Entered: 07/24/2006)
75 MINUTE entry before Judge Virginia M. Kendall : For the reasons set out in the Memorandum Opinion and Order, Defendants' Motion for Summary Judgment 37 is granted and Plaintiffs' Motion for Summary Judgment 32 is denied. Defendants' Motion to Strike Certain Exhibits 42 is denied. Plaintiffs' Motion for Class Certification 8 is denied as moot. The Court enters judgment in favor of Defendants Barry S. Maram, Carol L. Adams, and Jerolene Johnson and against Plaintiffs Christopher Bertrand and Frank Patterson, Jr. Mailed notice (gmr, ) (Entered: 09/25/2006)
76 MEMORANDUM Opinion and Order Signed by Judge Virginia M. Kendall on 9/25/2006:Mailed notice(gmr, ) (Entered: 09/25/2006)

Case: 1:05-cv-544 As of: 07/02/2011 04:11 PM CDT 7 of 7

09/25/2006 10/06/2006
10/06/2006 10/10/2006 10/11/2006 10/19/2006 11/02/2006
11/06/2006 09/05/2007 09/05/2007
09/05/2007

77 ENTERED JUDGMENT on 9/25/2006:Mailed notice(gmr, ) (Entered: 09/25/2006)
78 NOTICE of appeal by Frank Patterson, Jr, Christopher Bertrand regarding orders 75 , 76 , 77 ; Filing fee $455.00 paid; Receipt number 10719473. (cdh, ) (Entered: 10/10/2006)
79 DOCKETING Statement by Frank Patterson, Jr, Christopher Bertrand regarding notice of appeal 78 . (cdh, ) (Entered: 10/10/2006)
80 TRANSMITTED to the 7th Circuit the short record on notice of appeal 78 . Notified counsel (cdh, ) (Entered: 10/10/2006)
81 ACKNOWLEDGEMENT of receipt of short record on appeal regarding notice of appeal 78 ; USCA Case No. 06−3705. (gej, ) (Entered: 10/13/2006)
82 SEVENTH CIRCUIT transcript information sheet by Christopher Bertrand. (td, ) (Entered: 10/24/2006)
83 TRANSMITTED to the USCA for the 7th Circuit the long record on appeal 78 (USCA no. 06−3705) consisting of two volumes of pleadings and three exhibits. (cdh, ) (Entered: 11/02/2006)
84 USCA RECEIVED on 11/2/06 the long record regarding notice of appeal 78 . (cdh, ) (Entered: 11/06/2006)
85 OPINION from the USCA for the 7th Circuit; Argued 5/3/07; Decided 7/24/07 in USCA case no. 06−3705. (lcw, ) (Entered: 09/07/2007)
86 LETTER from the Seventh Circuit returning the record on appeal in USCA no. 06−3705 consisting of two volumes of pleadings and three volume of exhibits. (Previously Misplaced Document) (lcw, ) Modified on 10/15/2007 (lcw, ). (Entered: 10/15/2007)
87 MANDATE of USCA dated 7/24/07 regarding notice of appeal 78 ; USCA No. 06−3705; The judgment of the District Court is Affirmed, with costs, in accordance with the decision of this court entered on this date. (Previously Misplaced Document) (lcw, ) (Entered: 10/15/2007)

 
 Court o f Appeal . Doc ke t I , 0 6 _ 11 0 5 N. u it , H 4 0 Dt h Civil Righu _Fed . Que. Hon
Bertrand, Chri s tophe, et al v . Karam , Ba rry S . , et "I Appeal from, I1nit ed S t a t e s Di s trict Court

General Docket
us Court of Appeals for the Seventh Circuit
Fi l ed, 10110 / 06

Lower court in!o~at ion'
Din rict ' 01 52 _ 1 , 05 C SH
Ordcr i n9 Jucige , Vir ginia H. Ke nd a l l , Jud ge
Court Repor ter , April Mehler, Court Repo rter Date Filed , I Il I/O S
Dat e ordcrf j udgmcnt , 9125106
Date NOA f iled , I OI6f06
Fcc statu. , pai d

Prior c ase s ,
No n e
Current c ase . ,
No n e
Doc k et ... o f Sc pt clr.ber 12, 20 07 ll' 0 1 pm

Pa9"C I

06_ 37 0 5 Bertr a nd, Ch ri s tophe, ct al v . Mar """ Barry S . , et al

Cl!RISTOPl!ER BERTRAND, by a nd throu gh hi . p a rent. I NEZ a nd
DA.~IEL BERTRAND
Plaintif f _ Appella nt
FRANK PATT ERSON, JR . , by a nd through hi . parent. JA!'!ICE and FRANK PATT ERSON, SR . , individually a nd on behal f o f a c l aso
Plaintiff Appella nt

Robert I! . Fa r l ey, J r.
FAX 61 0/ 369 _ 0 195
6 10136 9 _0 10 1
Suhe 202 ( COR LD NTC r et ) 11 5 5 S . Wa sh in9 ton Street Na perv ill e, I L 6 0 54 0
""
Robert I! . Fa r l ey, J r. (See a bove) ( COR LD NTC r et)

BARRY S. MARAH, in hi . o ff icial c apa cily a s Direct or o f t he I llinoi s Depa r tment of Pu blic Aid
Defendan t _ App<> lle<>
CAROL L . ADAMS, in h er o ff icial c apa city a s Secret ary o f t he I llinoi s Depa rtment of U=a n Service.
Defendant _ Appelle<>

Mary E . Welsh FAX 312/ 9 14 _ 22 75 l!21914 _2 106
12th Floor [COR LD NTC ret ) Brett E . Legner FAX 312/9 14 _ 2 2 75 l!21914_2 IH
12th Floor [COR LD NTC ret) OFFICE OF TUE ATTORNEY CEN ERAL Civi l Appea ls Divi. io n 1 0 0 II . Ra ndolph S tre<>t Slat e o f I llinois Cenler Chica go, IL 60 601
""
Mary E . Welsh (See a bove ) (COR LD NTC ret) Brett E . Legner (See a bove ) (COR LD NTC ret )

JEROLENE JOHNSON, i n her off icial c apa cily a s Direct or o f t he Offi ce o f Development al Di. a bilit i e a
Defendan t _ App<> lle<> [ t erm Olf2 0/ 0 7]

REORETA lIOSlUN, Ac t in" Directo r
Defendan t _ Appelle<>

Mary E . Welsh (See a bove ) (COR LD NTC ret)

Doc ko t a. o f Se pterller 12, 200 7 ll' 0 1 pm

06 _ 3705 Bertr a nd , Chri . t ophe, e t al v. IIar am, Ba rry S . , e t a 1

ACCESS L I VINC OF MET ROPOLITAN CllICAGO
Amicu s Cu riae

~endra ~. UarUM n FAX 312/97 _ 793 4 l!2197 _ U006
(COR LD NTC ret) SONNENSCHBIN, NAT!! ~ ROSENTIIAL 213 S . Wa cker Drive 780 0 Sean T""er Chica go, IL 60 606

A.~RI CA.~ CI VIL LIBERT IES UNION OF ILL INOI S
Amicu s Curia e

~endra ~. UarUM n (See a bove> ( COR LD NTe r eq

EOUIP FOR EOUALI TY Amicus Curiae

~endra JC:. UarUM n (See a bove> ( COR LD NTe r eq

UEALTO ~ DI SABILITY ADVOCATES Amicus Curiae

~endra JC:. UarUM n (See a bove> ( COR LD NTe r eq

NATIONAL UEALTO LAW PROC~~ Amicus Curiae

~endra JC:. UarUM n (See a bove> ( COR LD NTe r eq

Docket as o f Septerller 12, 2007 ll' 01 pm

0 6_ 37 0 5 Bertr a nd, Ch ri s tophe, e t al v. llar am , Ba rry S . , et al
CI!R ISTOPli ER BERTRAND, by a nd t h roug h h i s p ar e n t. I NEZ a nd DA.~IEL BERTRAND a nd FAAN~ PATTERSON, JR . , by a nd t h roug h h i s paren t s JANICE a nd FRA.~~ PATTERSOll, SR., individua ll y a nd o n behalf o f a c laso ,
Plai ntif h _ Appella nt.
BARRY S. MARAH, in hi s offici al c a p a ci t y as Director of the Il li nois Depar t...,nt o f Public Aid, CAROL L . ADAMS, in h er offici al c a p a c i ty as Secret a ry o f the Il linoi s De partment of lIuma n Service s a nd REORETA lIOS KIN, i n her off i ci al c a p a c h y 49 Actin.,. Director of the Office of Developmental Disabilities ,
Defenda nts _ Appellee.
Docket as o f Septerller 12, 2007 ll' 01 pm

0 6_ 37 0 5 Bertr a nd, Ch ri s tophe, e t al v. llar am , Ba rry S . , et al

10/10 /06

Private civil c ase dockete d . [ 06 _ 1105) [ 2011130 _ 1 ) Transcript i nf or_ tion s heet due 10/20 /06. Appella n t' s brief due ll/20 /0 6 f or Chris topher Bertra nd, f or Fra n k Pa Ueroo n . ( amyd )

10/10 /06

[ 06 _ 3705) ROA f rom No. Din . o f Il ., E . Div . due 10/27106 . (amyd )

10/10 /06

F il ed Ap pe ll a n t Ch rin opher Bertrand, Appella n t Fra n k Pa Ueroo n docketing na t=ent. (06_ 3705 ) ( 20337H_ I) (amyd )

10 /16 /0 6

Di s clos ure S tatelOCnt filed by Robert U. Fa r ley for Appellant Fr a nk Pa tter s on, Appell a n t Chr i s toph er Ber trand . [ 06_3705) [ 2013730_1 ] (amyd)

10 /17 /0 6

Filed Soventh Circuit Trans cript Informatio n Sheet by Robert U. Farley f or Appella nt Frank Patterson, Appellant Christopher Bertr a nd . (06_370 5 ] (2033710_ 1) (aa.yd)

1113106

Original record on a ppe al filed . Co n t en t. of reco rd , 2 vol. p lead ings; 3 vol. e x hi bit s . ( 06 _ 170 5 ) ( 20 42 419 _ 1) (gre<.1l

11 /16 /0 6

Filed 15c a p pellant · s brief by Christo pher Bertrand, Frank

Pa tterso n. Di.k filed .

(06_3705 ] (0-0] Appellee · s briof

duo 12118/0 6 f o r J erolene J o hns on, for Carol L . Ad=.s , for

Barry S . ".aram ( s te!)

11 /16 /0 6

F i led 10c a ppendix by Appell a n t Chr i s topher Bertra nd, Appellant Frank Pa tterson . (06 _370 5 ) (204732 4_ 1 ] (stef)

11 / 28/0 6

Di s clos ure S tatelOCnt filed by attorney I<:e ndra 1<: . l!artman for Acce s. Livin g o f Metropol i t a n Chic a go ; The Americ a n Civil Liberties I1nion of I llinoi s; Equip for Equa lit y ; lI ealth • Di sab ility Advoca t e s ; a nd Tho Nationa l Uea lth La .. Program . (0 6 _ 370 5 ) (20 J1130 _ 1 ] ( a myd )

11 / 28/0 6

Filed "",Hon by Acce.. Living, Tho American Civil Li berties
I1n i on of Il lino i s , Equip for Equ ality , l!eal t h . Disabilit y Advoca t e s , and t h e Nationa l Uea lth La .. Pr ograa> fo r le a ve to file amici curia e brief in s upport of plai ntiffs _a ppella nts a nd s upport i ng r eversal. [ 2049920_1 ) 15c brief tendered . [ 0 -0 ] [ 06 _ 37 05 ] ( a ",yd )

11 / 29/0 6

Di s clos ure S tatelOCnt filed by a ttorney Max Lap erto .a f o r Acc e . . Living; American Civil L i berties I1n i on of Il lino i s ; Equip f or Equ a lity; lI ealth • Di sab ility Advoca t e s ; a nd Tho Na tion al l!ealth La .. Program . (0 6 _ 310 5 ) (20 JJ130 _ 1 ] ( a myd )

Doc k ot as o f Se ptc<!".ber 12, 2007 11, 01 pm

06_370 5 Bertr a nd , Ch ri s t o p h e, et al v . Mar am, Barry S . , et al

11 / 29/0 6

ORDER i u u e d CRANTINC Motion of Access L iving , the Ame ric a n Civil Libertie. I1nion of I llinoi s , Equip for Equa lit y, lI ealt h • Di sab ility Advoca t e s , and t h e Nationa l Uea lth La .. Program f o r Leave to File a n Am ic i Curiae Brief in Su pport of Pla i ntiffs _/l.ppell a n h a nd Suppo rt i ng Revenal. Tho clerk · s o ff ic o s h all file INSTANTER tho t endered aa> icu . brief . (20 49 820_ 1) (20 J1130 _ 1 ] MJO [ 06 _ 3705) (amyd)

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il Hf01

ORDER i ssued CRAN'l' INC motion for exten s ion o f t ime t o file a ppe ll"" 's brief. Briefin'j" will proceed ... foll ow", [2 0 63954 _ 1 ] CIID [ 0 6 _ 37 0 5] 1. Appo llee's brief due 2fl 6 f07 for Jerolene Johns on, f or Ca rol L , Ada ... , f or Ba rry S ,
Mar am . 2 . The repl y brief if any is du e on lf2f07 for Frank Pa tterson, f or Chri st op her Bertr a nd . Furt h er extens i o n. o f tim" ..i ll not be all<»red , e xcept in e xtra ordinary circUa>stances . (amyd )

2f l f 07

Added a ttornoy Ma ry E . We hh per a ppea ranco form . Appoar a nce f orm filed f or Appollec Barry S . ".aram, Appollee Ca rol L . Adams , Appolleo Jeroleno Johnson by at torney Mar y E . Wehh . [06_3705) [20 13730_1 ] (fern)

2f Hf 01

Filed 15c a ppe ll""'s brief by Barry S . ".aram , Ca rol L . Ada ... , Jerol e ne Jo hnw on . Di . k file d . ( 06 _ 3705 ] ( 0_ 0) (ode a )

Doc kot aw o f Se pterlle r 12, 20 0 7 11, 0 1 pm

0 6_ 37 0 5 Bertr a nd , Ch ri s tophe, e t al v . Mar am, Ba rry S . , e t a l

2f23f01

Filed "",tion by Appo11 a nt Ch ristopher !lert rand, Appellan t Frank Pa tterson t o e xt end t ime t o file appolla nt 's reply brief. ( 2077881_ 1) [06 _3705) (jo s h)

2f27f01 lf9f07

ORDER i ssued CRAN'l' INC motion for extension o f t ime t o filo a ppe llants ' reply brief . [2 0 71997 _ 1 ) CIID [ 0 6 _ 37 0 S] Appellanta ' reply brief due lf9f07 for Fra nk Pa tterson, for Chri st op her Be rtr a nd . (fern)
Filed 15c a ppellant 's reply brief by Chris topher !lertrand, Frank Pa tterson . Dis k fi led . [06 _3705) [ 0-0 ] (leti)

lf llf01

ORDER, Ar'l'umc nt s ot fo r Thursda y, May J, 2 00 1 a t 9,3 0 a . J» . Eac h s ido limited to 20 minute • . ( 06 _ 3705 ] ( 209H15 _1 ) (leti)

lfl9f01

Or al ar 'j"wrent con!inoa tion c a rd file d by a ttorney Ma ry E . Weh h f or Appellee Ba rry S . Maram, Appollee Carol L . Ad=:s , Appell"" Jerolene Johns on . (06_3705 ) ( 20337JO_ l) ( karo)

lf20f01

Pursua nt to FRAP 41(c), party Jerolene Johnson hao been removed frolO thi s c ao e a nd rep l a ced by Reoreta Uo a k in, per notifica tion frolO the lL Attorney General ' s Office . [06 _3705) [20 13730_1 ] ( amyd )

4f2f07

Or al ar 'j"wrent con!inoa tion c a rd filed by a ttornoy Robe rt U. Farley f or Appoll a nt Ch risto pher !lert rand, Appellan t Fr ank Pa tterson. [ 06 _3705] [ 2033710_1 ] (karo)

511/ 0 7

Ca s e hea rd and t a ken under a dvi s e=n t by p a nel, Chief Judge Fra nk 11. Eas terbrook, Circuit Judge Joel M. Flaum, Circuit Judge !(enneth F . Ripp le . [ 0 6 _3705) [ 2 100001 _1 ) (kare)

511/ 0 7

Ca s e u 9ued by Robe rt U. Farley for Appell a nt Fran k Pa tterso n , Appell a n t Ch rin opher Bertrand, IIary E. lie lo h for Appe ll ee Reoreta Ho s kin, Appe ll ee Jerol ene John s o n , Appelle<> Carol L . Ad=:s , Appelle<> Ba rry S . IIar am . [ 06 _ 3705) [ 20 13730 _1 ) (kare)

71 24101

F iled opinion of t he court by Judge Eas terbrook . AFFI R.'lED . Chie f Jud<.le Fra n k U. Eas terbrook, Circuit Jud<.le Joe l H. Fl a um a nd Circui t Jud<.le !<:en n eth F . Ripple . (0 6_ 37 0 5 ) [ 20 13730 _1 ) (d.leti)

71 24101

ORDER, Fi n a l j ud9""'nt filed per opin io n . With co s t. , y. [ 06 _3705) [ 2 1240 U _l ) (d.leti)

811/ 0 7

F il ed 15c Petition f or Rehea rin <.l by Appell a nt Ch rin opher Bertrand, Appella nt Frank Pa tterson . Dis l. [ 06 _3705) [ 2 121916_1 ) ( hudk )

8 / 27101

ORDER, Appellan t Chri s topher Bertra nd, Appellan t Frank Pa tterso n Petition f or Rehea rin <.l i. DEN IE D. [ 06 _ 3705) [ 2 121916_1 ) (fer n)

Doc k et as o f Septerller 12, 20 0 7 11, 01 pm

0 6_ 37 0 5 Bertr a nd, Ch ri s tophe, e t al v . IIar am , Ba rry S . , et a l

9H/07

MANDATE I SSUED AND ENTI RE RECORD RETl1RNED . (Contenu returned, 2 vol . ple a di n<.l " r J vol . e x h ibi ts . ) [ 06 _ 37 0 5) [ 20 13730 _1 ) (cove)

9/ 6/07

F iled lMnda t e receipt . [ 06 _ 3105) [ 214 0 428 _ 1 ) ( kare l

Doc k et as o f Septerller 12, 20 0 7 11, 01 pm