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

EDWARD BOUDREAU, by and through his· . )

parents, Edwin and Ann Boudreau, BRIAN

)

BRUGGEMAN, by and through his parents,

)

Kenneth and Carol Bruggeman, FRANCES

)

CORSELLO, by and through her parents,

)

Vincent and Agnes Corsello, ANGELA MOORE, )

by and through her parents, James and Brenda

)

Moore, LINDA SEMPREVIVO, by and through )

her parents, Richard and Ruth Ann Semprevivo, )

GREG BLANEY, JR., by and through his parent, )

Yolanda Duncan, MELISSA COLE, by and

)

through her parents, Frank and Annie Cole,

)

JEFFREY FALCONE, by and through his parents)

Salvatore and Frances Falcone, SEAN STEELE, )

by and through his parents, Gregory and Lee

)

Pionke, DAVID STIMAN, by and through his )

parents, Tony and Tammy Goodman,

)

CHRISTINE AUER, by and through her parents, )

Alfred and Patricia Auer, DOUGLAS WILSMAN, )

by and through his parent, Loretta Holme,

)

SHARON LOWREY, by and through her parents, )

Owen and Susan Lowrey, LEAH JONES,

)

by and through her parents, Lawrence and Kathy )

Jones, individually and on behalf of a class

)

)

Plaintiffs,

)

)

vs.

)

)

)

GEORGE H. RYAN, in his official capacity as )

Governor of the State of Illinois, ANN PATLA, )

in her official capacity as Director of the Illinois )

Department of Public Aid, LINDA RENEE

)

BAKER, in her official capacity as Secretary

)

ofthe Illinois Department of Human Services,

)

MELISSA WRIGHT, in her official capacity )

as Associate Director of the Office of

)

1

~@CK~l~fi'
FEB 1 4 2002:
F Il E D
No. 00 C 5392 JUDGE GRADY MAGISTRATE DENLOW

/)(

Developmental Disabilities,

)

)

Defendants.

)

FOURTH AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Now comes the Plaintiffs, by and through their attorneys, Robert H. Farley, Jr., Ltd. and Thomas G. Morrissey, Ltd. and files the following fourth amended complaint against the Defendants as follows:
INTRODUCTION I. This is a statewide class action brought on behalf of hundreds and hundreds of mentally retarded and developmentally disabled persons who are eligible to receive Medicaid services, but who have not received such services. 2. The named Plaintiffs and other class members are unable to care fully for themselves and require a range of care and treatment, from non-residential assistance with rehabilitative and vocational needs to full-time residential support services to assist them with the most basic aspects of daily life such as toileting, eating, and bathing. As the Plaintiffs fail to receive the services which they are entitled to under the law, they suffer physical and emotional setback and fail to develop to their fullest potential. 3. The Defendants failure to provide Medicaid services to the Plaintiffs with "reasonable promptness" violates Plaintiffs' rights conferred by the Medicaid Act, 42 U.S.C. Sec. 1396(a) and implementing regulations; the American with Disabilities Act (ADA), 42 U.s.C. Sec. 1201 et. seq. and implementing regulations; the Rehabilitation Act, 29 U.S.C. 794 and implementing regulations, as well as their federal constitutional rights to Due Process and Equal Protection.
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Plaintiffs bring this action pursuant to 42 U.S.C. Section 1983 to enforce their federal statutory and constitutional rights. They seek declaratory and injunctive relief to redress defendant's violation of the Medicaid Act, the ADA, the Rehabilitation Act and the federal constitution and to ensure that the receive the medical assistance and care to which they are entitled.
JURISDICTION & VENUE 4. This Court has jurisdiction over plaintiffs' federal law claims pursuant to 28 U.S.C. Sections 1331 and 1343. Venue is proper under 28 U.S.c. Sec. 1391(b).
PARTIES 5. The Plaintiff, Edward Boudreau, is 43 years old and lives with his parents, Edwin and AlU1e Boudreau. The family are residents of South Chicago Heights, Illinois.
(a) Edward Boudreau has profound mental retardation. Edward Boudreau has a substantial functional limitation in self-care; learning; self-direction; mobility; language; and capacity for independent living. Mr. Boudreau needs continual support and supervision throughout his life.
(b) Edward Boudreau currently attends a day program at SouthStar Services. (c) Edward Boudreau is Medicaid eligible and was found by Suburban Access, Inc. on November 17, 1994 to be eligible for medicaid waiver funding; eligible for community integrated living arrangement (ClLA); and eligible for intermediate care facility/ developmentally disabled level of care funding. (d) Edward Boudreau seeks 24 hour per day residential medicaid services in an appropriate community based setting.
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(e) SouthStar Services provides residential medicaid services and offered to provide residential medicaid services to Edward Boudreau subject to Brian Boudreau obtaining funding from the Illinois Department of Human Services / Office of Developmental Disability. (DHS/ODD).
(f) On August 14,2000, the Plaintiff Bourdreau requested that DHS/ODD approve funding for himself to receive residential Medicaid services from SouthStar services.
(g) DHS/ODD has not informed Plaintiff or his parents when or if he will receive
residential Medicaid services at any time in the foreseeable future. (h) Plaintiff is entitled to Medicaid services with reasonable promptness. (i) As the result of the failure ofDHS/ODD to provide residential Medicaid
services to Plaintiff, the Plaintiff Bourdeau is not receiving the therapies, training and other active treatment to which he is entitled by virtue of his eligibility for Medicaid services.
6. The Plaintiff, Brian Bruggeman is 33,Years old and lives with his parents, Kenneth and Carol Bruggeman. The family are residents of Homewood, Illinois.
(a) Brian Bruggeman has mild mental retardation and Down's syndrome. Brian Bruggeman has a substantial functional limitation in self-care; learning; self-direction; language; and capacity for independent living. Brian Bruggeman needs continual support and supervision throughout his life.
(b) Brian Bruggeman currently attends a day program at SouthStar Services. (c) Brian Bruggeman is Medicaid eligible and was found by Suburban Access, Inc. on September 9; 1994 to be eligible for medicaid waiver funding; eligible for community integrated living arrangement (CILA); and eligible for intermediate care facility/ developmentally
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disabled level of care funding. (d) Brian Bruggeman seeks 24 hour per day residential medicaid services in an
appropriate community based setting. (e) SouthStar Services provides residential medicaid services and offered to
provide residential medicaid services to Brian Bruggeman subject to Brian Bruggeman obtaining funding from the Illinois Department of Human Services / Office of Developmental Disability.
(f) On August 14,2000, the Plaintiff Bruggeman requested that DHS/ODD approve funding for himself to receive residential Medicaid services from SouthStar services.
(g) DHS/ODD has not informed Plaintiff or his parents when or if he will receive residential Medicaid services at any time in the foreseeable future.
(h) Plaintiff is entitled to Medicaid services with reasonable promptness. (i) As the result of the failure ofDHS/ODD to provide residential Medicaid services to Plaintiff, the Plaintiff Bruggeman is not receiving the therapies, training and other active treatment to which he is entitled by virtue of his eligibility for Medicaid services. 7. The Plaintiff, Frances Corsello, is 49 years old and lives with her parents, Vincent and Agnes Corsello. The family are residents of Homewood, Illinois. (a) Frances Corsello has mild mental retardation. Frances Corsello has a substantial functional limitation in self-care; learning; self-direction; language and capacity for independent living. Frances Corsello requires on-going support and supervision throughout her life. (b) Frances Corsello currently attends a day program at SouthStar Services. (c) Frances Corsello is Medicaid eligible and was found by Suburban Access, Inc.
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on August 7, 2000 to be eligible for medicaid waiver funding; eligible for community integrated living arrangement (ClLA); and eligible for intermediate care facility! developmentally disabled level of care funding.
(d) Frances Corsello seeks 24 hour per day residential medicaid services in an appropriate community based setting.
(e) SouthStar Services provides residential medicaid services and offered to provide residential medicaid services to Frances Corsello subject to Frances Corsello obtaining funding from the Illinois Department of Human Services! Office of Developmental Disability.
(f) On August 14,2000, the Plaintiff Corsello requested that DHS!ODD approve funding for himself to receive residential Medicaid services from SouthStar services.
(g) DHS!ODD has not informed Plaintiff or her parents when or if she will receive residential Medicaid services at any time in the foreseeable future.
(h) Plaintiff is entitled to Medicaid services with reasonable promptness. (i) As the result of the failure ofDHS!ODD to provide residential Medicaid services to Plaintiff, the Plaintiff Corsello is not receiving the therapies, training and other active treatment to which she is entitled by virtue of her eligibility for Medicaid services. 8. The Plaintiff, Angela Moore, is 29 years old and lives with her parents, James and Brenda Moore. The family are residents of Chicago Heights, Illinois. (a) Angela Moore has severe mental retardation. Angela Moore has a substantial functional limitation in self-care; learning; self-direction; mobility; language; and capacity for independent living. Angela Moore needs continual support and supervision throughout her life. (b) Angela Moore currently attends a day program at SouthStar Services.
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(c) Angela Moore is Medicaid eligible and was found by Suburban Access, Inc. on September 18, 1998 to be eligible for medicaid waiver funding; eligible for community integrated living arrangement (elLA); and eligible for intermediate care facilityl developmentally disabled level of care funding.
(d) Angela Moore seeks 24 hour per day residential medicaid services in an appropriate community based setting.
(e) SouthStar Services provides residential medicaid services and offered to provide residential medicaid services to Angela Moore subject to Angela Moore obtaining funding from the Illinois Department of Human Services I Office of Developmental Disability.
(f) On August 14,2000, the Plaintiff Moore requested that DHS/ODD approve funding for her to receive residential Medicaid services from SouthStar services.
(g) DHS/ODD has not informed Plaintiff or her parents when or if she will receive residential Medicaid services at any time in the foreseeable future.
(h) Plaintiff is entitled to Medicaid services with reasonable promptness. 0) As the result of the failure ofDHS/ODD to provide residential Medicaid services to Plaintiff, the Plaintiff Moore is not receiving the therapies, training and other active treatment to which she is entitled by virtue of her eligibility for Medicaid services. 9. The Plaintiff, Linda Semprevivo, is 37 years old and lives with her parents, Richard and Ruth Ann Semprevivo. The family are residents of Chicago Heights, Illinois. (a) Linda Semprevivo has severe mental retardation. Linda Semprevivo has a substantial functional limitation in self-care; learning; self-direction; language; and capacity for independent living. Linda Semprevivo needs continual support and supervision throughout her
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life. (b) Linda Semprevivo currently attends a day program at SouthStar Services. (c) Linda Semprevivo is Medicaid eligible and was found by Suburban Access,
Inc. on June 23, 2000 to be eligible for medicaid waiver funding; eligible for community integrated living arrangement (elLA); and eligible for intermediate care facility/ developmentally disabled level of care funding.
(d) Linda Semprevivo seeks 24 hour per day residential medicaid services in an appropriate community based setting.
(e) SouthStar Services provides residential medicaid services and offered to provide residential medicaid services to Linda Semprevivo subject to Linda Semprevivo obtaining funding from the Illinois Department of Ruman Services / Office of Developmental Disability.
(f) On August 14,2000, the Plaintiff Semprevivo requested that DHS/ODD approve funding for her to receive residential Medicaid services from SouthStar services.
(g) DRS/ODD has not informed Plaintiff or her parents when or if she will receive residential Medicaid services at any time in the foreseeable future.
(h) Plaintiff is entitled to Medicaid services with reasonable promptness. (i) As the result of the failure ofDHS/ODD to provide residential Medicaid services to Plaintiff, the Plaintiff Semprevivo is not receiving the therapies, training and other active treatment to which she is entitled by virtue of her eligibility for Medicaid services. 10. The Plaintiff, Greg Blaney, Jr. will be 22 years old this month and lives with his mother, Yolanda Duncan. The family are residents of Park Forest, Illinois.
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(a) Greg Blaney, Jr. is developmentally disabled and has Down's syndrome. Jeffrey Falcone has a substantial functional limitation in self-care; learning; self-direction; mobility; language; and capacity for independent living.) Mr. Blaney, Jr. needs continual support and supervision throughout his life.
(b) Greg Blaney, Jr. is currently receiving no services. Mr. Blaney, Jr's. special education services terminated in June, 2000 when he graduated.
(c) Greg Blaney, Jr. seeks day programming Medicaid services and applied for Supported Living Services (SLS) in November, 2000.
(d) In January, 2001, the mother of Greg Blaney, Jr., Yolanda Duncan was informed by Suburban Access, Inc., the Pre-Admission Screening Agency that their was no funds for day programming services for Greg Blaney, Jr.
(e) DHS/ODD has not informed Plaintiff or his mother when or ifhe will receive day programming Medicaid services at any time in the foreseeable future.
(f) Plaintiff is entitled to Medicaid services with reasonable promptness. (g) As the result of the failure ofDHS/ODD to provide day programming Medicaid services to Plaintiff, the Plaintiff Blaney, Jr. is not receiving the therapies, training and other active treatment to which he is entitled by virtue of his eligibility for Medicaid services. 11. The Plaintiff, Melissa Cole is 23 years old and lives with her parents, Frank and Annie Cole. The family are residents of Chicago Heights, Illinois. (a) Melissa Cole is developmentally disabled. Melissa Cole has a substantial functional limitation in self-care; learning; self-direction; mobility; language; and capacity for independent living. Ms. Cole needs continual support and supervision throughout her life.
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(b) Melissa Cole is currently receiving no day programming services. The only services provided to Ms. Cole is day care (babysitting services).
(c) Melissa Cole seeks day programming Medicaid services and applied for Supported Living Services (SLS) in February, 200l.
(d) In February, 2001, the mother of Melissa Cole, Annie Cole was informed by Suburban Access, Inc., the Pre-Admission Screening Agency that their was no funds for day programming services for Melissa Cole.
(e) DHS/ODD has not informed Plaintiff or her parents when or if she will receive day programming Medicaid services at any time in the foreseeable future.
(f) Plaintiff is entitled to Medicaid services with reasonable promptness. (g) As the result of the failure ofDHS/ODD to provide day programming Medicaid services to Plaintiff, the Plaintiff Cole is not receiving the therapies, training and other active treatment to which she is entitled by virtue of her eligibility for Medicaid services. 12. The Plaintiff, Jeffrey Falcone, is 21 years old and lives with his parents, Salvatore and Frances Falcone. The family are residents of Schaumburg, Illinois. (a) Jeffrey Falcone is developmentally disabled and has Down's syndrome. Jeffrey Falcone has a substantial functional limitation in self-care; learning; self-direction; mobility; and capacity for independent living. Mr. Falcone needs continual support and supervision throughout his life. (b) Jeffrey Falcone is currently receiving special education services at Kirk School in Palatine and will graduate in June, 2001. (c) Jeffrey Falcone seeks day programming Medicaid services and applied for
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Supported Living Services (SLS) in February, 2001. (d) In April, 2001, the mother of Jeffrey Falcone, Frances Falcone, was informed
by a representative from the Illinois Department of Human Services / Office of Developmental Disabilities that their was no funds for day programming services for Jeffrey Falcone.
(e) DHS/ODD has not informed Plaintiff or his parents when or ifhe will receive day programming Medicaid services at any time in the foreseeable future.
(f) Plaintiff is entitled to Medicaid services with reasonable promptness. (g) As the result of the failure ofDHS/ODD to provide day programming Medicaid services to Plaintiff, the Plaintiff Falcone is not receiving the therapies, training and other active treatment to which he is entitled by virtue of his eligibility for Medicaid services. 13. The Plaintiff, Sean Steele, is 20 years old and lives with his parents, Gregory and Lee Pionke. The family are residents of Deer Park, Illinois. (a) Sean Steele is developmentally disabled. Sean Steele has a substantial functional limitation in selfwcare; learning; self-direction; mobility; language; and capacity for independent living. Mr. Steele needs continual support and supervision throughout his life. (b) Sean Steele is currently receiving special education services at Kirk School in Palatine and will graduate in June, 2001. (c) Sean Steele seeks day programming Medicaid services and applied for Supported Living Services (SLS) in January, 2001. (d) In April, 2001, the mother of Sean Steele, Lee Pionke was informed by a representative from the Illinois Department of Human Services / Office of Developmental Disabilities that their was no funds for day programming services for Sean Steele.
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(e) DHSJODD has not informed Plaintiff or his parents when or ifhe will receive day programming Medicaid services at any time in the foreseeable future.
(f) Plaintiff is entitled to Medicaid services with reasonable promptness. (g) As the result of the failure ofDHSJODD to provide day programming Medicaid services to Plaintiff, the Plaintiff Steele is not receiving the therapies, training and other active treatment to which he is entitled by virtue of his eligibility for Medicaid services. 14. The Plaintiff, David Stiman, is 21 years old and lives with his parents, Tony and Tammy Goodman. The family are residents of Arlington Heights, Illinois. (a) David Stiman is developmentally disabled. David Stiman has a substantial functional limitation in self-care; learning; self-direction; mobility; language; and capacity for independent Iiving. Mr. Stiman needs continual support and supervision throughout his life. (b) David Stiman is currently receiving special education services at Kirk School in Palatine and will graduate in June, 2001. (c) David Stiman seeks day programming Medicaid services and applied for Supported Living Services (SLS) in February, 2001. (d) On or about April 25, 2001, the mother of David Stiman, Tammy Goodman was informed that their was no funds for day programming services for David Stiman. Ms. Goodman spoke with persons from the Illinois Department of Human Services I Office of Developmental Disabilities without success in obtaining funding approval for David Stiman. (e) DHS/ODD has not informed Plaintiff or his parents when or ifhe will receive day programming Medicaid services at any time in the foreseeable future. (f) Plaintiff is entitled to Medicaid services with reasonable promptness.
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(g) As the result of the failure of DHS/ODD to provide day programming Medicaid services to Plaintiff, the Plaintiff Stiman is not receiving the therapies, training and other active treatment to which he is entitled by virtue of his eligibility for Medicaid services.
15. The Plaintiff, Christine Auer is 33 years old and lives with her parents, Alfred and Patricia Auer. The family are residents of West Chicago, Illinois.
(a) Christine Auer is developmentally disabled and is wheelchair bound. She needs close supervision and assistance with many activities of daily living throughout her life. Christine Auer has a substantial functional limitation in self-care; learning; mobility; and capacity for independent living.
(b) Christine Auer was found on November 14,1994 to be Medicaid eligible by the Pre-Admission Screening Agency, Kane-Kendall Case Coordination Services and to need active treatment I specialized services.
(c) Christine Auer seeks 24 hour per day residential medicaid services in either an appropriate ICF/DD or alternatively, a CILA placement.
(d) Since 1992, Christine has sought both ICFIDD and CILA placement without success from the following agencies:
(i) Ray Graham Association on September I, 1992 declined to accept Christine into their residential program. Ray Graham Association provides both ICFIDD and CILA services. (See Group Exhibit A-I) In 1995, Ray Graham stated that they still had no openings for Christine. (See Group Exhibit A-8) In the Spring of2000, Ray Graham was still unable to provide residential services to Christine.
(ii) Bethesda Lutheran Home on January 28,1993 declined to accept
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Christine into their ICFIDD program as she does not meet their criteria for their ICF/DD service. (See Group Exhibit A-2)
(iii) Little Friends, a CILA provider, acknowledged on September 2, 1993, that Christine has been on their referral (pre-waiting) list since August 28, 1992. That Christine will not move up to their formal waiting list until the agency has some reasonable expectation that they would be able to offer her services. (See Group Exhibit A-3)
(iv) Avenues to Independence on October 27,1995, declined to accept Christine into their CILA program. (See Group Exhibit A-4)
(v) The Association for Individual Development on November 20, 1995, declined to accept Christine into their ICFIDD and other residential programs due to extensive waiting lists. (See Group Exhibit A-5) In 2001, The Association for Individual Development again declined to accept Christine into their ICFIDD program due to lack of vacancies and that there were no vacancies in the foreseeable future. (See Group Exhibit A-I)
(vi) Little City Foundation, an ICF/DD provider and other residential provider, on November 30,1995 declined to accept her into their residential program due to the lack of any openings. (See Group Exhibit A-6)
(vii) Opportunity House on December 12, 1995 had no openings to provide residential services for Christine and placed her on their CILA waiting list. (See Group Exhibit A-7)
(viii) Ray Graham Association on December 13,1995 declined to accept Christine into their residential program there were no openings. Ray Graham Association provides both ICF/DD and CILA services. (See Group Exhibit A-8)
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(ix) Open Door, a elLA provider, in 1995 declined to accept Christine into their residential program as there were no openings. (See Group Exhibit A-9)
(x) Helping Hands Rehabilitation Center, a CILA provider, on February 2, 1996 declined to accept Christine into their residential program as they had no openings. The waiting list for Helping Hands is extensive and a minimum of 5 years plus in length of time. (See Group Exhibit A-IO)
(xi) In the Spring of2000, Ray Graham, a CILA and ICF/DD provider was still unable to provide residential services to Christine.
(xii) The Association for Individual Development on July 1,2001, declined to accept Christine into their ICFIDD program and other residential programs due to lack of vacancies and that there were no vacancies in the foreseeable future. (See Group Exhibit A-II)
(e) DHS/ODD has not informed Plaintiff or her parents when or if she will receive residential Medicaid services at any time in the foreseeable future.
(f) Plaintiff is entitled to Medicaid services with reasonable promptness. (g) As the result of the failure ofDHS/ODD to provide residential Medicaid services to Plaintiff, the Plaintiff Auer is not receiving the therapies, training and other active treatment to which she is entitled by virtue of her eligibility for Medicaid services. 16. The Plaintiff, Douglas Wilsman is 21 years old and lives with his mother (Loretta Holme) and step-father. The family are residents of Wonder Lake, Illinois. (a) Douglas Wilsman is developmentally disabled. He needs supervision and assistance with many activities of daily living throughout his life. Douglas Wilsman has a
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substantial functional limitation in self-care; learning; mobility; and capacity for independent living.
(b) Douglas Wilsman was found on November 20, 2000 to be Medicaid eligible by the Pre-Admission Screening Agency, Options & Advocacy for McHenry County, Inc. to be eligible for an intermediate care facility for the / developmentally disabled (ICF/DO) and eligible for a community integrated living arrangement (CILA).
(c) Douglas Wilsman seeks residential medicaid services in either an appropriate ICF/DD or alternatively, a CILA placement.
(d) Since 2000, Douglas has sought both lCF/DD and elLA placement without success from the following agencies:
(i) elLA services are not available to Douglas as the Department of Human Services has stated in writing that Douglas is not eligible for CILA services because of the "[State] finite resources, your son does not meet our emergency definition. (See Group Exhibit B-1)
(ii) ICF/DD services are not available to Douglas, as Sheltered Village, an ICF/DD provider, refused to provide rCF/DD services as they could not meet his needs, as he requires an environment where he could live more independently than would be allowed under their license. (See Group Exhibit B-2)
(iii) The Pre-Admission Screening Agency, Options & Advocacy for McHenry County, informed DRS/O~~ that the Plaintiff could not locate an appropriate ICF/DD and DHS still refused to authorize a CILA placement. (See Group Exhibit B-3, B-4)
(iv) Plaintiff is on a waiting list with Pioneer Center, a elLA provider
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for residential services, and he is number 35 on a list of 68 persons and two individuals on the list have been waiting for services since 1987. (See Group Exhibit B-6) Even if Pioneer Center moved the Plaintiff to the top of the waiting list and offered to provide ClLA services, DHS/ODD would still not fund the ClLA placement. (See Group Exhibit B-1, B-4)
(e) The Plaintiff has enlisted the support of Illinois State Representative Jack Franks without success to obtain residential services. State Rep. Franks acknowledges that there is a "funding shortage for the CILA program." (See Group Exhibit B-5)
(f) DHS/ODD has not informed Plaintiff or his parent when or if he will receive residential Medicaid services at any time in the foreseeable future.
(g) Plaintiff is entitled to Medicaid services with reasonable promptness. (h) As the result of the failure of DHS/ODD to provide residential Medicaid services to Plaintiff, the Plaintiff Wilsman is not receiving the therapies, training and other active treatment to which he is entitled by virtue of his eligibility for Medicaid services. 17. The Plaintiff, Sharon Lowrey is 25 years old and lives with her parents, Owen and Susan Lowrey. The family are residents of Elgin, Illinois. (a) Sharon Lowrey is developmentally disabled. She needs close supervision and assistance with many activities of daily living throughout her life. Sharon Lowrey has a substantial functional limitation in self-care; self-direction; and capacity for independent living. (b) Sharon Lowrey was found on August 12, 1994 to be Medicaid eligible by the Pre-Admission Screening Agency, Kane-Kendall Case Coordination Services, and to eligible for an intermediate care facility for the I developmentally disabled (rCF/DD) and eligible for a community integrated living arrangement (CILA).
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(c) Sharon Lowrey seeks residential medicaid services in either an appropriate ICF/DD or alternatively, a CILA placement.
(d) Since 1994, Sharon has sought both ICFIDD and CILA placement without success from the following agencies:
(i) In 1995, Misericirdia, a ICFIDD provider was unable to provide residential services to Sharon and she was placed on their referral list. (See Group Exhibit C-l)
(ii) In 1996, Lambs Farm, an ICF/DD provider and other residential provider was unable to provide residential services to Sharon and she was placed on their waiting list. (See Group Exhibit C-2, C-3)
(iii) In 1996, Little City, an ICFIDD provider and other residential provider was unable to provide residential services to Sharon due to lack of vacancies and lack of residential funding sources. She was placed on their waiting list. (See Group Exhibit C-4) In 1998, Little City stated that they were still unable to predict when an opening would occur. (See Group Exhibit C-6)
(iv) In 1996, The Association for Individual Development, a provider of ICF/DD and CILA services was unable to provide residential services to Sharon and placed her on their waiting list. (See Group Exhibit C-5)
(v) In 1996, G1enkirk, a elLA and former ICF/DD provider (IeF/DD closed approximately 1996) was unable to provide residential services to Sharon and she was placed on their waiting list.
(vi) In 1996, Clearbrook, an ICF/DD and CILA provider was unable to provide residential services to Sharon and she was placed on their waiting list.
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(vii) In 1997, Meadows (Zachary House) an ICFIDD provider was unable to provide residential services to Sharon and she was placed on their waiting list.
(viii) In 1998, Little City, an ICFIDD provider and other residential provider was unable to provide residential services to Sharon due to lack of vacancies. (See Group Exhibit C-6)
(ix) In 2001, The Association for Individual Development, a provider of ICF/DD and CILA services, informed Sharon that there were no openings for ICF/DD services.
(e) DRS/ODD has not informed Plaintiff or her parents when or if she will receive residential Medicaid services at any time in the foreseeable future.
(f) Plaintiff is entitled to Medicaid services with reasonable promptness. (g) As the result of the failure of DRS/ODD to provide residential Medicaid services to Plaintiff, the Plaintiff Lowrey is not receiving the therapies, training and other active treatment to which she is entitled by virtue of her eligibility for Medicaid services. 18. The Plaintiff, Leah Jones is 20 years old and lives with her parents, Lawrence and Kathy Jones. The family are residents of West Dundee, Illinois. (a) Leah Jones is developmentally disabled. She needs close supervision and assistance with many activities of daily living throughout her life. Leah Jones has a substantial functional limitation in self-care; self-direction; mobility and capacity for independent living. (b) Leah Jones was found on March 27,1999 to be Medicaid eligible by KaneKendall Case Coordination Services, and to eligible for an intermediate care facility for the / developmentally disabled (ICF/DD) and eligible for a community integrated living arrangement (CILA).
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(c) Leah Jones seeks residential medicaid services in either an appropriate rCF/DO or alternatively, a CILA placement.
(d) Since 1999, Leah has sought both ICF/DD and elLA placement without success from the following agencies:
(i) In 1999, Misericordia, an ICF/DD provider was unable to provide residential services to Leah due to no vacancies and the parents were told that the waiting list was 10 - 15 years..
(ii) In 1999, Lambs Farm; an ICF/DD provider was unable to provide residential services to Leah and they placed her on their waiting list.
(iii) In August, 2000, Clearbrook Center, a provider ofICF/DD and CILA was unable to accept Leah into their residential program and placed her on their waiting list.
(iv) In August, 2000, Little Friends, a provider of CILA services was unable to accept Leah into their residential program and placed her on their waiting list.
(v) In 2001, The Association for Individual Development, a provider of ICF/DD and elLA services was unable to accept Leah her into their residential programs due to extensive waiting lists and Leah has been placed on their waiting list.
(e) DHS/ODD has not informed Plaintiff or her parents when or if she will receive residential Medicaid services at any time in the foreseeable future.
Cf) Plaintiff is entitled to Medicaid services with reasonable promptness.
(g) As the result of the failure ofDHS/ODD to provide residential Medicaid services to Plaintiff, the Plaintiff Jones is not receiving the therapies, training and other active
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treatment to which she is entitled by virtue of her eligibility for Medicaid services. 19. Defendant George H. Ryan is the Governor of the State of Illinois and is being sued
in his official capacity. His office is responsible for ensuring that the agencies of the State's Executive Branch, including the Illinois Department of Human Services (DHS) and the Illinois Department of Public Aid (DPA), act in compliance with the Constitution and the laws ofthe United States.
20. Defendant Ann Patla is the Director of the Illinois Department of Public Aid (DPA) and is being sued in her 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.
21. Defendant Linda Renee Baker, as Secretary of the Illinois Department of Human Services (DHS) is being sue in her official capacity.
(a) Pursuant to an interagency agreement with DPA, Defendant Baker's 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 ofthe 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. 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 waiver. The point of entry into the program is
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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 habilitation, personal care, adaptive equipment and minor modifications to the home.
22. Defendant Melssa Wright is the Associate 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 23. Plaintiffs bring this action as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. 24. The Class consists of "All developmentally disabled or mentally retarded individuals residing in the Counties of McHenry, Lake, Kane, Cook, DuPage, Kendall, Grundy, Will and Kankakee, in the State of Illinois, who are eligible to receive Medicaid services and who have not promptly received either Intermediate Care Facility for the Developmentally Disabled (lCF/DD) or Community Integrated Living Arrangement (ClLA) placement." 25. 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. 26. Plaintiffs are adequate representatives of the class because they suffer from deprivations identical to those of the class members and have been denied the same federal rights
22

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.
27. The claims of the class members raise common questions of fact, including whether individuals eligible for Medicaid services are being provided such services with reasonable promptness. The claims of the class members also raise common questions oflaw, including the interpretations of the Medicaid Aid. The common questions of fact and law predominate over questions affecting only individual class members.
28. A class action is superior to other available methods for the fair and efficient adjudication of the controversy in that:
(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 29. 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
23

United States Department of Health and Human Services ("HHS"). 30. 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.
31. 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)(10)(A), I 396d(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)(l0)(C); 42 C.F.R. Section 435.4.
32. One optional service that a participating state may provide is care for eligible individuals in an "intermediate care facility for the mentally retarded ("ICF/MR"). 42 U.S.c. Sections 1396d(a)(l5), (d). 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 ofHHS that permits the state to provide such services in place ofICF/MR care. rd. at Section 1396n(c)(1). Once a state commits to provide optional services, it must provide them in compliance with the requirements of the Medicaid Act.
33. (a) The State ofIllinois participates in the Medicaid program and has filed a State Plan with the federal government. In the State Plan, the State of Illinois has committed to provide Medicaid services to both the categorically needy and the medically needy.
24

(b) The State of Illinois Medicaid program includes ICF/MR or ICF/DD ("intermediate care facility for the developmentally disabled") services for eligible individuals. ICF/MR or ICF/DD 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. l396d(d); 42 C.F.R. Sec. 483.45; 42 C.F.R. Sec. 483.400(a)(1)(i)-(ii).
34. The State of Illinois was granted approval by the Secretary of HHS to operate a "Home and Community Based-Service (HCBS) waiver program to provide services to individuals with mental retardation or developmental disabilities who would otherwise require ICF/MR level of care effective June 1, 1991. Waivers are approved for an initial three year period and can be renewed for five year periods. The State of Illinois' waiver has been renewed on July 1, 1994 and July 1,1999. Pursuant to its waiver program, the State of Illinois guarantees to eligible mentally retarded and developmentally disabled individuals the choice between rCF/MR services and home or community-based care. Waiver services are a cost effective alternative to higher cost, less integrated institutional care in an rCF/MR.
35. The State of Illinois' waiver plan provides that individuals who are determined to be eligible for "waiver"services shall be given the choice of either institutional or home and community-based services, and it provides for the opportunity for a fair hearing for eligible persons who are not given this choice. HHS reviews the State of Illinois waiver program to
25

make sure that it provides for choice and a fair hearing. 36. Individuals who are eligible for "waiver"services are also guaranteed a choice
between those services and rCF/MR or rCF/DD care by the Medicaid Act itself, 42 U.S.c. Section 1396n(c)(2)(C), and by other federal statutes and regulations. Both the Americans with Disabilities Act, 42 U.S.C. Section 12132, and the Rehabilitation Act, 29 U.S.C. Section 794, prohibit public entities and recipients of federal funds from discriminating against any individual by reason of disability. The implementing regulations for those statues require that public and federally-funded entities provide programs and activities "in the most integrated setting appropriate to the needs of the qualified" individual with a disability. 28 C.F.R. Sections
35. 130(d), 41.51(d). Eligible individuals therefore are entitled to choose home and community-
based services that are more "integrated" than institutional care. 37. 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. 38. (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, "[f]urnish 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 "[tJhe agency must establish time standard for determining eligibility and inform the applicant of what they are." 42 C.F.R Sec. 435.911(a) (1996). These period are not
26

to exceed "[n]inety days for applicants who apply for Medicaid on the basis of disability" or "[fJorty-five days for all other applicants." 42 C.F.R. Sec. 435.911 (a)(I)-)(2) (1996). Moreover, the agency "must not use the time standards" as "a waiting period." 42 C.F.R. Sec. 435.911(e)(l) 1996.
39. Section 1396a(a)(3) further provides that a State plan must "provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness."
40. Despite the Medicaid Act's clear command that eligible individuals receive care and services with "reasonable promptness," the Defendants have failed to provide much-needed services to the hundreds and hundreds members of the Plaintiff class.
41. rCF/DD services are not readily available in Counties of McHenry, Lake, Kane, Cook, DuPage, Kendall, Grundy, Will and Kankakee, in the State of Illinois.
42. Appropriate ICF/DD services are not readily available in Counties of McHenry, Lake, Kane, Cook, DuPage, Kendall, Grundy, Will and Kankakee, in the State of IlJinois.
43. Appropriate ICF/DD services are not readily available throughout the State of Illinois.
44. The Plaintiffs are eligible developmentally disabled and mentally retarded individuals and are currently denied Medicaid services to which they are entitled.
45. 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.
27

COUNT I
VIOLATION OF MEDICAID ACT, 42 V.S.c. SECTION 1396a(a), AND 42 V.S.C SECTION 1983
46. The Plaintiffs repeat and incorporate by reference as though fully set forth here the facts contained in paragraphs 1 through 45 above.
47. 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 Medicaid services to Plaintiffs with reasonable promptness, even though the Plaintiffs are eligible to receive such services.
48. Defendant, 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.
49. Defendant, while acting under color of law, have violated and are violating Plantiffs' 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.
50(A). Defendant, while acting under color oflaw, have violated and are violating Plaintiffs rights to provide Medicaid services "in all political subdivisions of the state," 42 U.S.C. Sec. 1396a(a)(1), and the provision of said services ["shall not be less in amount, duration or scope than the medical assistance made available to any other such individual 42 U.S.C. Sec. 1396a(a)(l0)(B)(i).
50(B). Defendant, while acting under color of law, have violated and are violating Plaintiffs rights to provide Medicaid services in a manner consistent with the best interest of the recipients, 42 U.S.C. Sec. 1396a(a)(19).
28

50(C) Defendant, while acting under color of law, have violated and are violating Plaintiffs rights to have medical assistance under the Medicaid Act be available to eligible recipients from qualified providers of their choice, 42 U.S.c. Sec. 1396a(a)(23).
51. Defendants, while acting under color of law, have violated and are violating Plaintiffs' rights under 42 U.S.c. Section 1396a(a)(3) and 42 U.S.C. Section 1983 by failing to provide a fair hearing for any individual whose claim for Medicaid services is not acted upon with reasonable promptness.
52. As a result of the acts and omissions of the Defendants, the named Plaintiffs and other class members 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 and other class members will continue to suffer such deprivations in the future absent relief from this Court.
COUNT II VIOLATION OF DUE PROCESS AND 42 U.S.C. SECTION 1983 53. The Plaintiffs repeat and incorporate by reference as though fully set forth here the facts contained in paragraphs I through 45 above. 54. Because the Plaintiffs are eligible for Medicaid services, they have a property right that may not be abridged without due process of law. Moreover, section 1396a(a)(3) of the Medicaid Act specifically requires a fair hearing for any individual whose claim for Medicaid services is not acted upon with reasonable promptness.
29

55. Defendants, while acting under color oflaw, have violated and are violating plaintiffs' Due Process rights under the Fifth and Fourteenth Amendment of the Constitution and 42 U.S.C. Section 1983 by failing to provide Medicaid services for which the Plaintiffs are eligible without any hearing.
56. As a result of these arbitrary delays and denials of Medicaid services to which the named Plaintiffs and other class members are entitled, they 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 and other class members will continue to suffer such arbitrary deprivations in the future absent relief from this Court.
COVNTIII VIOLATION OF AMERICAN WITH DISABILITIES ACT (ADA)
AND 42 V.S.C SECTION 1983 57. The Plaintiffs repeat and incorporate by reference as though fully set forth here the facts contained in paragraphs I through 45 above. 58. Title II of the American with Disabilities Act (ADA) provides that no qualified person with a disability shall be subjected to discrimination by a public entity. 42 U.S.c. Sec. 42 U.S.C. Sec. 1201 et. seq. A public entitle shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. 28 C.F.R. Sec. 35.130(d) (1998). 59. Plaintiffs are qualified individuals with disabilities and are eligible for residential and non-residential Medicaid services but are not receiving all services under the State plan.
30

Plaintiffs are qualified for the Home and Community Based-Service (HCBS) waiver program. A community placement or community services are the most integrated setting appropriate to Plaintiffs needs and Plaintiffs desire community-based treatment / services. The Plaintiffs community-based placements / services can be reasonably accommodated.
60. The Defendants failure to place Plaintiffs in a community-based program, after the Pre-Admission Screening (PAS) Agency or Service Coordinator found such placements appropriate and after the Plaintiffs desired such placements, violated Title II of the ADA.
61. That after Plaintiff has been found to be qualified for a community-based program, the failure of the Defendants to provide these services in the "most integrated setting appropriate" to her/his needs, violates the ADA.
62. The State of Illinois does not have a comprehensive, effectively working plan for placing qualified persons with mental disabilities and developmental disabilities in less restrictive settings.
63. The State of Illinois does not have a comprehensive, effectively working plan for placing qualified persons with mental retardation and developmental disabilities in less restrictive settings with reasonable promptness.
64. The State of Illinois does not have a comprehensive, effectively working plan for placing qualified persons with mental retardation and developmental disabilities who are in need of residential medicaid services with reasonable promptness.
65. The State of Illinois does not have a comprehensive, effectively working plan for placing qualified persons with mental retardation and developmental disabilities who are in need of nonresidential (day programming) medicaid services with reasonable promptness.
31

66. The State of Illinois does not have a waiting list for placing qualified persons with developmental disabilities or mental retardation in less restrictive settings.
67. The State of Illinois does not have a waiting list for placing qualified persons with developmental disabilities or mental retardation in community based settings.
68. The State of Illinois does not have a waiting list for placing qualified persons with developmental disabilities or mental retardation who are in need of residential Medicaid services.
69. The State of Illinois does not have a waiting Jist for placing qualified persons with developmental disabilities or mental retardation who are in need of nonresidential (day programming) Medicaid services.
70. Defendants, while acting under color of law, have violated and are violating Plaintiffs' right under Title II ofthe American with Disabilities Act and 42 U.S.C. Section 1983.
71. As a result of the acts and omissions of the Defendants, the named Plaintiffs and other class members 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 and other class members will continue to suffer such arbitrary deprivations in the future absent relief from this Court.
COUNT IV VIOLATION OF REHABILITATION ACT AND 42 V.S.C SECTION 1983 72. The Plaintiffs repeat and incorporate by reference as though fully set forth here the facts contained in paragraphs 1 through 45 above. 73. The Rehabilitation Act, 29 U.S.C. Sec. 794, prohibits public entities and recipients of
32

federal funds from discriminating against any individual by reason of disability. The implementing regulation for the statute requires that public and federally-funded entities provide programs and activities "in the most integrated setting appropriate to the needs of the qualified individual with a disability." 28 C.F.R. Section 41.51(d).
74. The Defendants fail to administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.
75. The Plaintiffs are entitled to choose home and community-based services that are more "integrated" than institutional care.
76. Plaintiffs are individuals with disability under the Rehabilitation Act. 29 U.S.c. Sec. 705(9).
77. Plaintiffs are qualified individuals with disabilities and are eligible for Medicaid services but are not receiving services under the State plan. Plaintiffs are qualified for the Home and Community Based-Service (HCBS) waiver program. A community placement is the most integrated setting appropriate to Plaintiffs needs and Plaintiffs desire community-based treatment. The Plaintiffs community-based placements can be reasonably accommodated.
78. The Defendants failure to place Plaintiffs in a community-based program, after the Pre-Admission Screening (PAS) Agency or Service Coordinator found such placements appropriate and after the Plaintiffs desired such placements, violated the Rehabilitation Act.
79. That after Plaintiff has been found to be qualified for a community-based program, the failure of the Defendants to provide these services in the most integrated setting appropriate to her/his needs, violates the Rehabilitation Act.
80. The State of Illinois does not have a comprehensive, effectively working plan for
33

placing qualified persons with developmental disabilities or mental retardation in less restrictive settings.
81. The State of Illinois does not have a comprehensive, effectively working plan for placing qualified persons with mental disabilities and developmental disabilities in less restrictive settings.
82. The State of Illinois does not have a comprehensive, effectively working plan for placing qualified persons with mental retardation and developmental disabilities in less restrictive settings with reasonable promptness.
83. The State of Illinois does not have a comprehensive, effectively working plan for placing qualified persons with mental retardation and developmental disabilities who are in need of residential medicaid services with reasonable promptness.
84. The State of Illinois does not have a waiting list for placing qualified persons with developmental disabilities or mental retardation in less restrictive settings.
85. The State of Illinois does not have a waiting list for placing qualified persons with developmental disabilities or mental retardation in community based settings.
86. The State of Illinois does not have a waiting list for placing qualified persons with developmental disabilities or mental retardation who are in need of residential Medicaid services.
87. As a result of the acts and omissions of the Defendants, the named Plaintiffs and other class members 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 and other class members will continue to suffer such arbitrary deprivations in the
34

future absent relief from this Court.
COUNT V VIOLATION OF EQUAL PROTECTION AND 42 V.S.C SECTION 1983 88. The Plaintiffs repeat and incorporate by reference as though fully set forth here the facts contained in paragraphs I through 45 above. 89. The Plaintiffs have similar disabilities and needs to those of individuals who have received and are presently receiving all Medicaid services for which they are eligible. Defendants have no rational basis for denying the Plaintiffs Medicaid services and waiver services to which they are entitled, while providing such services to other similarly situated developmentally disabled and mentally retarded individuals. 90. Defendants, while acting under color of law, have violated and are violating Plaintiffs' right to Equal Protection of the laws guaranteed by the Fourteenth Amendment of the Constitution and 42 U.S.C. Section 1983. 91. As a result of this arbitrary, discriminatory treatment supported by no rational basis, the named Plaintiffs and other class members 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 and other class members will continue to suffer such arbitrary deprivations in the future absent relief from this Court.
35

REQUEST FOR RELIEF WHEREFORE, the Plaintiff class respectfully requests that this Court: (a) Certify the Plaintiff class of "All developmentally disabled or mentally retarded individuals residing in the Counties of McHenry, Lake, Kane, Cook, DuPage, Kendall, Grundy, Will and Kankakee, in the State of Illinois, who are eligible to receive Medicaid services and who have not promptly received either Intermediate Care Facility for the Developmentally Disabled (ICF/DD) or Community Integrated Living Arrangement (CILA) placement" and order that Plaintiffs may maintain this action as a class action pursuant to Fed. R. Civ. P. 23; (b) Enter Judgment in favor of the Plaintiffs and hold that the Defendants' failure to provide Medicaid services to the Plaintiffs violate 42 U.S.c. Section 1983, the Medicaid Act, 42 U.S.c. Section 1396a(a), the Americans with Disabilities Act, the Rehabilitation Act, the Fifth and Fourteenth Amendments of the Federal Constitution; (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 the Plaintiffs the full range ofICF/MR services or home and community-based waiver services and other services for which they are eligible within 90 days or some other specifically-defined, reasonably prompt period; (d) 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 the Plaintiffs who are eligible for "waiver" services the choice of receiving ICF/MR or home and community-based services that are suitable for their needs within 90 days or some other specifically-defined period - a choice that is required by the State of Illinois waiver program,
36

by the Medicaid Act, 42 U.S.C. Section 1396n(c)(2)(C), and by federal statutes and regulations entitling disabled persons to services in the "most integrated setting" appropriate to their individual needs, see 42 U.S.c. Section 12132 (Americans With Disabilities Act); 29 U.S.C. Section 794 (Rehabilitation Act); 28 C.F.R. Sections 35,130(d), 41.51(d);
(e) Award Plaintiffs the costs of this action, including reasonable attorneys fees, pursuant to 42 U.S.c. Section 1988; and
(f) Award such other reljefas the Court deems just and appropriate.
Robert H. Farley, Jr. Robe11 I-L Farley, Jr., Ltd. 1155 S. Washington Street Naperville, IL 60540 Phone: 630-369~0103 Fax: 630-369~0 195
Thomas G. Morrissey Thomas G. Morrissey, Ltd. 10249 S. Western Avenue Chicago, 1L 60643 Phone: 773-233-7900 Fax: 773-239-0387
37

SEE CASE FILE FOR
EXHIBITS

 
 , lIl' ,_,"~ .. ,'iJf':

Matter No. 797 175/SMPuiszis

IN THE UNITED STArES DISTRICT COURT

I l"'>( E" D FOR THE NORTHE~ DISTRICT OF ILLIN~

"

EASTERN DIVISION,.,

EDWARD BOUDREAU, by and through his parents, Edwin )

and AM Boudreau, BRIAN BRUGGEMAN, by and through his)

parents, Kenneth and Carol Bruggeman, FRANCES

)

CORSELLO, by and through her parents, Vincent and Agnes )

Corsello, ANGELA MOORE, by and through her parents,

)

James and Brenda Moore, LINDA SEMPREVIVO, by and )

through her parents, Richard and Ruth Semprevivo, individually)

and on behalf of a class,

)

)

Plaintiffs,

)

)

vs.

)

)

GEORGE H. RYAN, in his official capacity as Governor of the )

State ofIllinois, ANN PATLA, in her official capacity as

)

Director of the Illinois Department of Public Aid, LINDA

)

RENEE BAKER, in her official capacity as Secretary of the )

Illinois Department of Human Services, :MELISSA WRIGHT, )

in her official capacity as Associate Director of the Office of )

Developmental Disabilities,

)

)

Defendants. )

JAN 112D02

MICHAEL

"

CLERK, U. S W. _DUBBINS

. DIS T"p"il~"-r' COURT

No. OOC 5392

DOCKETED
JAN 1 42002

JUDGE GRADY

MAGISTRATE DENLOW

NOTICE OF FILING

TO: Robert H. Farley, Jr., Robert H. Farley, Jr.; Ltd., 1155 S. Washington, Naperville, IL 60540 Thomas G. Morrissey, Thomas O. Morrissey, Ltd., 10249 S. Western Avenue, Chicago,IL 60643

PLEASE TAKE NOTICE that on January 11,2002 we will file with the Clerk of the Circuit Court of Cook County, Illinois, Defendants' Memorandum of Law on Statewideness and Medicaid Recipients' Right to Placement in Close Geographic Proximity to Family, a copy ofwhich is attached hereto and herewith served upon you.

222 North LaSalle Street Suite 300 Chicago, IIlinois 60601-1081 (312) 704-3000

797175/1007022,l·HC01_DS1A

,"

. '

PROOF OF SERVICE
I, Diane Barnes, a non-attorney, being first duly sworn on oath depose and state that I served the foregoing Notice on all counsel ofrecord by mailing a copy ofsame from the U.S. Mail located at 222 North LaSalle Street, Chicago, Illinois on January 11,2002.

SUBSCRIBED AND SWORN TO before me this 11th day of
~ry,2002. ~
~#-a&t40~~
Notary Public

797175/1007022.I-HCOI_DSIA

"· .

I 1-1 IN THE UNITED STATES DISTRICT COUR'lf:
D FOR THE NORTHERN DISTRICT OF ILLINOIS

~ ".... ~

EASTERN DIVISION .

J;j}~1 11
nv 2a02

EDWARD BOUDREAU, by and through

)

his parents, Edwin and Ann Boudreau, et ai., )

individually and on behalf of a class,

)

MICHAEL

CLERK ,

U.S.

W. DOBBINS
DIS'TRIC .....

T COURT

)

P-laintiff.s, J
)

. :~'" "

.',

vs.

)

No. 00 C 5392

) GEORGE H. RYAN, in his official capacity as )

Judge Grady

DOCKETED .

Governor of the State of Illinois, et ai.,

)

Magistrate Denlow

)

JAN 1 4 ZOOl

Defendants. )

DEFENDANTS' MEMORANDUM OF LAW ON STATEWIDENESS AND MEDICAID RECIPIENTS' RIGHT TO PLACEMENT IN CLOSE GEOGRAPHIC PROXIMITY TO FAMILY

After ten days of hearing and twenty-three witnesses, Plaintiffs have completed their

evidence in support of the motion for class certification. Through lay and expert witnesses, they

have articulated a claim, purportedly on behalf of a class of persons with mental retardation and

developmental disabilities eligible for and denied Medicaid services. The claim is that the Illinois

Medicaid Plan does not provide for them to receive "active treatment" as required by the Me4ic(l,ig ..

~,' ':>.,' :", ";,,:: _i,

' .. ~.,,~ .':. . :~.';'<."'.,

'" '", ..: ~,~':'..c> .<:::J;" ~~;:.;._.: .: '~.:. ~~/.:; ;.. ,

':".

,> '", '", . -: "~'.; ~·'f~~-i·""::;::;::;?j~\';;'l,;.

-:.:.< .';-;",' ~~. "," ';;~":.;_ ..~ ..,.-. ~.-',~'.<~~: ..: ...... '.~\,.">~..r;. ~~' .~:~'.-_~._ r. '~...~. ? ..

Act and regulations thereWlder because, they claim, there are not sufficient vacancies in IeF/MR

,.

facilities for persons in the nine-county area to receive services within an unspecified close

geographic proximity to their families.

This claim was first asserted two weeks into the hearing on November 28, 2001, by the

addition of a paragraph to the expert report of Dr. Susan Parish, which was faxed to the offices of

Defendants' counsel at 2:22 PM, the day before her testimony. This newly articulated theory does

not appear in any ofthe Plaintiffs' pleadings, nor is it contained in Plaintiffs' memorandum oflaw

. .. .- ~.. :

79717S/I0730J2.6·HCOl_DSIA

submitted in support ofthe motion for class certification. Defendants have objected to the assertion of this new claim.1
There is no legal basis for the claim that the Medicaid Act requires services in an ICFIMR to be made available at a location that serves the convenience ofthe recipient's family. This is a far cry from the argument advanced to defeat Defendants' motion to dismiss the Amended Complaint, which was that the five plaintiffs whose claims were then being presented had received no response from the State of Illinois to their requests for residential placement, despite waiting up to seven years. 2
Plaintiffs' core argument is simply that an ICFIMR placement in close geographical proximity to the family residence makes such good sense that it must be required by some legal mandate. Justice Blackmun once observed that, "Sometimes, the intuitively sensed obviousness of a case induces a rush to judgment, in which a convenient rationale is too readily embracedwithout
full consideration of its internal coherence or future ramifications. II 0 'Bannon v. Town Court Nursing Center, 447 U.S. 773, 804, 100 S.Ct. 2467, 65 L.Ed.2d 506, 530 (1980)(concurring
opinion). The palpable need of the Plaintiffs and other Illinois citizens with mental retardation or developmental disabilities induces just such a rush to judgment; the wide discretion Congress conferred on the States in providing Medicaid benefits and vital institutional concerns such as

1Because the claim being asserted now is materially different from the claim that was considered by the court in the original motion to dismiss, the points made and case law cited in this memorandum are also submitted in support ofthe motion to dismiss the Third Amended Complaint. These points also bear on class certification because the would-be class representative Plaintiffs must demonstrate that they possess a colorable claim, which is required to establish standing to sue as a class representative. It was in a memorandum in support ofthe motion for class certification that Plaintiffs first asserted the theory thattheir rights were violated by an allegedly disproportionate concentration of private ICFIDD facilities located in the State's other 93 counties. The shifting sands on which Plaintiffbase their claims are responsible for the fact that the court must consider the present legal issues for the first time in the context ofclass certification, rather than on a motion to dismiss.
2This was false in two resp~cts. First, the original five Plaintiffs were all provided with PAS Agent services-to the extent they sought th~fll and followed up on efforts of the PAS Agent-and were provided with appropriate information. Second. all but one of the Plaintiffs sought placement in a ClLA and all demanded that they be provided with placement with a particular provider, and to have new vacancies created for them, and the remaining Plaintiff sought placement only in one specific ICFIMR that would not accept him.

-2-

79717SII 073032.6-HCO l_DS IA

sovereign immunity and Constitutional limits on federal power must not be overlooked simply because they require more careful reflection.
Plaintiffs' Active Treatment Theory As Articulated During The Hearing We address Plaintiffs' present theory without attempting to catalog the shortcomings in evidence presented to support it. Plaintiffs' claim, as counsel now articulates it, is that ifICFIMR services are provided in a location close to the recipient's family, it will be convenient for the family to visit the recipient and participate in his or her habilitation or treatment.3 Plaintiffs assert that such proximity is required because: (1) The regular presence of family members is needed to provide "active treatment" to
assist in the development and improvement ofskills. This cannot happen unless the family lives nearby.4 (2) Persons with mental retardation and developmental disabilities desire frequent contact with family members, and family relationships can help to overcome the limited social network of a developmentally disabled individual as well as the disruption caused by staffturnover.5 (3) Persons with mental retardation and developmental disabilities are especially subject to abuse and neglect by the staff of provider agencies. The frequent presence of family members is important as a form ofprogram oversight and quality assurance. Families who are actively involved are much more likely to be able to detect and report problems.

3The term "habilitation," rather than "treatment," is technically the correct term with respect to persons with mental retardation or developmental disabilities, since these disabilities are not illnesses, as, for example, is the case with mental illness. Since the Supreme Court has noted this distinction but has chosen to use both terms interchangeably, Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 6, 101 S.Ct. 1531,67 L.Ed2d 694, 701 n. 1(1981), Defendants will do so here as well.

4If this is the theory Plaintiffs rely upon, then the class definition must be revised accordingly. Persons whose family members are no longer alive, or who are not willing or able to commit the time and expense required to actually be providing "active treatmentll to the ICFIMR resident sufficient to justify accommodating their convenience should be excluded from the Class.

SPlaintiffs do not offer a legal basis for an entitlement to optimal IIwell-being. II There is none.

-3-

79711S/107.3032.6-HC01_DS1A

Plaintiffs insist that the State is obligated to ensure that there is a vacancy in a facility close to each

Medicaid recipient's family residence in the nine-county area. Plaintiffs claim it has not done so.

Plaintiffs' Statewideness Theory As Articulated D~rine The HearinK

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Plaintiffs have argued variously that (1) the State is required to have an ICFIMR in every

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county of the state;(2) ICFIDD's are not distributed evenly across the state; and (3) there allegedly

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are not enoug4 yac.~cies in IQF(DD,'s ,l()c:at~qJn~e n,()nPeas,t~mgil;l,~_cQl;ll1t!es()ftheState t() serve

everyone

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placement.
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Plaintiffs' "Small Size" ICFIMR Claim

Defendants offered testimony that the developmental disabilities service system is presently

in a transition stage from institutional to community-based care. In arguing against DefeIldants'

position that ICFIMR services in a facility of any size are "institutional" services, Plaintiffs have

articulated a theory that they are entitled to receive ICFIMR services in facilities ofa particularly

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small size. Just as they provide no identifiable benchmark for what geographical proximity is

necessary to satisfy the Medicaid Act, they provide no specification of what the required threshold

ICFIMR size is. Two possibilities are suggested by the testimony: (1) the reference to a State

regulatory designation of "ICFIDD 16 and under" facilities; and (2) those ICFIDD's having four to

six persons (which Plaintiffs claim are identical, for habilitation purposes, to a Community

.

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provided in a community-based setting, which, it will be seen below, is a contradiction in terms...

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Necessity of A Clear and UnambiKuous Legal Standard

This memorandwn is intended to assist the Court's inquiry into whether there is a legal

standard that satisfies the requirements of both the law governing sovereign immunity under the

Eleventh Amendment and 42 U.S.C. §1983.

Unambiguous Obligation RequiredBy Section 1983. The only basis.for any ofthe statutory

claims being presented here is the State's receipt ofMedicaid funding from the federal government.

The federal authority to regulate the delivery ofMedicaid services by the State ofIllinois is premised

6Defendants accept the court's unequivocal statement that elLA and other waiver services are not a part of the claim being asserted herein, since waiver services are statutorily subject to numerical limitations.

-4-

79717511073032.6-HCOI_DSIA

on the Spending Clause. The theory is that this otherwise purely state function-how Illinois chooses

to spend its tax money to provide free services for persons with mental retardation and

"

-

develo}:lmel1tal~is"abilitie~~~s1?~~?~~t\VitWnthef~~~~~l,p~!~:v~ya~f;:ep~ffil:c~9f.fe,der~fin~cial

support in exchange for a voluntary, contract-like agreement by the State to follow federal

requirements in providing medical assistance.

Pennhurst State School v. Halderman, 451 U.S. 1, 101 S.Ct. 1531,67 L.Ed.2d 694 (1981)

and its progeny illustrate the line between an obligation that is clear and unambiguous and one that

is either aspirational or otherwise insufficient to create federal rights. The crux ofthe matter is this:

Spending Clause legislation is in the nature ofa contract between the federal government, and States

cannot be bound by hidden conditions. l1Thus, if Congress intends to impose a condition on the

grant offederal monies, it must do so unambiguously." Pennhurst, 451 U.S. at 17, 24-25, 67L.Ed.2d

at 707, 712:

The legitimacy of Congress' power to legislate under the spending po\Ver thus rests on whether the State voluntarily and knowingly accepts the terms· ofthe 'contract.' There can, ofcourse, be no knowing acceptance ifthe State is unaware of the conditions or is unable to ascertain what is expected of it.

That canon applies with greatest force where, as here, a State's potential obligations under the Act are largely indeterminate. . . The crucial inquiry ... [is] whether Congress spoke so clearly that we can fairly say that the State could make an informed choice.

In Pennhurst, the Court found that a Medicaid "bill of rights" provision declaring that "persons with developmental disabilities have a right to appropriate treatment, services and habilitation...[which] should be provided in the setting that is least restrictive of the person's personal liberty...11 did not give rise to enforceable rights. Because other provisions ofthe law were more specific in nature, and because the obligationwas so far-reaching that Congress would not have imposed such a sweeping and expensive obligation without being more explicit, the Court concluded, the provisions in question were "general statements offederal policy, not newly created legal duties." 451 U.S. at 23,67 L.Ed.2d at 711.
The next three decisions in this line of cases all addressed the status of statutory mandates

-5-

797175/1073032.6·HCOl_DSlA

.: . .. ~~"

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.

clothed in the word l1reasonable.117 In Wright~. Roanoke Redevelop-m~nt a~dH~u;i~g.A~thorityJ 479

U.S" 418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987), the Court again focused on the statutory context

and concluded that a ceiling on utility charges to residents of federally supported housing projects

did create such rights because it specifically defined how the charges were to be calculated. In

Wilder v. Virginia Hospital Ass'n, 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990), the

requirement of "reasonable and adequate" payment rates for Medicaid providers (see discussion of

42 U.S.C. §1396a(a)(30) infra.) was held to give rise to enforceable rights because the statute and

implementing regulations set forth in detail the factors to be considered and the methods for

.

. _. . . .

calculation of rates,

The plaintiff in Suter v. Artist M 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992),

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sought to enforce a provision ofthe federal Adoption Act requiring a state to make reasonable efforts

to prevent a child from being removed from his home and to reunite the family when that could not

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be prevented. Because there was no further guidance on how "reasonable efforts" were to be

measured, and because the meaning of the requirement necessarily varied with the individual case,

the court concluded, the manner in which this provision was to be enforced was left up to the individual State to work out. Suter, 503 U.S. at 360,118 L.Ed.2d at14. The enforcel11entmechanis~" '.' ...

allowed for reduction or elimination of payments by the Secretary of Health & Human Services

where there was a substantial failure to comply with this provision. The administrative regulations

were general in nature, and did not provide notice to the State that anything other than submission

of a Plan complying with the regulations was a condition of federal funding. Thus, the Court

concluded, the provision imposed only a generalized duty on the State, to be enforced by the

Secretary, rather than a legal right enforceable by private individuals, 503 U.S. at 360-363, 118

L.Ed.2d at 14-16.

Thus, in reviewing the measures on which Plaintiffs rely in seeking to make out a judicially

enforceable obligation to provide an ICFIMRplacement in close geographical proximity to the

recipient's family (or of a particular size), the court should consider the following factors to

7The Court noted in Suter v. Artist M, 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992) that the use of the word "reasonable" was not decisive, 503 U.s. at 357,118 L.Ed.2d at 12.

-6-

79717511073032.6·HCOl_DSIA

distinguish privately enforceable enactments from hortatory declarations and administrative
directives: (1) whether or not the condition would illlP()se.anind~tenninate burden .' on the State;

(2) whether the mandate announces directly what is required or is said to

impose an obligation on the basis of a syllogism;

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(3) whether the mandate includes particulars about the requirement or is general in natllfe;

(4) whethe~ the mandate calls for a different analysis for each individual
case or can apply to discrete and defined classes of situations;

(5) whether the enforcement mechanism applicable to the provision suggests that private actions are contemplated; and

(6) whether or not the mandate specifically states that federal funding is contingent on what is demanded...

Not one of these factors weighs in favor of recognizing a federally enforceable right with respect to . .

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either the active treatment or the statewideness provisions on which Plaintiffs rely to create an

obligation to provide services in close geographic proximity to the family home.

In Harris v. James, 127 F.3d 993 (11 th Cir. 1997), the plaintiffs sought to enforce a

transportation requirement that did not appear explicitly in the Medicaid Act, but only in a federal

regulation. 127 F.3d at 1005. The Court addressed 42 U.S.C. §1396a(a)(19), which requires that

a State plan for medical assistance must:

Provide such safeguards as may be necessary to assure that eligibility for care and services under the plan will be determined and such care and services will be provided in a manner consistent with simplicity of administration in the best interest of the recipients.

It held that Section1396a(a)(19) does not provide a right enforceable under 42 U.S.C. §1983. In
concluding that §1396a(a)(19) was "insufficiently specific to confer any particular right to the
. . ~ ~.'.
plaintiffs," the Court in Harris also noted in Footnote 24 of its opinion:
In addition to our concern that the provision is insufficiently specific to confer enforceable rights on the plaintiff, we also suspect that such

-7-

19717SI1073032.6·HCOI_DS1A

an obligation is "too vague and amorphous" to be capable ofjudicial

, I

enforcement. To ask a court to determine whether a state practice

I'

complies with the broad, and sometimes competing, goals of

1

"simplicity ofadministration" and Itthe best interests ofthe recipientstt

would likely strain judicial competence.

Accord, Bumpus v. Clark, 681 F.2d 679,683 (9th Cir. 1982) opinion withdrawn as moot, 702 F.2d

826 (9th Cir. 1983); Stewart v. Bernstein, 769 F.2d 1088, 1093 (5th Cir. 1985); Cook v. Hariston,

No. 90-3437,948 F.2d 1288 (6th Cir. November 26, 1991) (unpublished decision) ("[T]he district

court did not error in finding that the [provisions] in question were not sufficiently specific and

definite to permit enforcement through §1983."); Graus v. Kaladjian, 2 F. Supp.2d 540, 543

(S.D.N. Y. 1998) ("this Court, however, is in agreement with those courts that have concluded that

this amorphous provision [42 U.S.C. §1396a(a)(19)] does not itself create a federal right privately

enforceable under §1983").

These decisions establish that a court's notion of what in the "best interests" of a particular

person with a developmentally disability seeking ICFIDD placement is not enough to create a legal

right.
,.
Sovereign Immunity Waiver Must Be By "Unmistakably Clear Language. It

This standard applies with even greater force in this case, where in the absence ofa clear and
specific mandate, this action may not be brought in this coUI"tb; ~i~e'~fthe Eleve~th ~~~~~~t

and the doctrine of sovereign immunity. Congress may require a waiver of sovereign immunity as

a condition of the State's participation in a federal program; but it must express its intent to impose

such a condition on the State unambiguously; Marie 0. v. Edgar, 131 F.2d 610; 615 (7thCir. 1997).

The Court in MCI Corp. v. Illinois Commerce Commission, 168 F.3d 315, 321 (7th Cir. 1999)

acknowledged that a waiver may he implied in a Spending Clause case from acceptance of the

federal assistance, hut that implied consent can only be found when Congress has spoken in

"unmistakably clear language.II Id, citing Welch v. Texas Dep 't o/Highways & Public Transp., 483

U.S. 468, 477-478; 107 S.Ct. 2941; 97 L.Ed.2d 389 (1987). The only circumstance that could give

rise to an implied waiver ofsovereign immunity here would be the presence ofan obligation creating

rights enforceable under 42 U.S.C. §1983. Thus, for Plaintiffs to be able to proceed with this action,

the statutory language (or, ifthe court concludes that regulations can be considered. the regulatory

79717SII073032.6·HCOI_DSIA

language) must not only be nclear and unambiguous" to come within §1983, the obligation must be

created by "unmistakably clear language. II

This is the only path remaining to Plaintiffs. to avoid dismissal of the action based on

sovereign immunity, as recent case law holds that the integration claim under either the Americans
.-
With Disabilities Act (which has already been dismissed) and the Rehabilitation Act (which has not)

are barred by the analysis of the Supreme Court's recent decision in Board of Trustees of the

University ·of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). In

."

,

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Reickenbacker v. Foster, 2001 WL 1540102 (5th Cir. Dec. 3, 2001), the Fifth Circuit reached this

conclusio~. Accord, Garciav. S.U.NY He~ithS~ienc~;C~~ter~j.l3;ooklyn, 2001 WL 1159970(2d

Cir. Sept. 25, 2001)(recognizing exception for actions only where a showing of discriminatory

animus on the basis of a disability could be made out).

Necessity of Showing Non-Compliant StaiePlan Under Section 1983. The court has

already recognized that under Mallettv. Wisconsin Div. ofVocational Rehabilitation, 130 F.3d 1245

(7th Cir. 1997), Section 1983 limits the scope of what may be asserted in a claim seeking to enforce

the Medicaid Act. Specifically, the claim cannot be one in which an individual complains of not

receiving services that should be provided. The claim must be that the Illinois Medicaid Plan does

. !10t c?illJ?ly with federal requirements, and that as a resu1t~. th~ ~lain~~!fhas not received the benefits

to which she is entitled. Memorandum Opinion and Order of May 1,2001, at 17-18. An isolated

violation or a failure to follow the Plan itself is not sufficient to make out a claim.

Plaintiffs do not point to any specific provision of the Plan. Rather, they seek to establish

that it is a defacto provision ofthe Plan that there will not be sufficient ICFIMR vacancies to enable

the putative Plaintiff class members to receive services within some unidentified geographic

proximity to their family homes as they claim is required. Assuming arguendo that a de facto theory

is permitted, it must be shown that (1) the State has intentionally created the alleged lack of

availability, and (2) that the lack of availability means that a majority of individuals are unable to

obtain services to which they are entitled. Defendants also contend that the reason that this matter

is not addressed in the Illinois Medicaid Plan is because the Act does not require or even contemplate

that a State Plan will address the subject ofgeographical proximity ofICFIMR facilities to Medicaid

recipients seeking services.

-9-

797175/!07JOJ2.6-HCOl_DSIA

Applicable Provisions of the Medicaid Act

Definition of Medical Assistance

Required "Medical Assistance" Means Payment For ICFIMR Services. The Medicaid Act
requires that States provide "medical ~~istanc~," 42 U.S.C. §1396a(a). Medi9~ ~sis~ce "means··

payment ofpart or all ofthe cost ofthe following care and services...for individuals...whose.income 'c

".

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and resources are insufficient t() llleet all of such c()st....11

Provisions on ICFIMRs

Medicaid Act Defines ICFIMR's As Providing Active Treatment. An llintermediate care

facility for the mentally retarde4" "meansan}nstitution...for the mentally retarded or persons with

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related conditions if...the primary purpose of such institution...is to provide health or rehabilitative

services for mentally retarded individuals and the in~titution llleets such standards as may be

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prescribed by the SecretaryIt and "thementally retarded individual with respect to whom a request

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for payment is made under a plan approved under this subchapter is receiving active tr~a:tment ~de,r .

such a program..." 42 U.S.C. §1396d(d)

Medicaid Act Requires ICFIMR's To Develop Written Plan oj Care. The Medicaid Act

further requires that IIwith respect to services in an intermediate care facility for the mentally retarded

(where the State plan includes medical assistance for such services) the ICFIMR provide, with

respect to each patient receiving such services, for a written plan of care, prior to admission to or

authorization for benefits in such facility...and for a regular program of independent professional

review (including medical review) which shall periodically review his need for such services" 42

U.S.C. §1396a(a)(31).

MedicaidAct Authorizes Federal Certification ojICFIMR 's. The Medicaid Act provides for

certification ofICFIMR facilities by the Secretary ofthe Department of Health & Human Services,

(Subpart C of 42 CFR 442.100 et seq.) and for decertification where standards are not maintained,

42 U.S.C. §1396i(b)(l).

Statewideness

Medicaid Act Mandates a Plan In Effect in All Political Subdivisions. The "statewideness"

requirement of the Medicaid Act simply states that the State Plan must "provide that it shall be in

-10-

79717511073032.6-HCOl_DS lA

Medicaid Act Requires Availability of Services Comparable to Private Market. The Medicaid Act provides that aState Plan "must provide fo~ sll~h ll1ethods and proced~es r~lating t() the utilization of, and the payment for, care and services unde~ the plan...as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area..." 42 U.S.C. §1396a(a)(30). Reasonable Promptness
"Medical Assistance II Must Be Provided With Reasonable Promptness. The reasonable promptness requirement of the Medicaid Act states only that the State Plan must "provide that all individuals wishing to make application for medical assistance under the plan shall have the opportunity to do so and that such assistance shall be provided with reasonable promptness to all eligible individuals." 42 U.S.c. §1396a(a)(8). Community Based Services
Medicaid Act Provides That "Community-Based Services" Are Waiver Services. Community-based services are by definition waiver services like elLA, unlike lCFIMR services: liThe Secretary may by waiver provide that a State plan approved under this subchapter include as "medical assistanceU under such plan payment for pact or all ofthe cost ofhome or community-based services...with respect to whom there has been a determination that but for provision ofsuch services the individuals would require a level of care provided in a[n] ...intermediate care facility for the

-11-

79717.5/1073032.6-HCOl_DSl A

mentally retarded the cost of which could be reimbursed under the State plan.II 42 USC

§1396n(c)(1).

Medicaid Act Limits Availability ofHome and Community-Based Services. It is undisputed

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that the Medicaid Act provides that a waiver program may limit the number ofpersons to be served

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under the waiver. It further provides that waiver programs provide that rtsuch individuals who are

determined to be likely to require the level of care provided in a[n]'..intermediate care facility for

.

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the mentally retarded are informed of the feasible alternatives, ifavailable under the waiver, at the

choice of such individuals... II 42 U.S.C. §1396n(c)(2)(C)(emphasis added).

Applicable Regulations

Amount, Duration andScope Regulation. The regulations provide, on the one hand, that the

service the State Plan provide~shal1 pe "sufficient in amolUlt, duration and scope to reasonably

achieve its purpose.ll 42 C.F.R. §440.230(b). The regulation also provides that the State "may place

.

. .

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appropriate limits on a service based on such criteria as medical necessity or on utilization control

procedures.l1 42 C.F.R. §440.230(d)

Active Treatment Plan Regulation. The Medicaid Act provisions pertaining to the services

to be provided by ICFIMR's are enforced by regulations adopted pursuant to the Secretary's

authority to prescribe standards for such facilities, 42 C.F.R. § 483.400. It is in this set of

regulations-addressed not to the States but to ICFIMR's that wish to be eligible for Medicare

funding-where the so-called "active treatment" regulation appears. This regulation is referred to

under Subpart C as a "condition for participation," meaning that ifit is not complied with, the facility

will lose certification for Medicare funding. The standard is set forth in 42 C.F.R. §483.440(a):

(a) Standard: Active Treatment. (1) Each cl.ieIltlp,l!~t~eceive.~ continUOlls active treatment program, which includes aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services described in this subpart, that is directed toward-

(i) The acquisition of the behaviors necessary for the client to function with as much self determination and independence as possible; and

-12-

797 I7SIl073032.6-HCO I_DS IA
.- .' .,'.:

(ii) The prevention or deceleration of regression or loss of current optimal functional status.
(2) Active treatment does not include services to maintain generally independent clients who are able to function with little supervision or in the absence of a continuous treatment program.
State wideness. The only provision of the regulations that amplifies the "statewideness" requirement is the provision that a State Plan must provide that it "will be in operation statewide through a system of local offices, under equitable standards for assistance and administration that are mandatory throughout the State." 42 C.F.R. §431.50(b).
Reasonable Promptness. There are two regulations dealing with reasonable promptness. First is the requirement for "time standards for determining eligibility" of "ninety days for applicants who apply for Medicaid on the basis of disability." 42 C.F.R. §435.912(a)(1). The regulation requires that the standard be met 11except in unusual circumstances," which include, "for example, delays attributable to the applicant or an examining physician." 42 C.F.R. § 435.912(c)(1). The time period in question runs I1from the date of application to the date the agency mails a notice of determination." 42 C.F.R. §435.9l2(b).
The second regulation is the only one addressing the requirement for actually providing medical assistance: "The agency must- (a) Furnish Medicaid promptly to recipients without any delay caused by the agency's administrative procedures. 11 42 C.F.R. § 435.930. Thus, the ninety-day time limitation applies only to eligibility determinations, and not to actually furnishing Medicaid benefits.
Comparability Regulation. The regulations provide that the services available to the categorically needy be IInot less in amount, duration and scope than those services available to a medically needy recipient. 11 42 C.F.R. §440.240(a) It further provides that the services available to all categorically needy recipients be comparable to one another, and that services available to recipients in each medically needy group by comparable to one another. 42 C.F.R. §440.240(b).

-13-

797175/1073032.6-HCOI_DSIA

ARGUMENT

I. Necessity of Statutory ObligatiollAs Distineuished From Administrative Regulations.

For Illinois to be subject to federal mandates arising from the Medicaid Act, the requirement

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should be plain from the statute itself, since regulations are subject to constant revision and new

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obligations may be added without Congressional approval. Administrative agencies may be

authorized by Congress to issue at least two types of regulations. Interpretive regulations, which

purport to elaborate on and clarify ambiguities in federal statutes, are typically regarded as

persuasive by courts in construing federal statutes unless they do not reflect a reasonable

interpretation of the statutory provision they are construing. Substantive regulations, by contrast,

represent a delegation by Congress of authority to legislate on a specific subject, guided by a policy

directive contained in a statute.

The court in Harris v. James, 127 F.3d 993, 1006-1007 (lIth Cir. 1997) noted that four

justices of the Supreme Court are already on record that "federal rightsll enforceable through 42

U.S.C. §1983 cannot derive from valid regulations of either type issued by anadrninistrative

agency, citing Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 437-438,

107 S.Ct. 766, 93 L.Ed.2d 781 (1987)(O'Connor, J.)(dissenting opinion). Concluding that the

position expressed in the dissent in that case was not rejected by the majority, the Eleventh Circuit

held that while an interpretive regulation might assist in construction of a statute, the existence of

a federal right enforceable under §1983 must be determined without consulting anything other than

what is contained in the provision adopted by Congress, Harris, 127 F.3d at 1006-1009. See also

Garcia v. Brownsville Housing, 105 F.3d 1053, 1057 (5th Cir. 1997); Smith v. Kirk, 821 F.2d 980,

984 (4th Cir. 1987).

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79717511 073032.6·HCO 1_DS JA

II. The Active Treatment Plan Regulation Does Not Contain A Clear, Specific Mandate Requiring ICFIMR· PIacenlent 'Yi~hin A Reasolla~lePr~~i~ity. ~f Family

Plaintiffs have cited no case law to date supporting ti:leir contention tl;1atthe (ictivetreatrnent

plan regulation requires that a state ensure that there are ICFIMR placem~ntsw.i:thin some

geographic proximity of the recipient's family residence. Neither the statute nor the regulations

mention any such right, directly or i~plicitly: Each is co~cemed with what happens within.the walls.

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of the ICFIMR facility: treatment focused on skills development and maintenance.

The absurdity of finding the requirement Plaintiffs seek to impose in this provision is that

it is not even directed towards the State and the State Plan. Rather, it is a standard that must be met

by an ICFIMR to be eligible to receive Medicaid funding. The statute mandates that treatment in

an ICFIMR take place under a writtenplan ofcare, and it specifically authorizes the Secretary ofthe

Department ofHealth and Human Services to establish standards for certification ofICFiMR's. The

active treatment regulation is simply a condition for participation in the Medicaid program. It

addresses what happens post-placement, not where an individual is to be placed. So the first point

is that the regulation requiring an active treatment plan does not regulate where ICFIMR facilities

must be located, or what the State, as opposed to an ICFIMR provider, is required to do.

The regulations do speak. to the role of parents and family in the ICFIMR. They eSUi..b.Jish..

a standard for providers to comply with to promote communication between parents, legal guardians

and residents in the ICFIMR. They provide that the facility must IIpromote participation ofparents

and legal guardians in the process of providing active treatment unless their participation is

unobtainable or inappropriate." 42 C.F.R. § 483.420(c)(l) Facilities are required to IIpromote visits

by individuals with a relationship to the client (such as family, close friends, legal guardians and

advocates) at any reasonable hour, without prior notice...11 42 C.F.R. § 483.420(c)(3) They are to

"promote frequent and informal leaves from the facility for visits, trips or vacations..." 42 C.F.R. §

483.420(c)(5) These regulations are also conditions for ICFIMRparticipation in Medicaid entitled

"Standard: Communication with clients, parents and guardians." 42 C.F.R. § 483.420(c).

These provisions represent all that the Medicaid regulations have to say about the

participation ofparents and family members in the treatment ofICFIMR residents. While it may be

-15-

79117S/1073032.6-HC01_DS1A

true that geographical proximity of the facility to the family home might in some, or even many,

instances help ICFfMRs promote more frequent family involvement, the regulations do not say what

Plaintiffs would like them to say: that the State is required to ensure that Medicaid recipients are

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placed so that family members are within a certain distance or travel time in order that their

relationship with the Medicaid recipient is made reasonably convenient. So the second point is that

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frequent communication, but do not mandate geographical proximity. It is unreasonable to infer any

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geographical proximity requirement from the regulations that Plaintiffs rely upon.

The third point is the most basic: Plaintiffs' argument seeks to tease out of plain language

something that is not there. Whatever merit there might be in other cases to judicial policymaking

or simply liberal construction of a statute, it is improper in this case. The relief requested by

. Plaintiffs mllst be supported by a requirement that is crystal clear. A requireIll.ent that is nowhere

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in the statute, and that must be teased out of a regulation, cannot satisfy Plaintiffs' burden.

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.. As the court observed in J3uJnpus v. Clark, 681 F.2d 679, 684 ((9th Cir. 1982), "The

Medicaid program is not intended to meet all the medical needs of recipients. Rather, the goal is to

provide medical assistance' as far as practicable under the conditions in [each] State.'" In that case,

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the court noted with chagrin that "Plaintiffs are infirm, elderly, and variously afflicted with heart

disease, stroke disorders, chronic brain syndrome and other disabilities. They allege that the closure

of Edgefield Manor, and the resulting involuntary transfers and destruction of interpersonal

relationships, will cause irreparable emotional and physical injuries.... One expert has testified that

'a transfer ofthe patients at Edgefield [nursing home for the elderly] will quite probably result in the

deaths of a substantial number of those patients. "1 681 F.2d at 683. Nevertheless, the court

concluded that neither the regulation creating the right to a hearing before termination of medical

services nor the regulation mandating" such safeguards as may be necessary to assure that ...services

will be provided in...the best interests of the recipients" meant that the facility could not be closed

or that a hearing was required before it could be closed. 681 F.2d at 683.

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797175/1073032.6-HCO 1_DS1A

III. The Statewideness Provision of the Medicaid Act, And Statewideness Regulations, Do Not Contain A Clear, Specific Mandate ReguiringICFIMRPlacement Within A Reasonable Proximity ofFamily
The provision of the Medicaid Act calling for statewide application of the State Plan contains no hint that the State must maintain, as Plaintiffs contend, an equal geographical distribution ofvacancies8 across the State, much less a requirement that the number of vacancies be such that any Medicaid recipient may readily be placed at a location within reasonable geographical proximity to the family9.
It would require clairvoyance to find such a requirement in the simple statutory command directing that the State Plan "shall be in effect in all political subdivisions of the State." Plaintiffs articulate no clear standard ofwhat the State is required to do. IfIllinois was required to ensure that facilities are constructed so as to provide adequate ICFIMR vacancies near the families of the recipients, the statute would have to prescribe some specific method by which State administrators could determine whether the system of private and public providers was or was not in compliance with this unstated requirement. Congress cannot be presumed to leave the States with a standard that varies according to the daily fluctuations in supply and demand for ICFIMR placements. Ifthis had been something the Medicaid Act intended to ensure, Congress would have required the State to maintain some kind of geographic~_ distribution of beds within a particular range; provided for a safe harbor against loss of compliance due to demographic shifts; authorized rate adjustments on a geographic basis to create incentive for development in under-served areas; and so on.
The requirements would apply beyond ICFIMR's. All residents of all States would have to have equal access to all hospital, nursing home, physician and other services. Rural hospitals would

8Plaintiffs' claim is more than that there must be an equal distribution ofICFJMR facilities or beds. It would require that the State constantly ensure that vacancies are available; even where the facilities were perfectly distributed in proportion to the eligible population, the State could be out of compliance under Plaintiffs' theory if vacancies were not also proportional.

9The claim asserted by Plaintiffs here is also that there must be enough vacancies so that the geographical proximity requirement could be satisfied. As such, it goes beyond the statewideness requirement and would also mandate that the State ensure that facilities exist or are built to satisfy each Medicaid recipient's needs. This stands in stark contrast to the language of the statute, which with one exception not applicable here (see below) requires the State only to provide "medical assistance," which is defined as "money."

-17-

79717SIl073032_6·HCO I_DS IA

have to be more nwnerous to assure residents in rural areas would have the same access to acute care

services as residents of Chicago and its metropolitan area. As a last resort, the Act would require

the State to build facilities and employ physicians to assure uniform availability of he~t1th. care

services throughout the State. There is nothing at all in the Medicaid Act requiring States to ensure

that providers be available to provide the services the program finances other than the provision on

rate levels addressed in the next section ofthis memorandwn.

The Medicaid regulations require only that the Plan be "in operation statewide through a

system of local offices, under equitable standards for assistance and administration that are

mandatory throughout the State." Local "offices" plainly refers to administration of the program,

and in this case there is no dispute that the PAS Agencies are located throughout the State, covering

each pol~ti,c~l.s.~bdivis.i<:ln.ill:. th~~~te... Something soba~;i~ as \Vh~re providers must be located

';'" .~,-_ ';.: "'~' .. ':' .,....,-, 'r~- ,',,,,' :-~ '" ',' "' .. - ~""""::.::. :'~:""-~~";":-"';';l'i'.. ' ," .. '.... -

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would not be left to the imagination if Congress intended to cover it. Moreover, there is no question

that ICFIMR's are located throughout the State. If the requirement intended was "proportional

geographical distribution of providers," the drafters of the statute and regulations would not have

expressed so important an obligation in such opaque language.

The court has posed the hypothetical question of whe~er it would b~ permissible if all

ICF/MR's were located south of Springfield. The answer to this question is that Congress did not

consider this to be a problem likely enough to arise that it made sense to establish any standard for

the State. It relied upon the marketplace operation to address this, as is described in the next section.

The Medicaid Act provision requiring the plan to "be in effect in all political subdivisions

ofthe State and where administered by them, be mandatory upon them" means that the plan must

apply in all political subdivisions, that is, that the Plan covers the same services without regard to

geographical area within the state where the resident lives. The provision addresses the relationship

between the plan and local governments and by its terms provides: (1) that the plan be in effect in

all political subdivisions and (2) that if the local government administers the plan, the plan is

mandatory on the local government. The only thing that is clear from this sentence is that no one

may be found ineligible for Medicaid benefits based on where slhe lives within the state. The

provision ensures that no resident ()f any political subdivision may be carved out ofthe coverage of

the Medicaid plan; either directly by a place of residence limitation on eligibility, or indirectly by

-18-

797175/1073032.6-HCOI_DS2A

delegating administration to a local agency that is free to ignore the plan. Placing this provision at

the very beginning of the statute suggests a focus on administration and structure, rather than a

standard describing the benefit being provided.

This interpretation is supported by the Supreme Court's decision in Suter v. Artist M, 503

U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992). In Suter, the plaintiffs argued that they were

entitled to enforce any provision ofthe Adoption Act in court because of an identical provision in

that statute: 'This section states that the state plan shall 'provide that theplan shall be in effect in

... ', :-"; ': . f : ",' :' .~ ':~'~;:"~ :-.~',.-_,.~~~.;"" .i·:i,:,~:~.. (':;"-'!~.:=~; .,~:: '.~: ."~ "(''::,: '~"_':" ~'~~;~:·~r-~,F~~;·;';'-·>.~~:'-~>:·'C"."':::"-'~''\:'-'6'.~~,;:c ·~~}'~~""':~:'~;:~~::·:.-->f:::::,:u7',~;'~-:·~'f:!·~Y.~:~~;:~:;:~~f;~<-" ..i~,"~,;,~t~.,·)r:·.~~.':.~~~ '·7"!'~·~':-..,:-::-:''''. 'r~~ :-~ ',~ ~'~ ~

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all political subdivisions of the State and, if administered by them, be mandatory upon them.>II

Rejectin~ this construction.Jh~:Col111: concluded: "we think that .'in effect' is. directed to the

requirement that the plan apply to all political subdivisions of the State, and is not intended to

otherwise modify the word 'plan.'u 503 U.S. at 359, 118 L.Ed.2d at 13.

By describing the statewideness obligation as requiring that "the plan apply to all political

subdivisions ofthe State,'I the Court specifically accepted the construction Defendants advocate here.

By stating that the words "in effece do not otherwise modify the word "plan,r' the Court rejected any

additional obligation-and that necessarily includes any implied obligation to provide that services

be available on a uniform basis.

The Eleventh Circuit could not have been more plain in endorsing this construction in Harris .
":.;,:: ...... "/.-.' . ",,, .. '. . ,.:'~'" .~;-:_·-.~_.-.-f· ..-·_~<··:·,·. "> .• :~.- :; :·.>·:·~:,:·.,:j.:d;:>·..-··,:··:-,··~.:>·.··. ': .' .. ,: ·-, ...··-:.,.::>F;·-~;:~::.-.:-::'·.~ ...:;·~~, ~',~\ ... :"':':~:;:"'.'.~.\,;.';~:: ~:~.:~,:,:···'~"':i>"'.~ .. ::- ~::..... ~,: ..
v. James, 127 F.3d 993 (lIth Cir. 1997). The Harris plaintiffs ~ontended that unless transportation

was provided to and from providers, the plan could not truly be lIin effectlt in all areas of the State.

This argument was emphatically rejected: liThe Court's conclusion that the 'shall be in effect'

provision of the Adoption Act requires only that the plan apply to all political subdivisions would

seem to foreclose arguments (such as the plaintiffs') that attempt to use the 'shall be in effect'

provisions ofother State-plan legislation as a bootstrap for enforcing requirements imposed on such

plans by other statutory provisions.II 127 F.3d at 1011. There is no principled difference between

the contention that a plan is not truly "in effectlt because providers are so situated that Medicaid

recipients must travel great distances to be placed in ICFIMR's, and the argument made in Harris

claiming that without a right to transportation, benefits are not "in effect" throughout the State.

The Second Circuit indicated acceptance of this construction as well, plainly articulating it

as the "better analogy," without definitively resolving the issue, in Concourse Rehabilitation &

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797175/1 073032.6.HCO '_DS2A

Nursing Center, Inc. v. Wing, 150 F.3d 185, 189 (2d Cir. 1998). The court first articulated the

plaintiffs' view that the statewideness provision contained a substantive component (that the State

Plan provide that it will be It i~ ,ef~e~tlt) and a procedural component (that the plan is in fact ttin effecttl

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and Itmandatory if administered by a political subdivision of the Statett), and was therefore

enforceable under §1983. But after reviewing what the court stated in Suter, the court said, It...a

better analogy to Wilder is that the right conferred by Section 1396a(a)(1) has a procedural

component-that the plan must provide that it applies statewide-and a substantive component-that

the plan is in fact applied statewide even ifadlninistered by a political subdivision. tI 150 F 3d at 189.

The remaining decisions pertaining to the statewideness requirement are District Court

decisions that either predate Suter lO or do not address what Suter has to say about the construction

of Itin effect in all political subdivisions ofthe State,tI except for Sobkyv. Smoley, 855 F.Supp. 1123

(E.D. Cal. 1994). Sobky found a statewideness violation where California allowed counties to opt

out of covering methadone maintenance services, and all but 12 counties did so. Its discussion of

Suter distinguished the Court's statements about the ttshall be in effect" provision by pointing out that in Suter, the Plaintiffwas attempting to use the Itin effectlt language to support enforcement of

a different provision ofthe statute, 855 F.Supp. at 1134 n. 29. But the court ignored the other aspect

of what Suter said about the provision, which was that 1!in effecttl did not modify the word "plantl

other than to express that the plan was to apply to all political subdivisions. Perhaps that is because

in that case, all but 12 counties ofthe State did not subscribe to the methadone maintenance program

in issue there, which meant that the Suter standard was indeed satisfied.

The Sobky court did go on to say that under the statewideness provision, services were to be

provided throughout the State. It relied on a clarifying comment in the statewideness regulation

allowing providers to provide services to limited geographical areas, 855 F.Supp. at 1134-1135. To

JOe.g., Smith v. Vowell, 379 F.Supp. 139 (W.D. Tex. 1974); Clarkv. Kinzer, 758 F.Supp. 572 (E.D. Cal. 1990); Morgan v. Cohen, 665 F.Supp. 1164 (E.D. Pa. 1987); Turner v. Heckler, 573 F.Supp. 867, 873
(S.D. Ohio 1983). These decisions cite and rely on one another, in most instances accepting statewideness as a basis for the decision along with one or more other provsions. Each traces its conclusions back to Smith, in which the District Judge described as "preposterous" the proposition that there could be merely rhetorical
conditions within the Medicaid scheme, a proposition that has since become law. Smith articulated and relied on the same construction of "in effect" that was specifically rejected in Suter.

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797175/ 1073032.6·HCO ,_DS2A

the extent that the decision asserts this negative pregnant analysis proves that State Medicaid obligations include provision ofservices, as opposed to funding, it is simply wrong. First, the cited exception in the regulation does not necessarily imply that ensuring services are available statewide is part of the regulation's command. For instance, if a State Plan designates one or more providers for each specific geographical area and states that a provider who renders services to a recipient outside its area will not be reimbursed, this part ofthe regulation ensures that the plan will not found to lack ofstatewideness, so long as there is at least one provider in each area. Second, the regulation says only how the regulation should not be construed, and this does not imply that another interpretation unsupported by the principal section ofthe regulation is correct. At a minimum, the obligation cannot be clear ifthe regulation does not affinnatively state that the other interpretation is correct.
To the extent that the decision is based on the fact that each county had its own local plan, and that the majority ofthose plans omitted an entitlement service, the decision is correct. Indeed, that is precisely what the Second Circuit concluded the case stood for in Concourse Rehabilitation & Nursing Center, Inc., 150 F.3d at 189. In this case, the State Plan covering persons with mental retardation and developmental disabilities is operated through local PAS Agents whose coverage is not limited, and services are provided in facilities in virtually every county of the Statell. To the extent Sobky goes beyond this, the opinions of the Supreme Court in Suter, ofthe Eleventh Circuit in Harris and of the Second Circuit in Concourse Rehabilitation & Nursing Center, Inc. should govern instead.

llIn addition to Smith v. Vowell, which is addressed in the preceding footnote, the court identified Carr v. Wilson, 203 F.R.D. 66 (D. Conn. March 30, 2001)(class certification ruling). Oneofthe several related claims asserted was that the failure to pay dental provider market rates resulted in a violation of42 U.S.c. §1396a(a)(l) and 42 C.F.R. §431.50(b)(l), "which require that Medicaid covered dental services be available to Medicaid recipients throughout Connecticut/' 203 F.R.D. at 69. The court in Carr concluded that its determination was to be made "solely on the allegations of the complaint,"203 F.R.D. at 72 and that it "may not consider the validity ofthe plaintiffs claims." 203 F.R.D. at 69. The only argument concerning the standing of the individual plaintiffs was a mootness argument. 203 F.R.D. at 76. Because theCarr decision disclaimed any consideration ofwhether the claim was actionable, it can tell us nothing at all about statewideness except that the attorney representing plaintiffs in that case considered the claim to be worth including along with half a dozen others.

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797175/1073032.6·HCOI_DS2A

' : : , " ' .

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IV. The Medicaid Act's Only Mandate To States Concerning Providing Services, As Opposed To Financing, Is The Requirement To Provide Market Rates of Payment
. - ", ':' ~.~. ': .; '. '

If Congress had intended t<? req~ire Statesto pr()".i~e services, as opposed to financing, there

would be a collection of req'Uirements in th~statutedescribing what States are required to do, to

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ensure that services be available, and directing that they provide the services themselves if the

private market fails to do so. No such provisions are in the statute. Congress rejected that approach

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in favor 'of reliance on private market mechanisms. A statute whose' principal purposes and

mandates have to do with financing ofcovered services can be expected to rely on a fj~aIWial deyice

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to en,sure that th?se services, ~~,~vailabl~. The Medi.caid Act proyides tha~ paymeljtsJo~ 1vfedipai4

services must be "sufficient to enlist enough providers so thatcare and services areavailable under

the plan at least to the extent that such care and services are available to the general population in

the geographic area," 42 U.S.C. §1396a(a)(30).12

It was within the province of Congress to determine that the private market is superior to

state control over ICFIMR and other providers as a mechanism for ensuring that there are adequate

providers. Providers ofICFIMR services have sound reasons for not developing new facilities, and

to presume that the market has operated in an irrational fashion would be folly. Plaintiffs may find

fault with how the private marketplace has distributed the facilities and vacancies, but that is a

quarrel with the statute and cannot form the basis for relief in this court.

V. The "Amount, Duration and Scope" Requirement Is Not A Clear, Specific Mandate Requiring ICFIMR Placement Within An Unspecified Close Proximity to Family

The court has mentioned the Itmedical necessity" standard in passing~ and Defendants have reminded the court of Alexander v. Choate, 469 U.S. 287~ 105 S. Ct.. 712 (1984). Although

12As noted in HCMF Corp. v. Gilmore, 26 F.Supp. 873, 876 (W.D. Va. 1998), this portion of the statute has been revised since it was held to be enforceable by private suit in Wi/der. The provision was not entirely repealed; the specific federal requirements for calculating rates were turned over to the States, which had the effect of establishing sover~ign immunity over disputes by providers against States relating to the rates, 26 F.Supp.2d at 878-880.. ,,"

-22-

79717511073032.6·HCOI_DS2A

Plaintiffs have neither cited nor made reference to the 1tamount, duration and scope" regulation, it requires attention here.
In Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), the Court confronted a challenge based on handicap discrimination to Tennessee's decision to limit Medicaid payment for hospital stays to fourteen days. Plaintiffs presented evidence that persons with handicaps have longer hospital stays, and contended that the Plan could not lawfully impose such a limitation. In rejecting both a claim of discrimination through Itdenial of meaningful accesslt and a disparate impact argument that saving money through shorter hospital stays necessarily imposes disadvantages on persons with handicapped, the Court looked to the basic structure and purpose of the Act:
...Medicaid programs do not guarantee that each recipient will receive that level of health care precisely tailored to his or her particular needs. Instead, the benefit pr()vi~ed, through Medicaid is a particlllarpackage ofh~alth care services, such as 14 days ofinpatient coverage. That package ofservices has the general aim of assuring that individuals will receive necessary medical care, but the benefit provided remains the individual services offered-not 'adequate health care.'
...The Act gives the States substantial discretion to choose the proper mix of amount, scope and duration limitations on coverage, as long as care and services are provided in 'the best interests of the recipients.'
Alexander v. Choate, 469 U.S. at 303, 83 L.Ed.2d at 673.
The package of Medicaid funded free ICFIMR services made available to Illinois residents is necessarily limited to those facilities that the private marketplace has established. The Plan serves thousands of persons, and according to Plaintiffs' calculations, fully one-third of them are in the nine-county northern Illinois area. While new entrants to the system are confronted with more vacancies at downstate facilities than in the nine-county area, this does not mean that the package ofICFIMR services represent a legally inadequate benefit.
In Kingv. Sullivan, 776 F.Supp. 645 (D. R.1. 1991), a case with significant similarities to this one, the plaintiffs claimed that "the State did not expend sufficient funds on community residential

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797175/1073032.6·HCOl_DS2A

services. Plaintiffs in that case had been offered the opportunity for placement in a large state-

operated ICFIMR, but claimed the right to placement in "community-based," group home ICFIMR

facilities. The court concluded that it was proper for the State to limit access to such settings to

persons in "emergency" situations,just as Illinois limits CILA group home placement to community

emergencies and other priority populations. Rejecting this claim, the court held that Medicaid only

mandates that "any medical assistance service provided be adequate to reasonably achieve the

purposes ofthe medical assistance service that the state offers in its State Plan.1i King, 776 F.Supp.

. .

.

at 652. The court went on to point out that "When a State obligates itself to providing Medicaid

services...the state need not meet its obligations perfectly. A service is sufficient in amount, duration

and scope ifit adequately meets the needs ofmost indi"iduals eligible for Medicaid assistance to pay

for that service. [citations omitted]" Reasonable promptness did not require provision of one

particular type of ICFIMR, 776 F.Supp. at 651-652, nor did the "amount, duration and scope

regulation, 776 F.Supp. at 652-653. Plaintiffs' comparability argument was rejected because a

careful reading of the statute showed that "nothing in the statute prohibits a state from offering

different services to persons in different categories of medical need or with different degrees of

medical necessity.1i 776 F.Supp. at 654. A claim of inadequate funding failed because plaintiffs

could not identify any ICFIMR providers who refused to serve Medicaid recipients, 776 F.Supp. at

655. Finally, the court rejected a "freedom of choice" argument, saying: "By demanding a literal

'choice' ofICF-MRs, Plaintiffs are essentially asking this Court to compel Rhode Island to expand

its State Plan so that vacancies always exist to give applicants a selection among several different

facilities. Such a ruling would go well beyond the requirements of the Medicaid statute, both in

letter and in spirit. Rhode Island's treasury is not limitless, as the Medicaid Act emphatically

recognizes." 776 F.Supp. at 656-657.

The holding of King was recently supported by the Second Circuit in CERCPA C v. Health

and Hospitals Corporation, 147 F.3d 165 (2nd Cir. 1998). In that case, the complaint asserted that

a municipal agency's closing of a specialized health care facility would eliminate or reduce some

services needed by disabled children and would inconveniently relocate other services that those

children required. The court addressed the right to equal access of services, and citing Alexander

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797175/1073032.6·HCOI_DS2A

v. Choate, held that there was no guarantee of any particular level of medical care for disabled

persons, and no assurance of maintenance of service previously provided.

In Cherry v. Tompkins, 1995 W.L. 502403 (S.D. Ohio), the defendant State ofOhio changed

•

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,

••

-

• •

•• • , ? •

,",.... ,

••

•

the

level of care '.

criteria

se .

t .

forth

in

the

Ohio

Administrative

Code

to .

determine

if individuals

qualified for nursing facility seryices for Ohio's home and community based services, or for nursing

facility services during pre-admission screening. The plaintiffs claimed that the amended level of
•. 'c' ... ~~." ~-:.-:.-'r~~.-.:~~~::.t.<;~, ,-,"".'/-o--c"'<.~' ~'''''' r-.-~':;~Y;?''-~l.;'····~~:~h''·:·:,·' _'< ... ;.~, ;•• '.~ ,>~;;~ ..... ' "'. ,,:,. .... : _:••, .-,- ,", ",' ,,',; •. ~;"" " •
care criteria violated the amount, duration and scope provisions set forth in 42 C.F.R. § 440.230(c)
.. ~",.'··~,,,··,,·'·:::·:.1. . . . ,,;,~;~,,':".~· .. '>'~:;':<r(~~'",:c:~~,-.,:.c"'·::I:--: '.:~.~,~,~~~'1r_;~~~~~~"?'''::'~~~71~.;-~·~~~::r~m?7.1t1'r~,2:r,~'.::-J:·';;:·'·'-:: ':'~'.,_" ·??~>:.-r-.~;:. :,,;.,'~'~;'.";' ",~ .. ,~ ";\,'
restricting the scope ofnecessary medical services based on plaintiffs diagnoses. type ofillness and

conditions. The court rejected this claim and held: 'The Medicaid Act leaves such fiscal related

policy decisions to defendant as long as they are reasonable and in the best interests of Medicaid recipients. Plaintiffs did not demonstrate either unreasonableness in the amended criteria or that the

amended criteria failed to meet the best interests of the Ohio Medicaid applicants and recipients as

a whole."

In Doe v. Bush, 261 F.3~}03?(11t~ Cir. 2001). thec.?urtc.onsi?e~ed not only the amount,

duration and scope regulation but various other regulations under the Medicaid Act, some ofwhich

are relevant here and concluded: "What all ofthose statutory provisions and regulations mean is that

the de,fendantswere free to limit the provision ofICFIDD services to only those applicants for whom

ICF/DD services were deemed medically necessary." The Medicaid Act and regulations pennit a

state to define medical necessity in a way tailored to the requirements ofits own Medicaid program.

Plaintiffs' argument that they are entitled to be placed in an ICFIMR which is geographically

convenient to the family home is much weaker than the claims asserted by the plaintiffs in the

various cases cited herein. Plaintiffs' claim ignores the State's wide discretion to administer

Medicaid in a manner that is fiscally responsible and in the best interests of Medicaid recipients as

a whole. The State is faced with limited resources with which to fund services offered by providers

under the Medicaid program. Plaintiffs' theory and argument, if supported, would allow recipients

ofMedicaid throughout the State to demand a certain level and placement ofservices which would

require allocation of funds under the Program that should be left to the Executive and Legislative

branches of the State.

-25-

797175/1073032.6-HCOl_DS2A

Thus, even if Plaintiffs are correct that the Medicaid recipient's Itwell-beinglt and skill

development/maintenance are best served where the family is close by, even ifthey are correct that

the treatment is not as optimal where that is not the case, and even ifthey are correct that abuse and

neglect are more effectively monitored when the family is nearby,13 Illinois is not required to meet

any particular Itgeographical proximityn standard. Certainly it cannot be said in light of the

discretion the Act confers on States that Illinois was on notice of such a requirement when the

Medicaid Plan was adopted.

In this case, the Plaintiffs do not challenge a specific, explicit limitation contained in the

Illinois Medicaid Plan, but seek to make out a defacto provision that they claim fails to comply with

the Act. They describe the unarticulated provision in the negative: Itindividuals in the nine-county

area will not receive ICFIMR placements in close geographical proximity to their existing family

homes. It But in light of the affirmative right of the State to place limits on the services to be

provided, an explicit statement in the State Plan that ItICFIMR services may be provided anywhere

in the state without regard to geographical proximity to the previous family hornell would be

permitted under this line of decisions.

VI. The Reasonable Promptness Provisions of the Act and Regulations Do Not Amount To A Clear, Specific Mandate Requiring ICFJMR Placement Within A Reasonable Proximity of Family

.

"

. . . ~ ..".

...

. ." '"

. . , ..: ":~'. ... ....

.'

Reasonable promptness is only an issue if one assumes that family convenience in ICFIMR

placement is an entitlement. Plaintiffs' argument that there are insufficient ICFIMR vacancies to

serve persons in the nine-county northern Illinois area because the ICFIMR vacancies are

concentrated in southern Illinois effectively concedes that there are sufficient vacancies statewide

to accommodate all persons seeking such placements. Plaintiffs' evidence does not support a claim

that there are not enough ICFIMR beds in the State as a whole.

13There are a host of other provisions within the Act and Regulations designed to prevent abuse and neglect,42 C.F.R. §483,420(a)-{d) (Conditions of Participation for ICFIMR: Client Protection).Other than general statements, Plaintiffs provide no specific proof that these measures are inadequate where they are not supplemented by an increased level offamily involvement resulting from close geographical proximity.

-26-

797175/1073032.6-HCOI_DS2A

".

The reasonable promptness regulation does not say what Plaintiffs have repeatedly asserted

.

'.,

-

that it says. There is no mandate, either in the statute or the regulations, requiring that placements

be made within any defined period of time. The Act speaks of permitting everyone to apply for

assistance and provides that such assistance IIshall be provided with reasonable promptness to all

eligible individuals. n Plaintiffs seek to alter the meaning ofl1assistancell from financing to~ the actual

:'';_ ..., '\': 'P\ .....-:.~;.:. . __ ~.~:_._.

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":.:-.-

provision ofservices. This is not what the Act says, howey~r. There is nocontentioninthis case

that approval f()r ~1~i~~~:~~c~;~g~:g~~~?~()~~~~~~~r,~~ptlY tOI?e.:~S?ns seeking suchapp;oval.. Any·

holdup is in selection of a suitable facility, not in approval of payment.

The regulations expand this requirement beyond what the Act provides, but the result is the

same. There are two regulations. The first mandates eligibility determinations within a fixed time

period of ninety days, and provides for exceptions where the delay is caused by the applicant or

treating physician, 42 C.F.R. §435.922. Plaintiffs have made no showing of undue delay in

approving applications for Medicaid eligibility. The evidence shows, moreover, that because the

PAS agents assist Medicaid applicants to locate services from the very start of the process, no

cognizable harm would occur from a delay in providing approval.

The second requirement is that the agency's procedures not delay furnishing of Medicaid.

The regulation obviously refers to funding approval, but even if it was construed to app. ly to the ...•'

"~~~~~." !""~~:'.'~'

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provision of the services of an ICFIMR, there is no contentioll that any delay. in. providiIlg sllch

services is attributable to administrative delay by the PAS Agent. The Plaintiffs generally praise the

PAS Agents for their responsiveness, and counsel blames not the efficiency ofthe PAS Agents, but

aJ1alleged shortage of ICFIMR beds, for the fact that Plaintiffs and the supposed members of the

putative class have not been placed in ICFIMR's.

VII. There Is No Right Under the Medicaid Act To Community Based Services Or Any Limit On The Size oran ICFIMR To Be Provided

Plaintiffs have asserted that services in a small ICFIMR are virtually identical to those provided in a CILA. Defendants have vigorously disputed this contention because it is simply untrue, and because their effort to transition the delivery system from a primarily institutional system relying on large State operated developmental centers and ICFIDD facilities of varying sizes to a system emphasizing home and community based services is under attack by Plaintiffs. Plaintiffs'

-27-

797175/1073032.6-HCO I_DS2A

argument seems mainly to be that persons seeking CILA services should be included by the court as also seeking services in an ICFIMR.14

. The Medicaid Act specifically uses the e~pression t1institutionlt with reference to all

ICFIMR's, 42 U.S.C. §f396d(d), and sp~cifi~a.llyr~fer~~c~s t1community based services" only in

c.

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the context ofwaiver services, which include CILA as an alternative to treatment in an ICFIMR, 42

USC §1396n(c)(1). The evidence will show that these distinctions are not just a matter of statutory

nomenclature ..
What is significan!.i~~~~!.!l~~~erein anY part of the Medicaid Act or regulations is there

anything suggesting that there is a distinction among ICFIMR's based on size. There is nothing that

Plaintiffs have offered to the court that would provide any clear and specific standard for

. ..

. ~

".

.' ~ ~ ~ ,

.

determining the size of the ICFIMR in which an individual is entitled to be placed. Insofar as

'.""

. . .".: ,;

Plaintiffs are claiming that they have a right to a particular size of ICFIMR because skills

development/maintenance wili be superior, or becaus~ it ~ill be~efit their t1well-being," this is not

only contradicted by their own evidence, it suffers from the same deficiency as their arguments about

proximity to family.

Conclusion.

The Plaintiffs have articulated two claims in support oftheir effort to force Illinois to provide

them with ICFIMR placements within close geographical proximity of their family homes: active

0)'

, ,

•••• <,

treatment and Statewideness. They appear to assert a rightto an ICFIMR ofsome unidentified small

size. The legal grounds on which they rely do not give rise to federal rights because each relies on

a syllogism rather than on a specific command in the positive law, and none ofthe critical factors

affecting the outcome in the Supreme Court cases on this subject suggests that such a legal right

exists. The necessity for a clear mandate is made more urgent by the fact that recognition of a right

effectively abrogates sovereign immunity.

If one simply looks to the Medicaid Act itself, or even to the regulations, this is plain. The

active treatment regulation is directed to providers, not States, and addresses what is to happen after,

14This may also represent an effort by Plaintiffs to justify the isolated, but apparently improper imposition of a facility size requirement by Ms. Prunier-King in her handling of the Wilsman request for services.

-28-

797175/1073032.6-HCO I_DS2A

not before, a placement. The regulations call for ICFIMR's to facilitate family communication and involvement, but do not call for facilities to be near to the family. If that obligation was intended, it would have been expressly stated. The statewideness mandate as Plaintiffs assert it is equally absurd, and would turn the entire health care system upside down, requiring massive State intervention in the private market, if one accepted Plaintiffs' theory that the State was responsible for ensuring that the market provided a selection of ICFIMR vacancies close to home for every person with mental retardati()Il or adeveloPlllental disability. The Supreme Court and two Courts ofAppeal have recently addressed the correct interpretation ofthe Itstatewidenessrr requirement, and each has rejected the construction of that provision on which Plaintiffs rely.
As a statute based on the expenditure of pubic funds to accomplish social objectives, the Medicaid Act also relies on market forces to ensure that there are adequate providers. This is why the statute does not contain any provisions dealing with this important subjectthat give rise to a right to a nearby ICFIMR placement. The statute, rather, provides the State with broad discretion to define what package of benefits it will provide, and requires only that the package be designed to benefit the beneficiaries ofthepro~ram as a whole. It is within the discretion of the State officials charged with administration of the Illinois Medicaid Plan to seek to increase the munber of true community residential placements, CILA's, and to limit access to that service, at least for the immediate future, to persons with no home or community based alternative. Even if, as Plaintiffs claim, individuals outside that category who insist on receiving a residential placement may be inconvenienced by having to select a distant ICFIMR; and even if the placement is less beneficial, they are able to receive that service, and that is all that the Medicaid Act demands of the Illinois State Plan. Even ifthe de facto approach Plaintiffs advocate could be employed here, the provision they would inject into the Illinois Medicaid Plan would be perfectly pennissible.
The court's function here is limited to following the law. In so doing, it will enable the officials charged with responsibility for the Illinois Medicaid Plan covering persons with mental retardation and developmental disabilities to exercise their responsibilities with the interests of the entire population of such persons in mind, rather than devoting resources to constructing new facilities that will be obsolete before they are completed and that the putative class members and those who represent their interests have always opposed. Plaintiffs' expert, Dr. Braddock, praised

-29-

79717511073032.6.HCO 1_DS2A

.

Ms. Wright for her courage and leadership even as he said that leadership was what was restraining Illinois from improving its system. The law commands that she be pennitted to perfonn that role without interference.

Dated: January 11, 2001.
J. William Roberts Michael J. Leech Steven M. Puiszis HINSHAW & CULBERTSON 222 N. LaSalle Street, Suite 300 Chicago,IL 60601-1081 (312) 704-3000

Respectfully submitted,
HINSHAW & CULBERTSON
By:~d1tZ -
. . I .One of the attorneysfor the Defendants

-30-

79717SII073032.6-HCOI_DS2A

 
 ,-
,S"::::'. ,-...:....::.

.........

---..Joo.I

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

EDWARD BOUDREAU, by and through his parents, Edwin )

. and Ann Boudreau, BRIAN BRUGGEMAN, by and through his)

parents, Kenneth and Carol Bruggeman, FRANCES

)

CORSELLO, by and through her parents, Vincent and Agnes )

F"ILED

Corsello, ANGELA MOORE, by and through her parents,

)

James and Brenda Moore, LINDA SEMPREVIVO, by and )

through her parents, Richard and Ruth Semprevivo, individually)

JAN 1 62602

and on behalf of a class,

) )

u.s. CLERIVI(iI,CHAELD~TDOBBINs

Plaintiffs,

)

RICl' COUnT

)

vs.

)

No. 00 C 5392

)

GEORGE H. RYAN, in his official capacity as Governor ofthe )

JUDGE GRADY

State of Illinois, ANN PATLA, in her official capacity as

)

Director of the Illinois Department of Public Aid, LINDA

)

MAGISTRATE DENLOW

RENEE BAKER., in her official capacity as Secretary of the )

Illinois Department of Human Services, MELISSA WRIGHT, )

in her official capacity as Associate Director ofthe Office of )

Developmental Disabilities,

)

)

Defendants. )

NOTICE OF FILING

\. . - o$.~....- ........-.~

TO: Robert H. Farley, Jr., Robert H. Farley, Jr., Ltd., 1155 S. Washington, Naperville;~'ti0540

Thomas G. Morrissey, Thomas G. Morrissey, Ltd., 10249 S. Western Avenue, Chicago, IL 60643

PLEASE TAKE NOTICE that on January 16, 2002 we will file with the Clerk ofthe Circuit Court of Cook County, Illinois, Defendants' Memorandum of Law in Response to Court's Questions, a copy of which is attached hereto and herewith served upon you.

222 North LaSalle Street Suite 300 Chicago, Illinois 60601-1081 (312) 704-3000

By:r-____________~~--------
79717S/1007022.1-HC01_DS lA
I~

PROOF OF SERVICE I, Michel Royce, a non-attorney, certifY that I served this notice whom it is directed by 5:00 p.m. on the 16 day ofJanuary, 2001.
[xlUnder penalties as provided by law pursuant to ILL.REV.STAT.CHAP 110·SEC 1·109 I certify That the statements set forth herein are true and Correct

Y to each party to

79717S/I 007022. l·HCOl_DSIA

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

EDWARD BOUDREAU, by and through

)

his parents, Edwin and Ann Boudreau, et aJ., )

individually and on behalf of a class,

)

)

Plaintiffs, )

)

vs.

)

)

GEORGE H. RYAN, in his official capacity as )

Governor of the State of Illinois, et al.,

)

)

Defendants. )

F I LED

JAN 1 6 2002

No. 00 C 5C39L2e:-'KC,HU;A.,ES~LQtWSTRD!OC~B~NS
t\tlt"~ Judge GradY·"

Magistrate Denlow

\...\
J~\~

" -

1

7\\\\7.

..., ......... ,..,.'
DEFENDANTS' MEMORANDUM OF LAW IN RESPONSE TO COURT'S QUESTIONS -
---- ,1,1.-",.,.,"'"

This hearing does not need to go on forever. and it does not displace trial on the merits. The

court's quandary results from Plaintiffs' refusal to commit to any specific basis for the suit and their

injection of new legal theories at every turn of the class certification proceedings.

The issues before the court concerning the availability ofICFIDD beds for eligible persons

who have applied for residential placement are set forth in Part I. Plaintiffs' seek to make a de facto

showing that the Illinois Medicaid Plan does not comply with the Medicaid Act provision for an

ICFIMR entitlement because vacancies are not available to Medicaid-eligible persons. Part II

explains why the issue is not simply a comparison of the nwnber of vacancies to the number of

applicants, but the more complex problem of whether each person has a legally sufficient ICFIDD

vacancy available. With demand heavily skewed towards desirable facilities, where even a small

number of vacancies in other facilities remain available for extended periods, it means there is no

Itcritical shortage." The critical shortage is in beds of highly desirable facilities. Part III identifies

three class certification issues to which this question pertains: (1) whether the defendants have acted

or refused to act on grounds generally applicable to the putative class; (2) whether there are common

issues of fact and law; and (3) whether the individual Plaintiffs have standing to assert a claim. Part

IV addresses the subtext of the order: management of the class certification hearing.

797175/306S589.1-HCOl_DS2A

r.-

Introduction. These points should be focused only on the grounds for class certification set

forth in the Third Amended Complaint and Plaintiffs' Memoranda of Law filed in Support of Class

Certification. Our original objection filed on June 1,2001 began by pointing out that Plaintiffs'

Motion lacked the specificity "necessary to any analysis ofthe class certification issue." Since then,

Plaintiffs have repeatedly argued legal theories they did not plead:

•

That are placement ofmildly impaired individuals in a large rCFIDD facility is inappropriate.

•

That a small ICF/DD facility is the factual and legal equivalent of a CILA.

•

That family participation and thus geographic proximity to family is required under the

"active treatment" provisions ofthe Medicaid Act and regulations, introduced at mid~hearing

through an amended report of a previously undisclosed expert witness, Dr. Susan Parish.

•

That the defendants must act in the Plaintiffs' "best interests" 42 U.S.C. §1396a(a)(19),1 first

argued the same day that this court issued its order requesting clarification ofthe legal issues.

The shifting sands of Plaintiffs' legal theories make it virtually impossible for the court to analyze
what class certification issue(s) are being proffered. That is the point. Plaintiffs' approach also
prevents Defendants from challenging the legal sufficiency ofthese new theories injected during the
course of the hearing in light of the requirements of 42 U.S.C. §1983 and the 11 th Amendment.
Consider the class certification pleadings. The original proposed class definition was:
All developmentally disabled or mentally retarded individuals in the State of Illinois who are not receiving or have not received Medicaid services for which they are eligible.
After Defendants filed written objections to that proposed class definition, Plaintiffs
submitted a revised class definition in their Memorandum of Law in Support of Class Certification:
All developmentally disabled or mentally retarded individuals residing in the Counties of McHenry, Lake, Kane, Cook, DuPage, Kendall, Grundy, Will and Kankakee, in the State of Illinois, who are eligible to receive Medicaid services and who have not promptly received either Intermediate Care Facility for the Developmentally Disabled (ICF/DD) or Community Integrated Living Arrangement (CILA) placement.

lPlaintiffs quoted only a portion ofthe "best interests" provision (omitting the mandate for simplicity of administration). Various federal courts after reviewing the regulation in its entirety have repeatedly held that regulation is too vague and amorphous to be enforced through the vehicle ofa §1983 action. Defendants are entitled to challenge the legal sufficiency of these new causes of action before they are considered.

-2-

79717513065589. [-HC01_DS2A

The only issue in the definition is reasonable promptness. In the Memorandum, Plaintiffs argued an amalgam of two other Medicaid provisions: "statewideness" under 42 U.S.C. §1396a(a)(l) and "comparability" under 42 U.S.C. §1396a(a)(1 0)(B)(I).2 Plaintiffs then claimed, at 2, an inability to obtain ICF/DD services "due to a critical shortage ofICF/DD facilities in the nine county area..."
Defendants pointed out that nine ofthe original ten Plaintiffs never sought placement in an ICFIDD facility, and that the one Plaintiffwho did so only sought placement at a particular facility who would not accept him because ofmedical issues and subsequently turned down a placement at
st. Colletta. The court then suggested to Plaintiffs' counsel that they file another amended complaint
with "perfect plaintiffs" in order to obviate several of the objections which the defendants raised as to those ten standing to serve as class representatives.
Plaintiffs filed their Third Amended Complaint on September 26, 2001, adding four new class representative Plaintiffs. Plaintiffs did not revise their class definition, nor did they provide the court with any further specification ofthe issues presented by their Motion for Class Certification before the hearing began. Plaintiffs have not requested leave to amend their proposed class definition or the legal issues to be certified. Therefore, the issues framed for resolution in this hearing can only be found in Plaintiffs' June 12th Memorandum, which contains their proposed revised class definition and identifies the legal issues to be resolved at this hearing. This answers the court's first question: Plaintiffs assumed and bear the burden of proving that there is in fact a "critical shortage" ofICFIDD beds in the relevant geographical area and that this results in a lack of statewideness or a lack of reasonable promptness required by the Medicaid Act. The remaining legal theories are not properly before the court. We discuss them below only because the court has consistently overruled our objections to their consideration.
The Seventh Circuit has repeatedly recognized that while notice pleading is allowed under the federal rules, that a party can plead himself out of court by virtue of the theories asserted in his

2Plaintiffs asserted that Medicaid's comparability requirement was violated because of the excess bed capacity in the "southern region of the State of Illinois" and they them compared the number of bed vacancies in that nine county region with the rest ofthe State as reflected in the May, 2001 ICFIDD vacancy report, Plaintiffs' Memorandum ofJune 12,2001, at 3. In effect, Plaintiffs sought to inject one requirement, comparability, into a distinct requirement, statewideness. But "comparability" simply prohibits providing different packages of benefits to persons with the same developmental disabilities.

-3-

797175130655&9, l-HC01_DS2A

pleadings and the legal arguments related thereto, Holman v. State ofIndiana, 211 F.3d 399,406 (7th Cir. 2000)(claim of one form of sexual harassment in Complaint precluded later assertion of different claim).Plaintiffs are not immune from that rule simply because their pleading is a Motion for Class Certification. IfPlaintiffs choose a theory not susceptible of class treatment or not legally cognizable, the motion must be denied.
We begin by laying out the claims on which the Court has heard evidence. By describing them we do not concede that they are properly considered, much less valid.
I. Elements of Plaintiffs' Claims 1. Plaintiffis a person eligible under Medicaid for services in an intermediate care facility for
the mentally retarded (,'ICFIMRtt), consisting of the following:
a. Plaintiff suffers from mental retardation or a related condition (developmental disability);
b. Plaintiff is over the age of 18; c. Plaintiff is not in need of care in a nursing facility; and d. Plaintiffs is in need of active treatment so as to be eligible for placement in an
ICF/MR.
2. Plaintiff has sought ttmedical assistanceIi in the form of ICFIMR benefits (including case management) from a Pre-Admission Screening CUPASIt) Agency and has undergone a "Level II" screening covering the points in l(a) through led) above3•
3. The recipient and family have diligently sought placement in an ICF/MR, including:

3PAS Agents proceed explore ICF/MR placement options without waiting for individuals to obtain the financial certification of Medicaid eligibility. This has led the court to say that it will look to actual eligibility rather than any determination. However, there are two distinct determinations: a financial determination, made by a local DHS office, and a clinical determination, made by the QMRP at the PAS Agent. After a Level I PAS Screening finding that an individual is "probably" developmentally disabled, the PAS Agent begins case management services whether or not the individual is financially Medicaid eligible because even ifMedicaid supported services are not available, referring the individual to other (statefunded) services is part of the PAS Agent's function. While an individual may seek services before obtaining Medicaid certification (either the financial determination from a local DRS office or the Level II screening clinical determination from the PAS Agent), no one is legally entitled to "medical assistance" in the form of services in an ICF/MR under the Medicaid Act until all these prerequisites have been satisfied.

-4-

797 175/3065589. l-HCOl_DS2A

a. The family consistently expressed a willingness to accept an ICF/MR placement when it became available within the geographical area.
b. The family diligently sought to locate a facility that would meet the needs of the Plaintiff, including maintaining consistent communication with the PAS Agent.
c. The family did not place limits, such as on the type, size or reputation of facility or provider to be sought or accepted.4
4. The family could not obtain a placement for the recipient in an ICFIMR within the applicable geographical area due to a "critical shortage" ofICF/DD beds.
5. The inability of the family to obtain a placement in an ICF/MR, giving due consideration to the difficulty of locating a "match" between the recipient and the facility, results from a failure of the Illinois Medicaid Plan to comply with one of the legally enforceable requirements of the Medicaid Act listed below.
De Facto Plan Provision Theory. The final element depends on the basis for Plaintiffs' claim that the Plan violates the Act. The memoranda oflaw submitted by the parties last week indicate that they have widely divergent positions on what may represent a failure of the Illinois Medicaid Plan to comply with the Medicaid Act. It is clear, however, that Plaintiffs do not attack any specific provision of or omission from the Plan itself, for they have not identified a single provision of the Plan. Rather, Plaintiffs contend that they can prove that a de/acto provision ofthe Illinois Medicaid Plan exists which violates the Medicaid Act. Defendants object to this approach. Plaintiffs seem to have two distinct claims.
First Claim: State Is Required To Provide ICFIMR "Services," First, Plaintiffs claim that contrary to the statutory definition of "medical assistance" as payment for services obtained by the recipient in the market for medical services, Medicaid requires Defendants to ensure the availability ofany service that Medicaid funds in the private marketplaceS. They contend that the statute requires

4A facility that is inappropriate based on objective, compelling clinical concerns could be rejected; otherwise no licensed, Medicaid certified facility within the geographical area could be rejected if this element is to be satisfied.

5As Defendants have pointed out, the only aspect ofthe Medicaid Act that imposes an obligation to ensure that services are available falls into the area ofrate-setting. This provision, 42 U.S.C. §1396a(a)(30), is no longer enforceable under §1983, HCMF Corp. v. Gilmore, 26 F.Supp.2d 873, 876 (W.D. Va. 1998).

~5-

797175/3065589.1·HCO I_DS2A

t'":' .. -~- .

that Medicaid "services" be made available by the State. Since the statute defines ICF/MR as a
service that Medicaid will fund, they argue, the State must actually provide that service. The
existence of what Plaintiffs call a "critical shortage" (see Part II, infra.) in the applicable geographical area means that the State's Medicaid Plan does not comply with the Medicaid Act.6
Under this claim, if the court accepts the premise that the statute requires Illinois to ensure
that there are adequate beds, Plaintiffs would be required present a colorable claim on one of the
following grounds. Defendants contend strongly that none of these theories is legally sufficient
under 42 U.S.C. § 1983 and that suit on each is barred by 11th Amendment sovereign immunity.
The first theory requires proof of a difference in availability of vacancies between the defined
geographical area and the State as a whole. The next two theories require proof of a lack of
availability (what Plaintiffs call a "critical shortage"). The final two theories require proof that a
placement close to home is necessary to "active treatment" or in the "best interests" ofthe recipient.
The theories are:
I. Plaintiffs' failure to obtain an ICF/MR placement was because the Illinois Medicaid Plan provides for so little availability ofICFIMR facilities in the northeastern nine counties (or other applicable geographical area) that the Plan does not comply with the statewide services requirementof42 U.S.C. §1396a(a)(1). (Statewidenesstheory: June 12,2001 Memorandum of Lawf
II. Plaintiffs' failure to obtain an ICF/MR placement was because the Illinois Medicaid Plan provides for an inadequate number ofICFIMR facilities within the applicable geographical area so that it is not possible for most persons seeking ICFIMR placement to find a placement with reasonable promptness, 42 U.S.C. §1396a(a)(8). (Reasonable Promptness theory: Third Amended Complaint).

61t is obvious from an examination ofthe Illinois Medicaid Plan that it is based on a form from the Department of Health & Human Services. Plaintiffs offer no explanation for why the form does not include any reference to the important subjects of availability of services and geographical proximity.

7Mixing metaphors, Plaintiffs also characterize this as a "comparability" theory based on 42 U.S.C. §1396a(a)(lO)(8)(i), which provides that each Medicaid recipient in a given category be entitled to comparable services as other recipients in that category. The fact that each person is entitled to ICF/MR benefits satisfies this requirement, however, and Plaintiffs use ofthis requirement is as a rhetorical device, suggesting that there is an amalgamated obligation of "statewide comparability," which is not the case.

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7971 75/3065589. l-HCOI_DS2A

III. Plaintiffs' failure to obtain an ICF/MR placement was because the Illinois Medicaid Plan provides for an inadequate number ofICF/MR facilities within the applicable geographical area and the lack of available vacancies in the applicable geographic area precludes Plaintiff from exercising the freedom of choice guaranteed by the Medicaid Act, 42 U.S.C. §1396a(a)(23). (Freedom of Choice theory: Third Amended Complaint)
IV. Plaintiffs failure to obtain an ICF/MR placement was because the Illinois Medicaid Plan provides for an inadequate number ofICF/MR facilities within the applicable geographical area and Plaintiffhas a right under the Itactive treatment" provisions ofthe Medicaid Act and regulations to a placement within the applicable geographical area because proximity to the family home is a prerequisite to active treatment.8 (Active Treatment theory: Hearing Testimony of Dr. Susan Parish)
V. Plaintiffs failure to obtain an ICF/MR placement was because the Illinois Medicaid Plan provides for an inadequate number ofICFIMR facilities within the applicable geographical area and Plaintiff has a right to placement within the applicable geographical area because proximity to the family home is in the best interests of the recipient. (Best Interests theory: January 10, 2002 Memorandum)
Second Claim: State Has Established De Facto Moratorium on ICFIDD Development.
Plaintiffs have also contended that Defendants established a de facto moratorium on ICF/MR
development that artificially limits the supply ofICFIMR beds. This is contrary to the evidence,
which is that the Department of Human Services decides about providing a letter of support on a
case-by-case basis. The Department does not seek to encourage the development ofnew ICFIMR' s,
but rather encourages the development ofnew CILA facilities. This is in keeping with the consensus
view of the disability community about what is in the best interests of persons with developmental
disabilities as a whole. Plaintiffs, claiming to represent these same people, contend that because
services in an ICF/MR are an entitlement, more such facilities must be developed, and that the
actions ofthe Department have created a It critical shortageIt ofbeds in the nine-county area. Under this claim, Plaintiffs would be required to show the following in addition to the elements above9;

8IfPlaintiffs do assert a claim that they are entitled to limit the scope oftheir searches for an ICP/DD placement to a specific size, an analogous element would be inserted here providing that active treatment requires placement in an ICP/DD of a particular identifiable size.

9Satisfaction ofthese additional elements would show that the alleged lack ofavailability ofICFIDD beds resulted from acts of the Defendants, but it would not overcome Plaintiffs' problem that the Medicaid Act does not require the State to provide services, so the alleged interference of the State in the market for

-7-

79717S/306SS89.I-HCOI_DS2A

A. The State of Illinois intervened in the market for ICF/DD beds by imposing a de facto moratoriurn on the development ofnew ICFIDD's and by causing the elimination ofexisting ICF/DD beds, to such an extent that the availability of ICF/DD beds was substantially reduced; and
B. But for the market intervention by the State of Illinois, Plaintiff would have been able to obtain an ICF/DD placement in the market that would have existed without the market intervention by the State.
II. What Is Wrong With A Simple "Shortage" Analysis The court asked, nmust the Plaintiffs prove that there are in fact fewer vacancies in the relevant geographical area than are necessary to service the number of eligible applicants?" The court may legitimately be concerned with the impact of availability of beds on the ability of Medicaid recipients to obtain their entitlement to rCF/DD Medicaid benefits. It is proper to ask whether Plaintiffs or the class they seek to represent are unable to obtain such benefits because the number of ICF/DD vacancies is too small. But if a number of legally sufficient vacancies are consistently available at ICFIDD's (within the geographical area) that applicants simply will not accept, there is no l1shortage." The demand is simply skewed towards more desirable facilities.lO Unlike the familiar college placement analogy, where reFIDD placements are concerned, one option is always under serious consideration: not to place at all. Many people come to the PAS Agent saying that they are seeking a placement, but only for future planning. Others look with some distant date in mind and do not proceed to placement when that time comes. Frequently, an applicant is interested in placement only ifthe rightprovider has a vacancy. Plaintiffs' calculations disregard these considerations. Also unlike the familiar college placement analogy, certain individuals-such as persons with serious behavioral issues or with significant medical

ICF/DD beds would still not be actionable under the Medicaid Act.

IOProvider waiting lists shed no light on the question. Both representatives of the facilities presenting their lists admitted on cross examination that they did not know whether any of the persons on their lists have been found eligible for Medicaid, whether any have had a Level II PAS screen performed andlor whether any have been found to be in need of active treatment. Additionally, Mr. Martin admitted that some ofthe persons on Clearbrook's list are children who would not be seeking services until some time in the future, Consequently, those waiting lists do not establish the level ofdemand by "eligible" individuals.

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797175/3065589.1·HCO I_DS2A

concerns-will always be more difficult to place. The number of facilities that are equipped to deal

with them will always be fewer. II

These are not hypothetical considerations:

•

Mr. Jones testified to at least two different distances that he would consider: three hours and

one hour (Tr., at 60-62). He then said he might consider a facility in the one-hour range even

if its programs were inadequate, if he could compensate for those limitations. (Tr., at 63)

•

Mrs. Auer designated a thirty-mile radius (Tr., at 427), but then said she would not rule out

something more than thirty miles away. (Tr., at 437) She insisted on ensuring that the facility

was appropriate in her own opinion. (Tr., at 444)

•

Mrs. Lowrey testified that she had to have a facility within 45 minutes, but that she could

only consider such a facility if she looked at it first. (Tr., at 1045-1046). She candidly

admitted that it would depend on Sharon's preference. (Tr., at 1046)

•

Mrs. Holmes (Doug Wilsmon's mother) said she would consider a facility up to three hours

away, but she did not think that would be in Doug's best interest because of the distance.

(Tr., at 244) She said she would consider, but not commit to, a facility in Joliet. (Tr., at 253)

Before making a decision, she would have to look at the programs provided. (Tr., at 261)

None ofthe Plaintiffs is simply demanding service as such; all understandably insist on deciding for themselves the adequacy of the facility by their own standards, even ifit is licensed and Medicaid certified. Nothing in Plaintiffs' evidence suggests that if an additional ten, fifty or five hundred ICF/MR's meeting only the minimum requirements were available, these or any other Plaintiffs would accept placement in those facilities even if they were just down the block.
This is not just an issue of the "match." Rather, it points up the fact that this is not a simple
market. Plaintiffs' largely anecdotal approach to proving a "shortage" is akin to attempting to show
discrimination in a disparate impact Title VII class action without considering the limitations
inherent in the statistics presented. A simplistic approach to proving a complex phenomenon is akin to presenting no evidence at all. This is not a situation in which a quick look at the case can rely

I1This points up the limitations ofa model that is based on geographical measurements of any kind. It is simply unreasonable to think that there will ever be facilities with the capacity to handle all special needs like these that can be in close geographical proximity to every family. It would be the equivalent of requiring an acute care hospital on every corner.

-9-

797175/3065589. J-HCO 1_DS2A

upon snapshot data or gross societal statistics: to even be probative, Plaintiffs' evidence must consider all relevant factors or it is inherently flawed and cannot be relied upon at all.
III. What The Court Has Before It That Requires Consideration oflCF/DD Availability Four Basic Elements. To obtain class certification, Plaintiffs must first prove: (1) the number
of members of the class must be sufficient to justify class treatment ("numerosity"); (2) the claims they assert must have common issues of fact and law with those of the putative class ("commonality"); (3) plaintiffs' claims must be typical of those of the class ("typicality"); (4) plaintiffs must be adequate representatives of the class ("adequacy of representation"). Fed.R.Civ.Proc. 23(a); Williams v. Chartwell Financial Services, Ltd, 204 F.3d 748, 760 (7th Cir. 2000); Mungia v. Tony Rizza Oldsmobile, Inc., 2001 WL 1104635 (N.D. Ill. Sept. 19, 2001)(Pallmeyer, J.); Gilmore v. Southwestern Bell Mobile Systems, Inc., 2001 WL 1539157 (N.D.
Ill. Nov. 30, 2001)(Hart, J.). The adequacy of representation element encompasses several other
points: (a) there must not be conflicts among the class representatives and the class they would represent, Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)("A class is not fairly and adequately represented ifclass members have antagonistic or conflicting claims. 'I); (b) class counsel must be competent to handle the case, Greisz v. Household Bank, 176 F.3d 1012, 1013-1014 (7th Cir. 1999); (c) the class representativees) must have standing, that is, at the time ofclass certification, it must be clear that the claim is not be a "clear loser" at the time filed, County of Riverside v. McLaughlin, 500 U.S. 44, 50-52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) and at the time class certification is sought, Robinsonv. Sheriffo/CookCounty, 167F.3d 1155, 1158 (7thCir. 1999).
To come within Rule 23(b)(2), a provision for cases seeking injunctive or declaratory relief and from which individuals may not opt-out, Plaintiffs must prove that the defendants have acted on grounds generally applicable to the class; Fed.R.Civ.Proc. 23(b)(2); Lemon v. International Union o/Operating Engineers, Local 139, 216 F.3d 577,580 (7th Cir. 2000)(the rule "operates under the presumption that the interests ofthe class members are cohesive and homogeneous such that the case
will not depend on adjUdication of facts particular to any subset of the class..."). 12 A class action

12Defendants have contended that Plaintiffs' insistence on construction of new ICF/DD facilities, most recently evidenced by their motion for preliminary injunction, disqualifies them from proceeding. Their class is made up ofpersons who are represented by a number oforganizations that have publicly caJled

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7971 7S/306S589. l-HCOI_DS2A

must also be manageable and represent the most efficient method of adjudicating the issues,
Williams v. Chartwell Financial Systems, Ltd., 204 F.3d 748, 760 (7th Cir. 2000).
The class certification hearing is to determine whether or not these elements are present.
"Disputes about class certification cannot be divorced from the merits, II Blair v. Equifax Check
Services, Inc., 181 F.3d 832, 835 (7th Cir. June 22, 2001). Hence, ifthere is sufficient availability
ofICF/DD facilities, then:
1. There is no common basis on which Defendants have "acted or refused to act" towards the putative class on which to base a claim ofactionable conduct. Failures to obtain placement may result from a family's unwillingness to consider all available facilities, unreasonable geographic limitations imposed by the family, a temporary and localized lack of available beds, failure of PAS Agent to provide, effective assistance, or any number of other factors. But they could not be a common basis on which the Defendants have acted or refused to act towards the class. see Patterson v. General Motors Corp., 631 F.2d 476, 481 (7th Cir. 1980)(necessity for showing group-based conduct, not individualized grievance).
2. Thus, there can be no common legal issue. Without a lack of available beds, under any of Plaintiffs' theories, there can be no failure of the Illinois Medicaid Plan to meet any of the requirements ofthe Medicaid Act claimed by Plaintiffs. Plaintiffs' case is entirely dependent on a de facto showing, which in tum relies on alleged inadequate ICF/MR bed capacity.
3. The issue is also an element of whether or not the individual class representatives have standing, in the sense that their respective claims are "clear losers" if there are available ICFIDD beds. There is no action, individual or class, without a showing of a failure of the Illinois Medicaid Plan to comply with the Medicaid Act. Plaintiffs' efforts to locate a placement and willingness to accept placements that are available are also called into serious question by vacancies at ICF/DD's they have either not sought or not accepted.
IV. Management of the Hearing Process
How We Got to This Point. In Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th
Cir. May 4, 2001) the Court of Appeals concluded that where class issues depended on a factual
point affecting subsidiary legal conclusions, which in tum affected the larger class action elements,
then consideration of the underlying fact was indispensable.

for a moratorium on ICF/DD construction that, contrary to Plaintiffs contentions, is not presently in place. Courts recognize that such advooacy organizations may represent legitimate interests of both their members and non-members, see National Organization of Women v. Scheidler, 267 F.3d 687, 708 (7th Cir. Oct. 2, 2001)

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797175/3065589.I·HCOI_DS2A

.. '[IJfsome ofthe considerations under Rule 23 (b)(3), such as 'the difficulties likely to be encountered in the management of a class action' overlap the merits-as they do in this case, where it is not possible to evaluate the impending difficulties without making a choice of law, and not possible to make a sound choice oflaw without deciding whether Bridgeport authorized or ratified the dealers' representations-then the judge must make a preliminary inquiry into the merits.
The subtext to the court's order is "How can the court be required to devote so much time to a class certification motion?" Szabo did not require the court to spend weeks in a hearing. The court commented, "Before deciding whether to allow a case to proceed as a class action, therefore, ajudge should make whatever factual and legal inquiries are necessary under Rule 23 .... A judge would not and could not accept the plaintiffs assertion as conclusive; instead the judge would receive evidence (if only by affidavit) and resolve the disputes before deciding whether to certify a class." Szabo, 249 F.3d at 676. The court analogized class certification to jurisdictional challenges. The usual course ofsuch proceedings calls for each side to submit affidavits and other factual material supporting their position. The court then decides based on the evidence presented, if it can, or decides from reviewing the materials submitted that there are credibility issues requiring live witnesses to resolve the matter.
Defendants urged that course on the court, but Plaintiffs' insisted on proceeding with live testimony.13 Plaintiffs then called 23 witnesses over a period of more than ten days of testimony. The court may eliminate issues by effectively finding Plaintiffs' evidence on a given point insufficient and may then refuse to hear any more evidence on that issue. But the court does violence to Defendants' right to be heard if, after listening only to Plaintiffs' presentation on a point, it decides that it has heard enough to make a decision. A court cannot know whether the evidence Plaintiffs have presented will remain persuasive without hearing what the Defendants have to say on the subject. It would fundamentally unfair, and unreasonable, to hear more than two full weeks of testimony by witnesses called by Plaintiffs, with the presentation controlled by Plaintiffs' questions, and then conclude, "I've heard enough."

i3It is within the court's discretion to accept affidavits or to hear live testimony in resolving a motion. Fed.R.Civ.Proc. 43(e).

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797175/3065589.I-HCO 1_DS2A

The Manageability Problem. In part, the length and breadth of this hearing is an indication of why class certification would be a big mistake. The degree to which individualized issues predominate over group issues becomes apparent as one tries to sort out whether or not there are sufficient vacancies. To begin to answer this question, one must go down to the level of an individual-by-individual analysis of recipient and family preferences; extent and history of the provider search; family circumstances; personal limitations; service needs; geographical location and so forth. Categorizing people into groups will lead to a host of disputes over which group an individual belongs in.
The Courts ofAppeals have concluded that a class action is not manageable where, as here, a host of individualized determinations concerning the class members would be required properly to define the class. In Isaacs v. Sprint Corp., 261 F.3d 679,682 (7th Cir. 2001), the court described a class action in which the District Court sought to certify classes arising from different conveyances made at different times in States with different legal standards as "a nightmare of a class action." Plaintiffs here present an ever-increasing list of legal grounds for their claims, and would require consideration of at least hundreds of different individual situations to make out the statistical showing of a "critical shortage" that they claim exists. Same problem.
In Newton v. Merrill Lynch Pierce Fenner & Smith, 259 F.3d 154, 191 (3d Cir. 2001), the court noted that manageability "encompasses the whole range ofpractical problems that may render the class action format inappropriate for a particular suit." In that case, investors sued over alleged violations of the "duty of first execution" in securities sales. The class action was brought under Rule 23(b)(3), and thus included damage claims. Although the court concluded that imputed reliance was appropriate, the necessity for individualized review of damages for each investor affected by the alleged violations precluded class certification because there was no way that the case could be tried. The need for "individualized inquiry into actual injury transformed the exploration of each and every customer's NASDAQ transactions ... into a mind-boggling undertaking. II 14 The

14The court balked at the notion of examining each ofthe 249 instances in which Dr. Zider said his computer program at CAU identified persons who sought residential placement but were unable to obtain placement. Defendants have reviewed each ofthose 249 instances, and the CAU files demonstrate that the list includes a large number of persons who were not seeking immediate residential placement (or even

-13-

7971751306S589.1-HCOl_DS2A

plethora of legal and factual issues that Plaintiffs present here, along with the complexity of the

subject matter, clearly demonstrates that class treatment is not called for.

Must This Hearing Continue Ad Infinitum? Absolutely Not. There are methods of

presenting evidence, which Defendants will employ, that will significantly expedite the remainder

of this hearing. Principal among them is the use of declarations to establish specific and objective

facts. Whenever possible, presentation will be done in an informal manner that will allow the court

to obtain and question the information more quickly than would be required for the

question-and-answer process oftestimony, and allow discussion oflegal and factual issues together,

as normally occurs in considering motions.

Here are some of the points on which we will present new information:

•

There was no Moratorium on ICF/DD Development during the 1990's,15

•

The "Don Fike" ICF/DD facilities are not about to downsize.

•

ICFIDD is proper for high-functioning individuals; if not, they are not eligible for benefits.

•

The records of PAS Agents on persons they have been unable to place show that the reason

for non-placement is not any "critical shortage.It

•

The most recent survey oflCFIDD availability for 2001 will show that placements are not

impossible because there are not enough vacancies. The length of time vacancies remain

open is believed to be inconsistent with a Itcritical shortage. It

•

An ICF/DD of any size is different from a CILA.

These matters were brought up in Plaintiffs' presentation. Defendants will be as quick as possible

in refuting that misinformation so that the court may make an informed decision on the motion.

residential placement at all). For all or virtually all ofthe remaining individuals, there are substantial reasons not associated with a "critical shortage," such as "family changed its mind" that explain why there has been no placement. We expect Plaintiffs will take issue with our summary, and the court will be back to an individual-by-individual review.

15Plaintiffs will show, inter alia, that in 1996, there were 38 new ICFIDD beds developed; in 1997
there were 53 new ICF/DD beds developed; in 1998 there were 26 new ICF/DD beds developed; and in 1999 there 124 new ICFIDD beds developed (a net increase of 111 for the year). In 2000 there were no changes in the number ofICF/DD beds and in 2001 one facility dosed its 6-bed ICF/DD.

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797175/3065589.1-HCOl_DS2A

Conclusion One ofthe considerations supporting discretionary appeal under Rule 23(1) was that "a grant of class status can put considerable pressure on the defendant to settle, even when the plaintiff's probability of success on the merits is slight. " [A] grant of class status can propel the stakes of a case into the stratosphere [and] some districtjudges may be tempted to use the class device to wring
settlements from defendants whose legal positions are justified but unpopular." Blair v. Equifax Check Services. Inc., 181 F.3d 832,834 (7th Cir. 1999). In this instance, Plaintiffs' counsel16 seek
to propel themselves into a position to redesign the State's system for providing free services to persons with meutal retardation and developmental disabilities by seeking reliefthat is contrary to the expressed desires of the disability community; construction of additional ICF/DD facilities.

Dated: January 16, 2002.

Respectfully submitted, HINSHAW & CULBERTSON

J. William Roberts
Michael J. Leech Steven M. Puiszis HINSHAW & CULBERTSON 222 N. LaSalle Street, Suite 300 Chicago,IL 60601-1081 (312) 704-3000

By: One of the attorneys for the Defendants

16It is well-recognized that class actions are lawyers' lawsuits, Robinson v. Sheriffo/Cook County, 167 F.3d 1ISS, 1158 (7th Cir. 1999)(referring to class counsel as the "mover and shaker")

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7971 7513065589. I.HC01_DS2A

 
 't Case: 1:00-cv-05392 Document #: 118 Filed: 02/26/02 Page 1 of 3 PageID #:484
Mi,"" 0"" Fom, (0&97)

~~

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge

John F, Grady

Sitting Judge if Other than Assigned Judge

CASE NUMBER

00 C 5392

DATE

212612002

CASE TITLE
MOTION:

Edward Boudreau vs. George H. Ryan
[In the followmgbox (a) indicate the partyfilmg the mOtion, e.g., plai, nti,ff, defendant, 3rd party plamtlff, and (b) stale bncflythe nature of the motion being presented.)

DOCKET ENTRY:

(1)

o

(2) o

Filed motion of [use listing in "Motion" box above,] Brief in support of motion due ___.

(3)

o

Answer brief to motion due___, Reply to answer brief due_ _ _,

(4)

o

RulinglHearing on _ _ _ set for ___ at _ __

(5)

o

Status hearing[heldlcontinued to] [set for/re-set for] on _ _ _ set for _ _ _ at _ _ _'

(6) o

Pretrial conference[heldlcontinued to] [set for/re-set for] on _ _ _ set for _ _ _ at _ _ _.

(7) o

Trial[set for/re-set for] on ___ at _ _ _'

(8) o

[Bench/Jury trial] [Hearing] heldlcontinued to _ _ at _ _ _.

(9)

o

This case is dismissed [with/without] prejudice and without costs[by/agreementlpursuant to]
o FRCP4(m) 0 General Rule 21 0 FRCP41(a)(I) 0 FRCP41(a)(2),

(10) •

[Other docket entry] ENTER FINAL JUDGMENT: This cause is hereby dismissed for lack of

standing .

• (II)

[For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone. Docketing to mail notices.

Mail AO 450 form.

Copy to judgeimagistratejudge.

AMM

courtroom deputy's initials

n '( (1"! ('I'! "! I Dat~/time-;ecervea ih1-J
central Clerk's Office

numberofnOlices
rfB 28.2002
date docketed
2/2612002 date mailed notice
AMM mailing deputy initials

Case: 1:00-cv-05392 Document #: 118 Filed: 02/26/02 Page 2 of 3 PageID #:485

00-5392.022

February 25, 2002

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

EDWARD BOUDREAU, by and through

)

his parents, Edwin and Ann

)

Boudreau, BRIAN BRUGGEMAN, by and )

through his parents Kenneth and

)

Carol Bruggeman, FRANCES CORSELLO, )

by and through her parents,

)

Vincent and Agnes Corsello, ANGELA )

MOORE, by and through her parents, )

James and Brenda Moore, LINDA

)

SEMPREVIVO, by and through her

)

parents, Richard and Ruth Ann

)

Semprevivo, individually and on

)

behalf of a class,

)

)

Plaintiffs,

)

)

v.

)

)

GEORGE H. RYAN, in his official

)

capacity as Governor of the State )

of Illinois, ANN PATLA, in her

)

official capacity as Director of )

the Illinois Department of Public )

Aid, LINDA RENEE BAKER, in her

)

official capacity as Secretary of )

the Illinois Department of Human )

Services, MELISSA WRIGHT, in her )

official capacity as Associate

)

Director of the Office of

)

Developmental Disabilities,

)

)

Defendants.

)

No. 00 C 5392

FEB 2 8 2002

FINAL JUDGMENT The court having determined, after an evidentiary hearing, that none of the four named plaintiffs has standing to maintain this action, This cause is hereby dismissed for lack of standing.

\ (

Case: 1:00-cv-05392 Document #: 118 Filed: 02/26/02 Page 3 of 3 PageID #:486

-2-

Date:

February 25, 2002

ENTER:

-dge

 
 Case: 1:00-cv-05392 Document #: 117 Filed: 02/26/02 Page 1 of 32 PageID #:452

)"1"l"l~ ()rd~r Fo'm (061<)7)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge

John F. Grady

Sitting .J udge if Other than Assigned Judge

CASE NUMBER

00 C 5392

DATE

February 26, 2002

CASE TITLE
MOTION:

Boudreau, et al. v. Ryan, et al. (consolidated with White v. Patla - 01 C 806)
[In the followmg box (a) mdJCate the party 1I11l1g the motIOn, e,g., plaltlllft, defendall\, 3rd party pJalllllll, and (b) )(ale bndh the nature of the motion being presented.]

DOCKET ENTRY:

(I)

o

(2) o

Filed motion of [ use listing in "Motion" box above.] Brief in support of motion due _ _ _.

(3) o

Allswer orief to morion uue

Reply to aIlSWt;r oriel' uue_ _ _ .

(4)

o

Ruling/Hearing on ___ set for ___ at ___

(5)

o

(6) o

Status hearing[held/eontinued to] [set forlre-set for] on ___ set for ___ at ___ . Pretrial conference[held/eontinued toJ [set forlre-set for] on ___ set for ___ at _ _.__

(7)

o

Triallsel forlre-set for] on ~_ _ at _ __

(8) o

[Bench/Jury trial] [Hearing] held/continued LO ___ at _ __

5(9) o

This case is dismissed [with/without] prejudice and without costs[by/agreementlpursuant to]
o FRCP4(m) 0 General Rule 21 0 FRCP41(a)(I) 0 FRCP41(a)(2).

(10).

[Other docket entry This cause is hereby dismissed for lack of standing. Plaintiffs' motion for

J a preliminary injunction [ ] is denied. Enter Memorandum Opinion. llO 2.- I

(II) x

[For further detail see order (on reverse side of/attached to) the original minute order .1

r-----
r-----
-x
-

No Il(}tices required. advised in open court. No 1l()1j(.:e~ required. Notices MAILED by judge's staff. NOllfi~d counsel by telephone. Docketing 10 mail nOlices. :vIall /\0 450 form. ellPY (0 ..

Document :\'umbcr

sn

,JM,.., d"",,) ,,,,,,,,,,

KAM

courtroom deputy's initials

,. I I
l.
I.DiHe/time· received 11'!.l central Clerk's Office (Reserved for use by the Coun)

KIIM mailing deputy inni3b

Case: 1:00-cv-05392 Document #: 117 Filed: 02/26/02 Page 2 of 32 PageID #:453

00-5392.022

February ):-'1 ?r)().?

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

EDWARD BOUDREAU, by and through

)

his parents, Edwin and Ann

)

Boudreau, BRIAN BRUGGEMAN, by and )

through his parents Kenneth and

)

Carol Bruggeman, FRANCES CORSELLO, )

by and through her parents,

)

Vlncent and Agnes Corsello, ANGELA )

MOORE, by and through her parents, )

James and Brenda Moore, LINDA

)

SEMPREVIVO, by and through her

)

parents, Richard and Ruth Ann

)

Semprevivo, individually and on

)

behalf of a class,

)

)

Plaintiffs,

)

)

v.

)

)

GEORGE H. RYAN, in his official

)

capacity as Governor of the State )

of Illinois, ANN PATLA, in her

)

official capacity as Director of )

the Illinois Department of Public )

Aid, LINDA RENEE BAKER, in her

)

official capacity as Secretary of )

the Illinois Department of Human )

Services, MELISSA WRIGHT, in her )

official capacity as Associate

)

Director of the Office of

)

Developmental Disabilities,

)

)

Defendants.

)

No. 00 C 5392

MEMORANDUM OPINION Before the court is the defendants' challenge to the plaintiffs' standing to bring this lawsuit. For the reasons explained below, we find that the plaintiffs do not have standing.

\ \ 1

Case: 1:00-cv-05392 Document #: 117 Filed: 02/26/02 Page 3 of 32 PageID #:454
- 2-
BACKGROUND Procedural History
The plaintiffs are developmentally disabled adults who reside with their parents but seek Medicaid-funded residential placement. They brought this suit alleging that the defendants' policies and practices violate various provisions of the Medicaid statute, the Rehabilitation Act, and the Americans with Disabilities Act (ADA). In addition, they present equal protection and due process claims.
This court dismissed the ADA claim in May of 2001, see Boudreau v. Ryan, No. 00 C 5392, 2001 WL 840583 (N.D. Ill. May 2, 2001), but denied the defendants' motion to dismiss the other claims. The plaintiffs then filed a motion for class certification pursuant to Federal Rule of Civil Procedure 23(b) (2). Following briefing and oral arguments, the plaintiffs amended the complaint to add four new class representatives: Douglas Wilsman, Leah Jones, Christine Auer, and Sharon Lowrey.] The defendants continued to object to class certification on the basis that the plaintiffs lack standing to sue and do not satisfy the criteria set forth in Rule 23(a). We held an extensive evidentiary hearing on these issues. Near the end of the hearing, the plaintiffs sought to withdraw their motion for class certification. But it was still necessary to finish the hearing in order to resolve the threshold question of standing. In fact,
li This is reflected in the Third Amended Complaint.

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the bulk of the evidence introduced at the hearing bore upon that issue.'
Services At Issue Medicaid is a cooperative federal-state program under which
states receive federal funding to provide health care to lowincome individuals. State participation in the Medicaid program is voluntary, but if a state elects to participate it must comply with the requirements of Title XIX and applicable regulations. Alexander v. Choate, 469 U.S. 287, 289 n. 1 (1985). The state must submit to the Secretary of the United States Department of Health and Human Services (HHS) a State Plan which enumerates what services it will provide under the Medicaid program.
There are two types of residential Medicaid services at issue here: intermediate care facilities for the mentally retarded ("ICF/MR" or "ICF/DD")3, and community integrated living arrangements (CILA). An ICF/MR is "an institution for the mentally retarded or persons with related conditions," the primary purpose of which is to provide health or rehabilitative
Y The plaintiffs also.moved to file a fourth amended complaint to reflect the claims they raised during the hearing, including Medicaid's requirement that services be provided in a manner that is in the best interest of recipients and that recipients have freedom of choice in providers. See 42 U.S.C. §§ 1396a(a) (19) and (23). In view of the fact that the defendants addressed these provisions during the hearing and were clearly prepared to respond to them, we allowed the plaintiffs to amend the complaint to conform with the proof.
Y Under Illinois regulations, "ICF/MR includes .. ' intermediate care for the developmentally disabled." 59 Ill. Adm. Code, Chapter I, Part 120.10. The defendants contend that reFs/DO are private facilities licensed as ICFs/MR. While all ICFs/DD are ICFs/MR, not all ICFs/MR are ICFs/DD. This distinction does not appear to be material to the issues before the court, and we will use the terms interchangeably.

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services for its residents. See 42 U.S.C. § 1396(d). The state of
Illinois has adopted a State Plan that includes services in an
ICF/MR, and the defendants admit that individuals found eligible
for ICF/DD services are entitled to these services. Pre-admission
screening (PAS) agents' located throughout the state determine an
individual's eligibility for ICF/DO services and refer them to
placement options.
In the event ICF/OO services are unavailable, the plaintiffs
in this case seek residential placement in CILAs, which Illinois
regulations define as
A living arrangement provided by a licensed community developmental disabilities services agency where eight or fewer individuals with a developmental disability reside under the s1lpervision of the agency. Individuals receive a customized array of flexible habilitation or personal care supports and services in the home, in day programs and in other community locations under the supervision of a community support team within the local agency.
59 Ill. Adm. Code, Chapter I, Part 120.10. CILA services are not
ordinarily covered by Medicaid funding. To provide funds under
the Medicaid program, states must apply to the Secretary of HHS
for a "waiveru of certain Medicaid requirements. Illinois applied
for and was granted a waiver under the home and community-based waiver ("HCBWU) program to provide services ("waiver services U),
if The Illinois Administrative Code defines PAS agents as Community agencies or units of local government selected by the Department to act as agents of the Department in carrying out certain federal and State requirements related to the assessment, determination of eligibility, and arrangements for Medicaid-funded services and supports for individuals with a developmental disability. 59 Ill. Adm. Code, Chapter I, § 120.10.

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including CILA care, to individuals who are eligible for and would otherwise require ICF/MR level care. Generally, the twin goals of the waiver program are to avoid institutionalization of the disabled and to provide a cost-effective alternative to placement in ICFs/DD.
The defendants argue that there is no entitlement to CILA services. Due to limited resources, the state has capped the number of individuals who may receive waiver services under the HCBW program to 8,250 slots. The Illinois Department of Human Services (DHS) has fashioned priority placement guidelines with the goal of providing CILA care to individuals who, in its judgment, have the most compelling needs for community residential placement funded by Medicaid. For example, elLA placement is provided to developmentally disabled individuals who would otherwise require institutionalization when their caregivers die, become disabled themselves, or become abusive. The procedure for obtaining CILA services begins with the PAS agents, which assess an individual's eligibility and needs. Requests for ClLA placements are then handled through a centralized system at the DHS, where Network Facilitators review the proposed placements presented by the PAS agencies, and determine who fits within the priority placement guidelines.
The plaintiffs argue that despite their requests for residential Medicaid services, they have been unable to obtain ICF/DD placement. They introduced evidence showing that the

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defendants have adopted a plan to move Illinois' residential system away from an ICF/DD model and toward a more communityintegrated model exemplified by CILA care. To carry out this plan, the defendants' policy is to prevent providers from developing new ICFs/DD and to encourage existing ICFs/DD to close, downsize, or convert to CILAs. The evidence at the hearing showed that the defendants implemented these policies before conducting any inquiry into the demand for ICF/DD services. s In the plaintiffs' view, these policies have contributed to a shortage of rCF/DD vacancies in the nine northeastern counties of the state: Cook, DuPage, Lake, Will, Grundy, Kankakee, Kane, Kendall, and McHenry counties. The plaintiffs argue that the shortage has caused the plaintiffs and other eligible individuals to be unable to find appropriate ICF/DD placement. When such individuals seek residential Medicaid services in the form of CILA care, however, the defendants refuse to fund available crLA placements' on the ground that waiver services are not entitlements and funding is only available in emergency situations.
The defendants defend the state's right to make the policy choice to move the system away from the institutional approach
~J The DHS is now conducting a survey of consumers to identify needs and desires for reF/DO placement.
if There is a distinction between a vacancy in a elLA home and a elLA funding slot. Even if a elLA home has a vacancy, funding for that placement is contingent on an individual meeting the priority placement guidelines and being app~oved for funding by the DHS. Tr. 2220-2225 (testimony of Melissa Wright). The evidence showed that there are unfunded vacancies in elLA homes in the Chicago area. Id.

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represented by ICF/DD care and toward a more community-integrated
model. While ICF/DD vacancies are more difficult to find in the
northern part of Illinois, vacancies are readily available in
downstate Illinois. The defendants argue that the plaintiffs'
failure to find placement is not due to a critical shortage of
ICF/DD vacancies, but due to the geographic choice to which they
have limited their search. They argue that the plaintiffs have no
standing to bring this case because there is no federal right to
residential Medicaid placement within geographic proximity to the
recipient's family home.
Analysis
We begin with the fundamental principles of standing.
The Constitution confines the federal judicial power to
"Cases" or "Controversies." u.s. Const. Art. III, § 2.
Implicit in that limitation is the requirement that the party invoking the court's jurisdiction have standing.
Arizonans for Official English v. Arizona, 520 u.s. 43,
64, 117 S.Ct. 1055, 1067, 137 L.Ed.2d 170 (1997); Gillespie v. Cit v of Indianapolis, 185 F.3d 693, 701 (7th Cir.1999), cert. denied, 528 U.S. 1116, 120 S.Ct. 934, 145 L.Ed.2d 813 (2000). Broadly speaking, standing turns on one's personal stake in the dispute. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978). In order to establish that interest, the plaintiff must show that: (1) she has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speCUlative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992); Gillespie, 185 F.3d at 701.

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Kyles v. J.K. Guardian Sec. Services, Inc., 222 F.3d 289, 293-94
(7 th Cir. 2000). The party invoking federal jurisdiction bears
the burden of establishing the elements of standing, see Lujan v.
Defenders of Wildlife, 504 u.S. 555, 561 (1992), and "[wJhere
standing is challenged as a factual matter, the plaintiff bears
the burden of supporting the allegations necessary for standing
with 'competent proof.' " Retired Chicago Police Ass'n v. City of
Chicago, 76 F.3d 856, 862 (7 th Cir. 1996). "Competent proof"
requires a showing by a preponderance of the evidence that
standing exists. Id.; NLFC, Inc. v. Oevcom Mid-America, Inc., 45
F.3d 231, 237 (7 th Cir. 1995)
Each of the plaintiffs, Doug Wilsman, Leah Jones, Sharon
Lowrey, and Christine Auer, requested services from their local
PAS agent (through their parents) for the purpose of finding
residential Medicaid placement. Each is eligible for ICF/DO and
CILA level of care. 7 Christine and Sharon began searching for
21 We reject the defendants' contention that Christine is not eligible for rCF/OO or crLA level of care. The defendants do not challenge the PAS agent's determination that Christine is developmentally disabled, that she does not need a nursing facility, and that she does need an "active treatment" program. Therefore, Christine satisfies the substantive criteria for reF/DO eligibility. See Pl's Ex. Vol. II, DO. To the extent that the Notice of Determination does not reflect this conclusion with a check in the appropriate box, it is simply a clerical error by the PAS agency. Any argument that the failure to check the rCF/DD box reflected a decision that Christine would not benefit from rCF/DD level of care is belied by the eleven referrals the PAS agent made to reF/DD providers on Christine's behalf from 1992 through 2001. See Pls. Ex. Vol. If A.
Similarly, we reject any argument that Sharon Lowrey has no standing because she has not been found financially eligible for Medicaid. The PAS agent may only conduct a search for reF/DO placement if the applicant is on Medicaid or is Medicaid-eligible. The evidence is clear that Sharon will receive Medicaid benefits once she accumulates enough medical bills to meet her monthly "spend down" of $127. See Tr. at 2318-19 (testimony of Vilma Torres). At the time she applied for Medicaid, Sharon was not in an reF/DO placement and did not have any medical bills, so she did not qualify for a Medicaid card. However, the monthly cost of IeF/DD placement being over $3,000, it is beyond question that Sharon

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placement in 1994, Doug began searching for placement in 1998, and Leah in 1999. Because Medicaid funding for ICF/DD placement is contingent upon a referral from the PAS agent, the families requested the PAS agent to send referral packets to several ICFS/DD. None of the plaintiffs found ICF/DD placement.
As to three of the plaintiffs, Doug, Sharon, and Leah, the evidence shows that none refused to authorize the sending of a referral packet to any provider, and none refused to explore any potential vacancy suggested by the PAS agent. With respect to Christine, the evidence shows that the family did not investigate one vacancy opportunity recommended by the PAS agent. The Qualified Mental Retardation Professionals (QMRPs) from the PAS agents who worked with Doug, Sharon, and Leah testified at the hearing, and opined that the three plaintiffs had followed their recommendations and conducted diligent searches for ICF/DD placement. On the other hand, Lois Brown, the QMRP who worked with the Jones and Lowrey families opined that neither was in a great hurry to obtain placement for Leah or Sharon. Indeed, there is some evidence that Sharon's parents are interested in placing Sharon two to five years in the future. Janice Prunier-King, the QMRP who worked with Doug's family, testified that she was unable to locate a vacancy at an appropriate facility for him, which in her opinion is a small (16-beds or fewer) ICF/DD north of highway 1-80. Wilsman was denied CILA funding, despite Prunier-King's
will spend down $127 per month when she is placed in an ICF/DD and will be issued a Medicaid card. Id.

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strong recommendation to the DHS that Doug's family was in urgent need of residential placement.
The evidence is clear that each of the plaintiffs will only accept a placement in a geographic area that will allow frequent family visitation. For example, the parents of Leah Jones testified that they would not accept a facility more than one hour's drive from their home; the mother of Doug Wilsman testified that she would accept a placement no more than three hours away from her home; the mother of Christine Auer testified that she would accept a placement within a thirty mile radius of her home; and the mother of Sharon Lowrey testified that she preferred a placement in Elgin, Illinois but would consider a placement as far as 45-minutes away from her home. s Indeed, the plaintiffs argued throughout the hearing that ICF/DD placement should be provided in the communities in which they reside.
The injury, therefore, is not an inability to find ICF/DD placement at all, but to find it in the desired geographic proximity to the plaintiffs' family homes. Originally, this problem was framed as an inadequacy in the number of vacancies in the nine-county area. The plaintiffs acknowledge, however, that there are about 18 ICF/DD vacancies in the nine-county area at any given time. While that is not a great number of vacancies, there is no showing that any of the plaintiffs applied for any of
11 It is no criticism of these parents to observe that they all requested services within a particular geographic area. As several witnesses testified, the very decision to place an adult child in a residential setting is one that can be extremely stressful to a parent.

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the available slots or that the placements themselves are inappropriate. 9 Also, there is no dispute that there are many more ICF/DD vacancies in downstate Illinois and that none of the plaintiffs is interested in applying for or accepting any of those vacancies.
Therefore, the first issue the court must decide is whether plaintiffs have a federal right to be placed in a residential facility located at what they deem an acceptable distance from their family home. See Lewis v. Casey, 518 U.S. 343, 350-51 (1996) (identifying the underlying right at issue and stating that the harm alleged must pertain to that right); Lujan, 504
u.s. at 560 (defining injury as ~an invasion of a legally
protected interest"). If they have such a right, then additional

2/ The evidence presented as to the availability of reF/DO services was,

on the whole, unsatisfactory. Plaintiffs' evidence included the opinions of a

number of providers, PAS agents, and even employees of the DHS that there is a

shortage of reF/DO vacancies in the nine-county area. But defendants presented

witnesses who offered contrary opinions. What the court needed in order to

decide between these conflicting opinions was some hard evidence. The plaintiffs

did offer evidence that between January 1, 1999 and June 30, 2001 there were 378

individuals seeking residential Medicaid placement in the Chicago area who were

unable to obtain it. But the evidence was not persuasive because it did not show

that the failure to obtain placement was due to a lack of vacancies rather than

the individuals' preferences, self-imposed limitations on their search, or

behavioral or medical problems which required special treatment. Testimony about

waiting lists turned out to have little probative value. Evidence which

ini tially seemed impressive was the testimony of plaintiffs' witness Steven

Zider, Associate Executive Director of Community Alternatives, Ltd. (CAU), a PAS

agency. Dr. Zider produced a list of 249 adults with developmental disabilities

who, he said, had requested CAU to find immediate residential placement and for

whom placements could not be found. The defendants examined the CAll files

pertaining to these individuals and were able to show that in almost every case

the individual was not seeking immediate placement or was restricting his or her

search to particular facilities or to particular geographic areas.

On the other hand, the defendants' evidence that ICF/DD placements are

readily available was compromised by counting dubious vacancies

such as

vacancies which the facility is holding open for a particular individual or group

of individuals.

As indicated in the text, however, these deficiencies,in the evidence are

ultimately immaterial, because there is no disagreement that there are vacancies

both in the metropolitan area and downstate for which the plaintiffs have not

applied.

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questions are whether the defendants' plan, policies, or
practices violate that right and whether any judgment of this
court would provide plaintiffs an effective remedy.
I. Right to Placement In Geographic Proximity
The plaintiffs assert that their right to an rCF/DD
placement in geographic proximity to their homes arises under
various sections of the Medicaid statute, including the
"reasonable promptness" provision, 42 U.S.C. § 1396a(a) (8), the
"statewideness" provision, § 1396a(a) (1), the "comparability"
provision, § 1396 (a) (10) (8), the "freedom of choice" provision,
§ 1396a (a) (23), and the "best interest" provision,
§ 1396a (a) (19). In addition, they argue that their rights arise
under federal regulations and an agency theory.
To determine the defendants' obligations under Medicaid, we
begin by reviewing the principles underlying Spending Clause
legislation.
[LJegislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the "contract." See Steward Machine Co. v. Davis, 301 u.S. 548, 585-598 (1937); Harris v. McRae, 448 U.S. 297 (1980). There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. Cf. Employees v. Department of Public Health and Welfare, 411 u.S. 279, 285 (1973); Edelman v. Jordan, 415 u.S. 651 (1974). By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation.

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Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981) (holding that the Developmentally Disabled Assistance and Bill of Rights Act did not require the state to provide 'appropriate treatment' in the 'least restrictive environment' to mentally retarded individuals). Applying these principles to this case, we find nothing in the Medicaid provisions cited by the plaintiffs to suggest that Congress intended to require the states to provide rCF/DD placement within geographic proximity to the plaintiff's family home.
A. Reasonable Promptness Under the Medicaid Act, the State Plan must provide that "medical assistance ... shall be furnished with reasonable promptness to all eligible individuals." 42 U.S.C. § 1396a(a) (8). The parties dispute whether this provision means that the defendants actually have to provide rCF/DD placement to eligible individuals, a position supported by Doe v. Chiles, 136 F.3d 709 (11 th Cir. 1998) and Benjamin H. v. Ohl, No. 3:99-0338, 1999 U.S. Dist. LEXrS 22469 (W.D. Va. July 15, 1999), or whether it means that the defendants need only provide payment for rCF/DD services the plaintiffs find, a position supported by the definition of "medical assistance" as "payment of part or all of the cost" of "services in an intermediate care facility for the mentally retarded." 42 U.S.C. § 1396d(a) (15). We need not resolve the dispute because, regardless of the answer, there is nothing in the "reasonable promptness" provision or the regulations addressing it that suggests even remotely where such "medical

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assistance" must be provided. Therefore, this provision is irrelevant to the plaintiffs' position that they have a right to rCF/DD placement within.three hours, one hour, thirty miles, or 45 minutes from their homes.
B. Statewideness The State Plan for medical assistance must "provide that it shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them." 42 u.s.c.
§ 1396a (a) (1) .
Plaintiffs argue that this "statewideness" provision means that they have a right to placement in geographic proximity to their families' homes. The plaintiffs point out that fully twothirds of the state's population resides in the nine-county region, where only one-third of the rCFs/DD are located. 10 The plaintiffs argue that the defendants' policies perpetuate this lack of proportionality in a way that violates the statewideness requirement. Apart from encouraging existing rCFs/DD to downsize or convert to CrLAs, the plaintiffs point out that it is the defendants' policy to suppress the growth of rCFs/DD by refusing to provide letters of support to providers wishing to develop rCFs/DD. Without letters of support from the DHS, providers cannot obtain permission to build rCFs/DD from the rllinois
~I The evidence was consistent that developmental disabilities are evenly distributed throughout populations, and there is no reason to believe that these disabilities occur more frequently in the southern part of the state than in the nine-county area.

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Health Facilities Planning Board (IHFPB) For example, in May of 2001, defendant Melissa Wright denied a request by Joe Wesbrook, an ICF/DD provider, to develop an additional ICF/DD for community persons because the state is currently using its resources to develop CILAs. Indeed, Wright testified that the DHS's strategic plan over the next ten years is to de-institutionalize Illinois by building more CILAs and closing more ICFs/DD; she expressed a strong disinclination to allow more ICF/DD development because such facilities would only be converted to CILAs in the future. Three other providers located in the nine-county area testified that they would develop ICFs/DD if the DHS would allow it.
In support of their argument that the state's policies violate federal law, the plaintiffs cite Sobky v. Smoley, 855 F. Supp. 1123 (E.D. Cal. 1994). In that case, California adopted a practice allowing counties to determine whether and in what amount to provide Medi-Cal-funded methadone treatment services. Id. at 1126. Several counties opted out of providing methadone treatment services. Although the state's policy prohibited participating counties from refusing to serve non-residents if there was funding and space available, at least two counties nevertheless imposed residency requirements. Id. at 1129. Reviewing the regulations ll interpreting section 1396a (a) (1),

gl

(b) State plan requirements. A State plan must provide that the

following requirements are met:

(1) The plan will be in operation statewide through a system of

local offices, under equitable standards for assistance and

administration that are mandatory throughout the State.

(2) If administered by political subdivisions of the State, the plan will be mandatory on those subdivisions.

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Sobky concluded that the statewideness provision means that
services actually have to be provided in all areas of the state,
and not simply that the state must provide access to offices for
eligibility determinations and other administrative processes.
rd. at 1134-35. Sobky concluded that § 1396a(a) (1) is enforceable
under § 1983 and that California's plan allowing counties to opt-
out of providing an entitlement service violated federal law.
Sobky, however, is distinguishable from this case. Sobky addressed the second clause of the statewideness provision, which
requires that the terms of the State Plan must apply to all
political subdivisions administering the State Plan. There is no
contention here that any counties (or other political
subdivisions charged with administering the Medicaid program)
have refused to provide a service the state agrees to provide in
its plan. Instead, the plaintiffs contend that there is a
(3) The agency will ensure that the plan is continuously in operation in all local offices or agencies through--
(il Methods for informing staff of State policies, standards, procedures, and instructions; (ii) Systematic planned examination and evaluation of operations in local offices by regularly assigned State staff who make regular visits; and (iii) Reports, controls, or other methods. Ie) Exceptions. (1) "Statewide operation" does not mean, for example, that every source of service must furnish the service State-wide. The requirement does not preclude the agency from contracting with a comprehensive health care organization (such as an HMO or a rural health clinic) that serves a specific area of the State, to furnish services to Medicaid recipients who live in that area and chose (sic) to receive services from that HMO or rural health clinic. Recipients who live in other parts of the State may receive their services from other sources. 42 C.F.R. § 431.50.

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shortage of IeF/DD vacancies in the nine-county area and the state is aggravating the problem by interfering with the market. Sobky did not address a shortage of services in the market at large but the state's failure to require that entitlement services be provided in every county of the state.
Moreover, the plaintiffs' challenge is not limited to the lack of available IeF/DD beds in the nine-county area - they challenge the failure to provide services within specific geographic limits they individually define as "appropriate. ff In other words, it would not be sufficient that an IeF/DD bed is available within the nine-county area - or within their own counties for that matter - if the facility is more than one hour, 45-minutes, three hours, or thirty miles from their homes. As one would expect - and as the various positions of the plaintiffs illustrate - these limits are subjective notions of how far is "too far ff from the family home. The fundamental problem with the plaintiffs' claim is that nothing in the statewideness requirement nor the regulations contains any directive that services must be provided within any particular distance from the family home, much less any directive that the state provide services in a geographic area that meets subjective notions of appropriate proximity. We do not believe that any requirement that depends on such subjective and elastic notions of proximity can create a federal right. See Pennhurst, 451 U.S. at 17-18; Blessing v. Freestone, 520 U.S. 329, 340-41 (1997) (stating that a statutory provision cannot give rise to a federal right if it

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is "so 'vague and amorphous' that its enforcement would strain judicial competence").
Finally, this case is also different from Sobky in the type of services at issue. At issue here are residential placements that serve individuals whose level of impairments are diverse and who require a wide range of treatments and services. Unlike treatment slots available in a methadone program, reF/DO vacancies are not fungible. A setting that is appropriate for one moderately retarded applicant may be inappropriate for applicants who have more profound levels of retardation, or who require treatment for seizures, or who need to develop job skills In the community. Private reF/DDI2 providers have an interest in selecting an applicant for placement who is compatible with the population the facility is already serving. For example, Doug Wilsman was rejected from Sheltered Village (the only reF/DO provider in his county) because his high level of functioning was considered an inappropriate match for that particular reF/Do. We do not believe the Medicaid statute imposes upon the state the onerous burden of ensuring that appropriate reF/Do services for each needy and eligible applicant will be available within every political subdivision of the state. That would require the state to maintain a number of diverse reF/DO vacancies in every
.LV The reF/DO system in Illinois is primarily run through private providers who have no obligation to accept any individual referred by the PAS agents. The public facilities - State Operated Developmental Centers (SODCs) are generally a last resort, appropriate for individuals who are a danger to themselves or others. See HO$kins Ex. I, § 1000.40 (IV) (detailing the criteria for admission to an SODC) .

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locality. Nothing in the statewideness provision itself or in the regulations suggests that the state signed on to such a broad obligation.
Therefore, we hold that the statewideness provision does not establish the plaintiffs' right to placement in geographic proximity to their family homes.
C. Comparability Next, the plaintiffs argue that the state is violating Section 1396a (a) (10) (8) because the availability of ICFs/DD in the Chicago area is not comparable to the availability of ICFs/DD in downstate Illinois. Section 1396a (a) (10) (8) requires the State Plan must to provide that the medical assistance made available to any individual described in subparagraph (A)
(i) shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual, and (ii) shall not be less in amount, duration or scope than the medical assistance made available to individuals not described in subparagraph (A). 42 U.S.C. § 1396a(a) (10) (8). This section creates an equality principle by which all categorically needy individuals!3 must receive medical assistance which is no less than that provided to
!.ll Section 1396a(10) (A) refers to "categorically needy" individuals. With few exceptions, individuals who meet the "income and resource requirements" for some other form of government aid are considered categorically needy. Lewis v. Thompson, 252 '.3d 567, 570 (2"d Cir. 2001). "Medically needy" individuals are persons whose income exceeds financial eligibility standards, but who qualify for financial assistance for medical expenses if they "spend down" their income to the requisite level. Atkins v. Rivera, 477 O.S. 154, 157 (1986).

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any other categorically or medically needy individual. Sobky, 855 F.Supp. at 1139 (holding that this section is enforceable under § 1983).
The parties agree that finding an ICF/DD placement in downstate Illinois is easier than finding it in the Chicago area. H The plaintiffs argue that this is a violation of the comparability requirement because eligible individuals residing in the northern part of the state have less access to ICF/DD facilities near their family homes. We do not read the comparability provision so broadly. By its very terms, the comparability section addresses only the "amount, duration, or scope" of the medical assistance provided by the state. The statute is silent on the question of geographic proximity.
While one case has suggested that the comparability requirement means services should be uniformly available from county to county, the case did not address the more problematic issues presented by residential care facilities that serve a population of individuals with specialized and diverse needs. Cf. Clark v. Kizer, 758 F. Supp. 572, 580 (E.D. Cal. 1990), aff'd in part, vacated in part, Clark v. Coye, 967 F.2d 585 (9th Cir.
~I According to the defendants' own numbers, there were only 41 vacancies in the nine-county area on December 31, 2001, while there were 175 vacancies downstate. See Declaration of Stephen Rudolph, Tab B & C. The plaintiffs argue that there were only 18 vacancies in the nine-county area as of that date, and 115 vacancies downstate. See Parties' 12/31/01 Reconciliation of Statewide Vacancies. It is unnecessary to resolve the conflict. Our point here is simply that the parties agree there are many more vacancies in downstate Illinois than in the nine-county region.

Case: 1:00-cv-05392 Document #: 117 Filed: 02/26/02 Page 22 of 32 PageID #:473
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1992) (discussing dental services) .15 Moreover, Clark does not explain how the language of the comparability provision makes clear to the state that it is obligated to ensure availability of services uniformly in all parts of the state as a condition of receiving federal funds.
We find that the comparability provision does not contain a clear statement that the state is obligated to ensure that rCF/DD services are uniformly available in every part of the state or in geographic proximity to the plaintiffs' family homes.
D. Freedom of Choice The freedom of choice provision states: any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required (including an organization which provides such services, or arranges for their availability, on a prepayment basis), who undertakes to provide him such services. 42 U.S.C. § 1396a(a) (23). The plaintiffs argue that the defendants' policy of refusing to allow rCF/DD providers to develop new facilities violates the plaintiffs' freedom to choose their providers. The heads of four rCF/DD providers testified that they have approval from their Boards of Directors to develop residential Medicaid facilities, including rCFs/DD in the nine-
~/ The Sobky case addressed the comparability provision in the context of the state's failure to fund methadone treatment for all categorically needy individuals who are eligible for treatment. 855 F. Supp. at 1140. The issue here, by contrast, is not the unavailability of funding, but the scarcity of vacancies in a particular geographic area of the state.

Case: 1:00-cv-05392 Document #: 117 Filed: 02/26/02 Page 23 of 32 PageID #:474
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county area. These include: Joe Wesbrook, Executive Director of Garden Center for the Handicapped; Lynn O'Shea, Executive Director of Association for Individual Development ("AID"); Dennis Trybus, Executive Director of Helping Hand Rehabilitation Center; and James Hogan, President and Chief Executive Officer of Cornerstone Services. These witnesses testified that they would, in fact, develop ICFs/DD if the DHS would grant them letters of support to do SO.'6 Three of the plaintiffs, Christine, Leah, and Sharon, applied to AID, and Christine additionally applied to Helping Hand. They were all rejected because of insufficient vacancies, and/or because the providers prefer to serve individuals within a particular community, or because the applicant was not in an emergency situation. See Pis.' Ex. Vol. I, A-C.
We agree that the freedom of choice provision obligates the state to fund the placement of eligible individuals at an ICF/DD that has accepted him or her. See O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 785 (1980) (stating that the freedom of choice provision was intended to give individuals "the right to choose among a range of qualified providers without government interference"). However, none of the four plaintiffs have been denied funding at an rCF/DD that has accepted them for placement.
lil The defendants argue that reFs/DO may grow by as much as 10% without the approval of the IHFPB, and these facilities have not attempted to grow by 10%. The reason for this was made clear by Wesbrook, who testified that adding another bedroom to his existing reF/DO home would be more problematic than building another ICF/DD home. He is currently licensed as a 16-bed and under facility; to increase the number of residents in his reF/DD he would need another license and would have to meet the additional regulations pertaining to a fu11scale institution.

Case: 1:00-cv-05392 Document #: 117 Filed: 02/26/02 Page 24 of 32 PageID #:475
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Instead, the plaintiffs argue that the freedom of choice
provision entitles them to choose placement in facilities that do
not currently exist. The freedom of choice requirement is not so
broad. Cf. Kelly Kare Ltd. v. O'Rourke, 930 F.2d l70, l78 (2"d Cir. 1991) (stating that "a Medicaid recipient's freedom of
choice rights are necessarily dependent on a provider's ability to render services H).
Plaintiffs' freedom of choice argument encounters additional problems discussed by the Supreme Court in Warth v. Seldin:
When a governmental prohibition or restriction imposed on one party causes specific harm to a third party, harm that a constitutional provision or statute was intended to prevent, the indirectness of the injury does not necessarily deprive the person harmed of standing to vindicate his rights. ~ Roe v. Wade, 410 u.S. 113, 124 ... (1973). But it may make it substantially more difficult to meet the minimum requirement of Art. III: to establish that, in fact, the asserted injury was the consequence of the defendants' actions, or that prospective relief will remove the harm.
422 U.S. 490, 505 (1975). There are vacancies in the nine-county
area and additional vacancies downstate to which the plaintiffs
have not applied for placement. It is not valid to attribute the plaintiffs' failure to find rCF/OO placement to the state's
policy regarding the de-institutionalization of residential
Medicaid services. See id. at 508 (holding that "a plaintiff who
seeks to challenge exclusionary zoning practices must allege
specific, concrete facts demonstrating that the challenged practices harm himH) .

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Moreover, "[tJhe remedy must of course be limited to the
inadequacy that produced the injury." Lewis, 518 u.s. at 357. It
would be speculative to conclude that an injunction preventing the state from enforcing its policies would cause providers to develop new facilities that the plaintiffs would find acceptable and that would accept the plaintiffs for placement. See Warth, 422 U.S. at 506 (noting that the record failed to show that two housing projects identified by the petitioners "would have satisfied petitioners needs at prices they could afford, or that, were the court to remove the obstructions attributable to respondents, such relief would benefit petitioners") .
Therefore, we conclude that the freedom of choice provision does not create a right to choose non-existent services, and in any event, that the plaintiffs have not shown they meet the other elements of standing as to this claim.
E. Best Interest
The Medicaid statute requires the State Plan to provide that "such care and services will be provided in the manner consistent with simplicity of administration and the best interests of the recipients." 42 U.S.C. § 1396a(a) (19). Apart from the fact that the phrase "best interests" is an amorphous concept, this provision contains no clear directive that the state is required to provide rCF/DD services within geographic proximity to the plaintiffs' family homes. Indeed, forcing the state to do so

Case: 1:00-cv-05392 Document #: 117 Filed: 02/26/02 Page 26 of 32 PageID #:477
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would certainly compromise the "simplicity of administration" counseled by the statute.
F. Regulations The plaintiffs also claim that their right to rCF/DD placement in close proximity to their family arises out of two regulations. One regulation requires that each resident of an rCF/MR receive an active treatment program, which includes aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services ... that is directed toward the acquisition of the behaviors necessary for the [resident] to function with as much self-determination and independence as possible and the prevention or deceleration or regression or loss of current optimal functional status. 42 C.F.R. § 483.440(a). The plaintiffs introduced expert testimony from Dr. Susan Parish that family participation in the life of a developmentally disabled individual plays an extraordinarily important role in helping achieve better mental health, emotional health, and even physical health outcomes. Those who have limited social supports are more likely to experience depression and other mental illness, and to develop behavioral problems. The federal regulations recognize the need for family participation. See 42 C.F.R. § 483.420(c) (1) (stating that the rCF/MR must "promote participation of parents (if the client is a minor) and legal guardians in the process of providing active treatment unless their participation is unobtainable or inappropriate"); § 483.420 (c) (3) (stating that

Case: 1:00-cv-05392 Document #: 117 Filed: 02/26/02 Page 27 of 32 PageID #:478
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facilities are required to "promote visits by individuals with a relationship to the client (such as family, close friends, legal guardians and advocates) at any reasonable hour, without prior notice"); § 483.420 (c) (5) (stating that facilities must "promote frequent and informal leaves from the facility for visits, trips or vacations"). The plaintiffs point out that another regulation specifically requires family participation in developing an Individual Program Plan for the ICF/DD resident. The regulation states that "[p]articipation by the [resident], his or her parent (if the client is a minor), or the client's legal guardian is required unless that participation is unobtainable or inappropriate." 42 C.F.R. § 483.440(c)(2).
There is no doubt that family participation in the life of a developmentally disabled individual residing in an ICF/DD is extremely salutary. Dr. Parish's testimony also confirmed the common sense conclusion that close proximity to the family home can be one of the most important factors contributing to family involvement in the life of an ICF/DD resident. However, the above regulations set conditions for ICF/MR providers to participate in the Medicaid program; they do not impose obligations on the state to facilitate family involvement by providing ICF/DD placement in close proximity to the family home. To divine such a requirement out of these regulations would not only be a stretch, but ultimately futile, as this court cannot begin to imagine how to measure "close proximity to the family home" in this context. More to the point, the state cannot be expected to know what it

Case: 1:00-cv-05392 Document #: 117 Filed: 02/26/02 Page 28 of 32 PageID #:479
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is required to do under the plaintiffs' interpretation of the regulations. To echo the Pennhurst refrain once more, these regulations establish no clear duty on the part of the state to provide residential Medicaid placement within any particular geographic distance from the family home.
G. Agency Finally, the plaintiffs argue that the state is bound to provide ICF/DD placement in the geographic area recommended by its own PAS agents. The issue arises in the case of Doug Wilsman, whose PAS agent determined that due to his high level of functioning, a placement in a small facility of 16-beds or less would be appropriate for him, and that because of the desirability of frequent family visitation, it would inappropriate to place him south of highway 1-80. The plaintiffs point to a portion of the state's Procedures Manual For Developmental Disabilities Pre-Admission Screening Agencies in support of their position: The role of the DD PAS agency is to ensure compliance with applicable Federal and State laws, arrange for and conduct assessments, make necessary determinations regarding eligibility for services, educate individuals and families, and make referrals and provide linkage to appropriate and needed services. The PAS process will prevent inappropriate admissions to long term care facilities (nursing facilities and Intermediate Care Facilities serving persons with Developmental Disabilities [ICFDDs]) and inappropriate enrollments in waiver programs. Hoskins Ex. 1 at § 020.00 (emphasis added).

Case: 1:00-cv-05392 Document #: 117 Filed: 02/26/02 Page 29 of 32 PageID #:480
- 28 -
In the context of Spending Clause legislation, § 1983 can only be used to vindicate federal rights infringed by a state policy or practice. Mallett v. Wisconsin Div. of Vocational Rehabilitation, 130 F.3d 1245, 1253 (7th Cir. 1997). The plaintiffs have not articulated any federal right to placement in an area or facility determined appropriate by an agent for the state. The only source of right to which they have referred is the Procedure Manual itself, but the plaintiffs cannot use § 1983 to enforce the state's Procedure Manual. See Mallett, 130 F.3d at 1254 (holding that plaintiff failed to state a claim under § 1983 where he alleged that the state agency violated its own procedures in closing his file); Concourse Rehabilitation and Nursing Ctr. v. Wing, 150 F.3d 185, 188-89 (2 nd Cir. 1998) (holding that the plaintiff failed to state a federal claim where it alleged a misapplication of the State Plan instead of a conflict between a state plan or practice and a federal mandate) . In any event, the Procedure Manual also contains another section which specifically provides that the "DD PAS agency may not make recommendations regarding where services and supports must be provided, or by what provider(s)." See Hoskins Ex. 1, § 1000.20 (emphasis in original).
II. Remedy The preceding sections of this opinion have focused
primarily on the question of whether the plaintiffs have articulated a legally protected interest in receiving residential

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- 29 -

Medicaid services in close proximity to their family homes.

Answering the question in the negative, we have touched from time

to time on the problem of fashioning a remedy even if there were

such a right. In response to a question we posed during final

arguments, plaintiffs' counsel suggested that the appropriate

remedy would be for the court simply to order the defendants "to

come up with a plan

to provide services with reasonable

promptness addressing issues of comparability." Tr. at 3246-47.

An injunction of that nature would leave the defendants in a

quandary as to what they are required to do. It would pass off to

them a question the plaintiffs are themselves unable to answer.

Enforcement of such an injunction through contempt proceedings

would be impossible. "Holding a party in contempt is only

appropriate if the court can point to a decree from the court

which sets forth in specific detail an unequivocal command which

the party violated." United States v. Berg, 20 F.3d 304, 310 (7 th

Cir.1994).

The plaintiffs' reliance on Doe v. Chiles, 136 F.3d 709, is

misplaced. In that case, the Eleventh Circuit enjoined the state

of Florida from failing to provide ICF/DD placements within 90

days to individuals on the state's waiting list. Id. at 711. The

Eleventh Circuit was guided not only by the statute, section

1396a (a) (8), but by regulations addressing the meaning of

"reasonable promptness." By contrast, geographic proximity is an

Case: 1:00-cv-05392 Document #: 117 Filed: 02/26/02 Page 31 of 32 PageID #:482
- 30 -
amorphous concept not contained, defined, or addressed anywhere in the statute or regulations.
CONCLUSION Nothing in the Medicaid statute or the regulations imposes a clear obligation on the state to provide reF/Do services in close proximity to the plaintiffs' family homes. Because the concept of geographic proximity is entirely subjective, it would be impossible to enforce such a requirement in the absence of legislative guidance. More importantly, there is no evidence that the state had any idea it was undertaking such a vague and uncertain obligation when it elected to participate in the Medicaid program. We find that the plaintiffs have failed to articulate a right that has been infringed by the conduct of the defendants for which this court could grant relief. The case will be dismissed for lack of standing, and the motion for class certification will be denied as moot.17
III In Foster v. Center Township of LaPorte County, the Seventh Circuit observed that "it is clear that, if [the plaintiff] lack[s] standing to bring the claim in question in her own right, she cannot qualify as a representative of a class purporting to raise the same claim." 798 F.2d 237, 244 (7'" Cir. 1986) {remanding with directions to the district court to dismiss the claim at issue}.

Case: 1:00-cv-05392 Document #: 117 Filed: 02/26/02 Page 32 of 32 PageID #:483

- 31 -

DATE:

February 25, 2002
(-

\
\~

ENTER:

Grady, United States District d e

 
 Case: 1:00-cv-05392 Document #: 34 Filed: 05/01/01 Page 1 of 30 PageID #:31

Minuw Order Form (06197)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge
CASE NUMBER

John F, Grady 00 C 5392

Sitting Judge if Other than Assigned Judge
DATE

May 1, 2001

CASE TITLE
MOTION:
[

Boudreau et al. v, Ryan, et al.
[In the followmg box (a) mdtcate the party filmg the matton, e.g., plamttff, defendant, 3rd party plamttff, and (b) state bnefly the nature of the motion being presented.]

DOCKET ENTRY:

(1) o

Filed motion of [use listing in "Motion" box above,]

o (2)

Brief in support of motion due ___'

(3) o

Answer brief to motion due___, Reply to answer brief due___,

(4) o

Ruling/Hearing on ___ set for ___ at ___'

o (5)

Status hearing[held/continued to] [set for/re-set for] on ___ set for ___ at ___ '

o (6) ,

Pretrial conference[held/continued to] [set for/re-set for] on ___ set for ___ at ___ '

(7) o

Trial[set for/re-set for] on ___ at ___ '

(8) o

[Bench/Jury trial] [Hearing] held/continued to _ _ at _ _ '

(9) o

This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
o FRCP4(m) 0 General Rule 21 0 FRCP41(a)(I) 0 FRCP41(a)(2),

(10)_

[Other docket entry] Defendants' mot ion to dismi ss [19-1] is granted in

part, We grant the motion as to the plaintiffs' ADA claim (Count III), but

deny the motion as to Counts I, II, IV, and V, Further, this court orders

that the parties make all of the initial disclosures set forth under Federal

Rule of Civil Procedure 26 (a) (1) within 14 days of receipt of this opinion,

A status hearing is scheduled for May 30, 2001, at 9:30 a.m.

ENTER MEMORANDUM OPINION.

(11)

x [For further detail see order (on reverse side of/attached to) the original minute ordeL]

No notices required, advised in open court.

No notices required. Notices MAILED by judge's staff.

2 'ZOOI

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to KAM

courtroom deputy's initials

,. ", v/-_ _da_te m_ ai\!.:d_not_ i~ __

.~

.~

KAM

mailing deputy Initials

Case: 1:00-cv-05392 Document #: 34 Filed: 05/01/01 Page 2 of 30 PageID #:32

00-5392.011.MEV

May 1, 2001

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

EDWARD BOUDREAU, by and through his parents, Edwin and Ann Boudreau, BRIAN BRUGGEMAN, by and through his parents Kenneth and Carol Bruggeman, FRANCES CORSELLO, by and through her parents, Vincent and Agnes Corsello, ANGELA MOORE, by and through her parents, James and Brenda Moore, LINDA SEMPREVIVO, by and through her parents, Richard and Ruth Ann Semprevivo, individually and on behalf of a class,

DOCKETED
MAY - 22001

Plaintiffs,

v.

No. 00 C 5392

GEORGE H. RYAN, in his official capacity as Governor of the State of Illinois, ANN PATLA, in her official capacity as Director of the Illinois Department of Public Aid, LINDA RENEE BAKER, in her official capacity as Secretary of the Illinois Department of Human Services, MELISSA WRIGHT, in her official capacity as Associate Director of the Office of Developmental Disabilities,

Defendants.

MEMORANDUM OPINION Before the court is defendants' motion to dismiss the plaintiffs' amended complaint. For the reasons explained below, the motion is granted in part and denied in part.

Case: 1:00-cv-05392 Document #: 34 Filed: 05/01/01 Page 3 of 30 PageID #:33
- 2-
Background The following facts are drawn from the plaintiffs' amended complaint and are taken as true for the purposes of deciding this motion to dismiss. The named plaintiffs are five developmentally disabled and/or mentally retarded adults (ages 29 to 49) who live wi th their parents, some of whom are elderly. The plaintiffs' disabilities prevent them from caring for themselves fully, and they require twenty-four hour help to meet their basic needs to eat, bathe, and toilet. The defendants are George Ryan, Governor of the State of Illinois, Ann Patla, Director of the Illinois Department of Public Aid ("DPAU ), Linda Renee Baker, Secretary of the Illinois Department of Human Services ("DHS U ), and Melissa Wright, Associate Director of the Office of Developmental Disabilities ("ODDU). All are sued in their official capacities. The DPA is responsible for oversight and administration of the Medicaid program in Illinois, but it has delegated responsibility for the day-to-day administration of certain Medicaid programs to DHS, including the programs at issue here. The DHS must administer these programs according to the rules, regulations and procedures established by the DPA. The ODD is the office within the DHS that is responsible for the control and administration of the developmental disabilities program in Illinois. Established by Title XIX of the Social Security Act of 1965, 42 U.S.C. § 1396 et seq., Medicaid is a cooperative federal-state

Case: 1:00-cv-05392 Document #: 34 Filed: 05/01/01 Page 4 of 30 PageID #:34
- 3-
program under which states receive federal funding to provide health care to low-income individuals. State participation in the Medicaid program is voluntary, but if a State elects to participate it must comply with the requirements of Title XIX and applicable regulations. Alexander v. Choate, 469 U.S. 287, 289 n. 1 (1985). Also, the state must submit to the Secretary of the United States Department of Health and Human Services a "State Plan" which states what services it will provide under the Medicaid program. States can apply for a waiver of certain Medicaid requirements so that they can use Medicaid funds to pay for services that would not be covered otherwise, such as home and community-based services. 42 U.S.C. § 1396n(b) and (c).
The State of Illinois' Medicaid program includes services in an intermediate care facility for the developmentally disabled or mentally retarded ("ICF/MR").1 ICF/MR services provide health and rehabilitative services, in which individuals also receive active treatment, 42 U.S.C. § l396d(d), designed to help individuals reach optimal functional status and prevent loss of skills. See 42 C.F.R. § 483.440(a) (1) (i)-(ii). In addition, Illinois applied for and was g ranted a waiver to provide home and community-based services ("waiver services") to individuals who would otherwise require ICF/MR level care.
11 An intermediate care facility for the mentally retarded is a "Medicaidcertified long-term care facility as defined by 42 CFR 440.150 (1996) serving individuals with developmental disabilities. ICF/MR includes ... intermediate care for the developmentally disabled (77 Ill. Adm. Code 350), intermediate care for the developmentally disabled with 16 beds and under (77 Ill. Adm. Code 350) and State-operated developmental centers." 59 Ill. Adm. Code, Chapter I, Part 120.10.

Case: 1:00-cv-05392 Document #: 34 Filed: 05/01/01 Page 5 of 30 PageID #:35
- 4-
The plaintiffs have applied for and been found eligible for residential Medicaid services, including care in an ICF/MR, services provided in a community integrated living arrangement ("CILA U ),' and waiver services. Two of the plaintiffs were found eligible for these services in 1994. However, the DHS/ODD has not informed any of the five plaintiffs whether or when they will receive these services. The State of Illinois does not have a waiting list for granting eligible individuals residential Medicaid services.
The plaintiffs allege that the failure of the defendants to provide them with residential Medicaid services for which they are eligible violates their rights under the Medicaid Act, the Rehabilitation Act, the Americans with Disabilities Act, and the Equal Protection Clause. Moreover, the failure of the defendants to provide these services without a hearing violates the Due Process Clause. All of the claims are brought pursuant to 42 u.S.C. § 1983 (West Supp. 2000).
The defendants make numerous arguments as to why this complaint should be dismissed: (I) the claims are barred under the Eleventh Amendment; (II) § 1983 bars all claims against all the defendants; Spending Clause statutes, such as the Medicaid Act and
1/ The Illinois Administrative Code defines a "elLA" as "A living arrangement provided by a licensed community developmental disabilities services agency where eight or fewer individuals with a developmental disability reside under the supervision of the agency. Individuals receive a customized array of flexible habilitation or personal care supports and services in the home, in day programs and in other community locations under the supervision of a community support team within the local agency." 59 Ill. Adm. Code, Chapter I, Part 120.10. Part 120 is entitled the "Medicaid Home and Community-Based Waiver Services Waiver Program for Individuals with Developmental Disabilities."

Case: 1:00-cv-05392 Document #: 34 Filed: 05/01/01 Page 6 of 30 PageID #:36
- 5-
the Rehabilitation Act, cannot be enforced through the mechanism of § 1983; and the plaintiffs assert no federal right under § 1983; (III) the plaintiffs failed to plead the elements of a Rehabilitation Act claim; (IV) the Equal Protection Clause is not implicated because the State has a rational basis for treating the plaintiffs differently from others who do receive waiver services; and (V) the plaintiffs' claims do not implicate the Due Process Clause because the plaintiffs have neither a property interest in the services they seek nor do they challenge the fairness of the DHS's administrative appeal procedures. 3 We will address each of these arguments in turn.
Analysis I. 11th Amendment Immunity
The defendants argue that the Eleventh Amendment to the Constitution bars all claims against all defendants. The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State. U.S. Const. amend. XI. The Supreme Court has not limited sovereign immunity to suits described in the text of the Eleventh Amendment; it has extended Eleventh Amendment immunity to bar federal suits
11 The defendants also advance numerous arguments why the plaintiffs' ADA
claim should be dismissed. We will only address those arguments that compel us to dismiss that claim. See infra I.B.

Case: 1:00-cv-05392 Document #: 34 Filed: 05/01/01 Page 7 of 30 PageID #:37
- 6-
against an unconsenting state brought by her own citizens as well. Idaho v. Coeur d'Alene Tribe of Idaho, 521 u.s. 261, 268 (1997) (citing Hans v. Louisiana, 134 u. S. 1 (1890)); Edelman v. Jordan, 415 u.s. 651, 662-63 (1974) (same). As an initial matter, we note that the Eleventh Amendment does not bar the plaintiffs' Rehabilitation Act claim. Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir. 2000) ("the Rehabilitation Act is enforceable in federal court against recipients of federal largess"). The following will address the applicability of the Eleventh Amendment to the plaintiffs' other claims. A. Applicability of Ex Parte Young
Relying on the doctrine articulated in Ex parte Young, 209 u. S. 123 (1908), the plaintiffs argue that this action is not barred by the Eleventh Amendment because it is a suit against state officials, rather than the state itself, to obtain prospective injunctive relief from violations of federal law. The Supreme Court has explained that the doctrine of Ex parte Young does not apply simply because the plaintiff sues state officials rather than the state itself. If the suit is one that seeks retroactive payments or the recovery of money, the suit is considered to be one against the state and does not come within the ambit of the Ex parte Young doctrine. See Edelman, 415 u.S. at 668 (determining that to the extent the plaintiffs sought an award of accrued monetary liability in the form of retroactive payments, the suit was barred by the Eleventh Amendment); Ford Motor Co. v. Department

Case: 1:00-cv-05392 Document #: 34 Filed: 05/01/01 Page 8 of 30 PageID #:38

- 7-
of Treasury, 323 u.s. 459, 464 (1945) (holding that a suit against

state tax collectors for the recovery of overpaid taxes was a suit

against the state and therefore, barred). The rationale for this

rule is that any form of monetary award, even that labeled

"equitable relief,H will not be paid by the state official named as

the defendant, but will instead come from the state treasury,

thereby making the state the interested party. See Edelman, 415

u.s. at 666, 668. Such suits against states for money damages are

barred under the Eleventh Amendment.

On the other hand, suits against state officials for

violations of federal law are generally not barred by the Eleventh

Amendment if the plaintiff seeks only prospective injunctive

relief. This is true even if the enforcement of federal law

against those officials would cause the state to expend money that

it otherwise would not spend.

For example, in Edelman v.

Jordan, the plaintiffs sued Illinois state officials to require

them to comply with federally imposed time standards for

distributing benefits under the Aid to the Aged, Blind, and

Disabled program. To the extent the plaintiffs sought "payment of

state funds

as a necessary consequence of compliance in the

future with a substantive federal question determination,H the suit

was proper under the Ex parte Young doctrine. See Milliken v.

Bradley, 433 u.S. 267, 289 (1977) (discussing and quoting from

Edelman)

However, to the extent the suit sought retroactive

Case: 1:00-cv-05392 Document #: 34 Filed: 05/01/01 Page 9 of 30 PageID #:39

- 8-

payments for accrued violations of federal law, the claim was

barred by the Eleventh Amendment. Edelman, 415 U.S. at 668.

In so holding, the Edelman Court surveyed other Supreme Court

cases, noting in particular that requests for prospective relief

often have a substantial impact on state treasuries. Id. at 667.

For example, in Ex parte Young, the negative consequence on the

state treasury of the enforcement of federal law was the inability

of the state's Attorney General to impose the state's rate~setting

scheme on railroads.

Other cases have gone further and

ordered prospective relief that would require states to pay money

to individuals whose federal rights were violated by the states;

for example, in Graham v. Richardson, 403 U.S. 365 (1971), state

officials of Pennsylvania and Arizona were prohibited from denying

welfare benefits to qualified recipients who were resident aliens.

Id. The Edelman Court articulated the distinction between these

permissible claims for relief and the impermissible claims for

retroactive equitable relief as follows:

[Tjhe fiscal consequences to state treasuries in these cases were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of the Court's decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young.

Id. at 667-668. See also Milliken, 433 U.S. at 289 (stating that

Ex parte Young "permits federal courts to enjoin state officials

to conform their conduct to requirements of federal law,

Case: 1:00-cv-05392 Document #: 34 Filed: 05/01/01 Page 10 of 30 PageID #:40
- 9-
notwi thstanding a direct and substantial impact on the state treasury") .
The relief sought by the plaintiffs here is purely for prospective relief. Although the prospective relief sought could require the state to expend money to provide the services the plaintiffs seek, it would not require the state to pay money for prior violations of federal law. Therefore, there is nothing about the relief plaintiffs seek that bars the application of the Ex parte Young doctrine. See e.g., Doe v. Chiles, 136 F.3d 709, 720 (11th Cir. 1998) (holding that the Eleventh Amendment did not bar a lawsuit based on the Medicaid Act insofar as plaintiffs sought only prospective relief).
The defendants argue, however, that Ex parte Young is not applicable because special state sovereignty interests, such as those articulated in Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, are implicated by this case. We disagree.
In Coeur d'Alene, the plaintiff Coeur d'Alene Tribe contested the state's ownership of certain submerged lands, banks, and navigable waters. Although the plaintiff sought injunctive and declaratory relief, the Supreme Court analogized the case to a quiet title action over lands and navigable waters which, in the common law, have been held to "uniquely implicate sovereign interests." Id. at 283-85 (discussing in detail the treatment of lands and navigable waters as "essential attribute[s] of sovereignty" and held for the benefit of the public). The Court concluded:

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It is apparent, then, that if the Tribe were to prevail, Idaho's sovereign interest in its lands and waters would be affected in a degree fully as intrusive as almost any conceivable retroactive levy upon funds in its Treasury. Under these particular and special circumstances, we find the Young exception inapplicable. Id. at 287 (emphasis added). According to the defendants, this action seeks to force the state to fundamentally alter the State's Plan and to reallocate its Medicaid funding. The defendants do not point out how these interests are "specialu sovereignty interests distinct from those interests at stake whenever individuals challenge a State's failure to pay benefits under a welfare program partially funded by the federal government. See e.g.( Marie O. v. Edgar, 131 F.3d 610, 61617 & n. 13 (7th Cir. 1997) (finding no important sovereignty interest in a suit bought under the Individuals with Disabilities in Education Act to enforce compliance with a federal program under which the state had accepted federal funds); J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1287 (10th Cir. 1999) (distinguishing Coeur d' Alene in a case challenging denial of Medicaid services, among other things); American Soc. of Consultant Pharmacists v. Patla, No. 00 C 7821, 2001 WL 197847, at *5 n.4 (N. D. Ill. Feb. 27, 2001) (distinguishing Ex parte Young because "it has been recognized that the Medicaid statute does not implicate such special historical sovereign interests of the states U ); Lewis v. New Mexico Dept. of Health, 94 F. Supp.2d 1217, 1232 (D.N.M. 2000) ("The state of New Mexico's interests in administering the waiver services at issue do not outweigh the 'interest in vindicating the federal rights and

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answering the federal questions' in this case"). The defendants have cited no cases in support of their proposition, and in view of the overwhelming case law to the contrary, we find that there are no special sovereignty interests here to preclude application of the Ex parte Young doctrine.
Finally, in a second supplement to their motion to dismiss, the defendants cite a recently decided case from the Eastern District of Michigan, Westside Mothers v. Haveman, -- F. Supp.2d --, 99-CV73442-DT, 2001 U.S. Dist. LEXIS 3422 (March 26, 2001, E.D. Mich.), and advance three new arguments to support their contention that Ex parte Young does not apply.'
In Westside Mothers, the plaintiffs alleged "systematic deprivation" of certain Medicaid services to children in the State of Michigan. Granting the defendants' motion to dismiss, Judge Cleland noted that the doctrine of Ex parte Young only contemplates that state officials may be ordered to comply with the "supreme law of the land," which does not include all federal laws. Federal laws passed pursuant to the Spending Clause - such as the Medicaid Act
Judge Cleland reasoned, are not supreme because the state's obligation to follow the law arises not from the law itself but from the state's voluntary participation in the federal-state program.
il The defendants do not explicitly advance more than three new arguments; rather, they simply summarize and quote extensively from Westside Mothers, concluding that this is simply additional authority for arguments they have made previously. Many of the sections they summarize and quote, however, support arguments they did not make. It is unclear whether they wish to incorporate by reference all of the arguments in Westside Mothers, or, as they state, simply to cite additional authority. We will take them at their word and focus only on
Westside Mothers to the extent the defendants clearly use it to advance new
arguments or to support a prior argument.

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While this is an interesting concept, we do not agree with the appraisal of laws passed pursuant to the Spending Clause as having inferior dignity to other laws. Certainly the Supreme Court has not articulated any such distinction; to the contrary, it has struck down state laws or regulations which violated a federal welfare statute, Aid to Families with Dependent Children, on the basis that such laws violated the Supremacy Clause. See Blum v. Bacon, 457 U.S. 132, 138 (1982); Car1eson v. Remillard, 406 U.S. 598, 600 (1972); Townsend v. Swank, 404 U.S. 282, 285-86 (1971). Like the Medicaid Act, the AFDC statute was a Spending Clause statute that did not require states to participate. Therefore, we decline to hold that Spending Clause statutes fall outside the ambit of the Supremacy Clause.
Defendants next argue that whatever the caption of this case, the State of Illinois is the real party in interest rather than the defendants, because what the plaintiffs really seek is to compel the state to perform its contract with the federal government. See Westside Mothers, 2001 U.S. Dist. LEXIS 3422 at *65-66 (stating that Ex parte Young recognized it is impermissible to sue a state for specific performance of a contract). This position, however, depends upon a finding that the state's relationship with the federal government under the Medicaid program is nothing more than a contract. As explained above, by seeking to enforce the Medicaid Act, the plaintiffs seek to enforce a federal law, not merely a contract. This is not a suit against officers acting lawfully, but against officers acting ultra vires in contravention of federal law.

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See Doe, 136 F.3d at 720 (finding that the Ex parte Young doctrine

applied where the plaintiffs sought to "enjoin state officials from

continuing to violate federal law, that is, the Medicaid Act U )

Finally, the defendants argue that federal courts may not

control a State officer's exercise of discretion under the Ex parte

Young doctrine. Id. at *75 (quoting from Ex parte Young: "the

[federal] court

can only direct affirmative action where the

officer having some duty to perform not involving discretion, but

merely ministerial in nature, refuses or neglects to take such action U). In Westside Mothers, the court noted that the Medicaid

Act does not tell the state how it must provide the services for

which it will receive federal funds; because it requires the

exercise of discretion, state officers cannot be compelled to act

in the way the plaintiffs insist. Id. at 76-77. The distinction

here, however, is that the defendants are not providing any

residential Medicaid services to the Medicaid-eligible plaintiffs.

In a case cited by the defendants, King by King v. Sullivan, the

court explained that "[t]he character and details of the state's

obligations arise from the commitments the state makes in its State

Plan, which, through the Medicaid Act and its regulations, binds the

state as a matter of federal law.U 776 F. Supp. 645, 648 (D.R.I.

1991) (emphasis added). Although it may be said that state officers

can exerci se discretion as to how to provide such services, it

cannot be said that they have the discretion to withhold altogether

services included in the State Plan. See Lewis, 94 F. Supp.2d at

1230 (citing the Tenth Circuit for the proposition that Ex parte

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Young "does not bar federal courts from reviewing discretionary acts that violate federal law") . Therefore, we reject the defendants' argument that because the state enjoys some discretion in determining how it will provide Medicaid services, its officers are immune from a challenge based on their total withholding of residential medicaid services to the eligible plaintiffs.
B. Americans with Disabi1ities Act C1aim In a related vein, the defendants argue that the plaintiffs'
ADA claim must be dismissed pursuant to the Seventh Circuit's holding in Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000), cert. denied, 121 S.Ct. 1188 (2001). In that case, the Seventh Circuit noted its prior holding that actions based on Title II of the ADA were precluded by the Eleventh Amendment. Id. at 347. Noting that Title II prohibits discrimination by any "public entity," the court held that the proper defendant cannot be an individual, but must be the public entity. Id. at 346 (stating that Titles I and II are similar in that they both prohibit imposition of personal liability). The court concluded that the Ex parte Young doctrine that the defendant is the state official rather than the state itself - is inapplicable to Title II cases. Id. at 347. This holding bars the plaintiffs' ADA claim, which is accordingly dismissed. 5
21 The recent Supreme Court case Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. -, 121 S.Ct. 955 (2001) appears relevant to the Seventh Circuit's holding. In Garrett, the Supreme Court held that suits against states based on Title I of the ADA are barred by the Eleventh Amendment. However, in dicta, Chief Justice Rehnquist specifically noted that Title I of the ADA could

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II. § 1983 Claims
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subj ected any citi zen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured
42 U.S.C. § 1983. The defendants make several arguments for
dismissal of the claims brought pursuant to § 1983, which we address
seriatim.
A. Dismissal of Defendants Under § 1983
The defendants argue that all claims must be dismissed against
them because "official-capacity" suits against state officials are
suits against the state itself. Therefore, state officials who have
been sued in their "official capacity" are not "persons" amenable
to suit under 42 U.S.C. § 1983. In support of this proposition,
they cite Will v. Michigan Dept. of State Police, 491 U.S. 58
(1989) .
The defendants' argument and citation to this authority is
curious because Will excludes from its broad rule suits filed
against state officers for injunctive relief.
Of course a state official in his or her official capacity, when sued for inj unctive relief, would be a person under § 1983 because "official-capacity actions
still be enforced by private individuals in actions for injunctive relief under the Ex parte Young doctrine. Id., 121 S.Ct. at 968 & n.9. To the extent the Seventh Circuit's reasoning as to the unavailability of Young in Title I cases mirrors the reasoning for its unavailability in Title II cases, its position may have been called into question. Nevertheless, we are bound by the Seventh Circuit's holding in Walker.

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for prospective relief are not treated as actions against the State." Kentucky v. Graham, 473 U.S. [159,] at 167, n. 14 (1985); Ex parte Young, 209 U.S. 123, 159-160 ... (1908) . Id. at 71 n. 10. This being a suit solely for injunctive relief, we reject the defendants' claim. Next, defendants argue that Governor Ryan must be dismissed from the suit because the plaintiffs failed to plead any connection between Ryan and the enforcement of the Medicaid Act. Given the liberal standards of pleading under Federal Rule of Civil Procedure 8, the plaintiff does not have to plead the particular duties in order to survive a motion to dismiss. Currently, the extent of Governor Ryan's duties "in the context of the intertwined provisions of federal law is unclear to the court." See Rolland v. Cellucci, 52 F. Supp. 2d 231, 243 (D. Mass. 1999) (refusing to dismiss the Governor) . Because at this stage "the plaintiff receives the benefit of imagination," Sanjuan v. American Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994), it would be inappropriate to dismiss the claim against Governor Ryan.
B. Dismissal of Claims Brought Under Spending Clause Statutes
The defendants next argue that the plaintiffs' claims under the Medicaid Act and under the Rehabilitation Act must be dismissed because they seek to enforce isolated violations of the State Plan. In Mallett v. Wis. Div. of Vocational Rehabilitation, the Seventh Circuit reviewed the circumstances under which a plaintiff may use § 1983 in connection with laws passed pursuant to the Spending

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Clause. 130 F.3d 1245, 1253 (7th Cir. 1997) (discussing in

particular Wilder v. Virginia Hosp. Assn., 496 U.S. 498 (1990) and

Suter v. Artist M., 503 U.S. 347 (1992)). The threshold question

is whether the plaintiffs claim that the State Plan itself violates

federal law, or whether they simply assert that the defendants have

failed to comply with the requirements of a lawful State Plan. Id.

(stating that the next step is to consider whether there is an

enforceable right under § 1983).

Mallett provides an illustration of the distinction. There,

the plaintiff brought suit under the Rehabilitation Act ("RA")

seeking payment of his graduate school expenses. He alleged that

Wisconsin's plan discouraged graduate education in favor of

vocational training, which violated the RA's mandate requiring

states to provide "highly individualized services to each

beneficiary."

The court found this allegation sufficient

because it was a challenge to the legality of the plan itself.

However, the plaintiff's claims that the defendant did not follow

the correct procedures when it closed his file were not sufficient,

because these were challenges to the implementation of the state's

plan.

Here we find that the plaintiffs are not suing merely to

correct procedural deficiencies in the handling of their cases; nor

do they contend that the State Plan is lawful but flawed in its

implementation. Instead, they argue that Illinois does not have a

plan for providing "medical assistance ... with reasonable promptness

to all eligible individuals," 42 U.S.C. § l396a(a) (8), who are

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developmentally disabled. 6 For example, Illinois does not maintain a waiting list for the services plaintiffs seek. Thus, plaintiffs found eligible for residential Medicaid services as many as seven. years ago simply linger, waiting even to be told whether or when they will receive such services.' This presents the same type of question the Seventh Circuit found sufficient in Mallett: whether this policy prevents the state from adopting a plan that complies with a direct obligation imposed by the Medicaid Act. s
Next, the defendants argue that at the time of § 1983' s enactment, third-party beneficiaries of a contract could not sue for its breach. Therefore, § 1983 confers no right for beneficiaries of federal programs enacted pursuant to the Spending Clause to sue government officers for failing to provide the benefits sought. In support of this conclusion, the defendants cite Justice Scalia's concurrence in Blessing v. Freestone, 520 U.S. 329, 349 (1997). However, Justice Scalia stopped short of endorsing this argument, stating that the issue was not before the court in Blessing and he

&/

The plaintiffs further allege this violates the RA's anti-

discrimination mandate and the requirement that handicapped individuals be placed

in the most integrated setting appropriate. See 28 C.F.R. § 41.S1(d).

2/ The defendants' argument that these are allegations of isolated violations of a legal plan is, therefore, unpersuasive. It is further belied by their own policy defense: that although there are currently open slots for the waiver services plaintiffs seek, the "State uses open waiver slots for emergency situations such as when a parent or guardian of a disabled adult dies or himself becomes disabled." Mem. in Support of Dismissal, pp. 4 & n.l, 14.

~I This is not a case, as in Suter, where Congress left it entirely up to the states to define the contents of the provision at issue. See Suter, 503 U.S. at 359-60 (noting that the term "reasonable efforts" was "left up to the State," and distinguishing Wilder, in which the term "reasonable rates" was subject to federal regulations which provided a great deal of guidance). Here, federal regulations provide guidance as to what time period is sufficiently "prompt" to meet the requirements of the Medicaid Act. See infra II.C. (discussing the various federal regulations).

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was not prepared to negate this argument. Id. at 349-50. The defendants also quote from Westside Mothers in support of this argument. 2001 U.S. Dist. LEXIS 3422 at *99. But Westside Mothers itself recognized that there is authority to support the argument that third-party beneficiaries could sue for breach of contract in 1871. Id. at *94 (noting that the Westside Mothers plaintiffs cited Corbin on Contracts and Williston's Treatise on the Law of Contracts) . We decline to depart from the long line of cases allowing plaintiffs to use § 1983 to enforce rights under federal Spending Clause statutes.
c. Whether the Medicaid Act Provides an Enforceable Right
Under § 1983 The defendants argue that the plaintiffs have no entitlement to waiver services and have no enforceable right to waiver services pursuant to § 1983. Although the plaintiffs' request for relief states that they seek "the full range of ICF/MR services or home and community-based waiver services and other services for which they are eligible," Am. compl. p. 23, the defendants apparently believe that the plaintiffs truly seek waiver services rather than ICF/MR services. See Reply at p. 2, n.2. Accordingly, their briefs focus on the plaintiffs' claims for waiver services, and they appear not to challenge the plaintiffs' argument that they have enforceable rights to ICF/MR services under § 1983. Therefore, we decline to dismiss Count I to the extent it seeks ICF/MR services, and this

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section will focus only on the plaintiffs' claims for waiver services.
In Maine v. Thiboutot, 448 U.S. 1 (1980), the Supreme Court established that § 1983 was available to remedy violations of the Constitution and federal statutes by state and local governments. Id. at 4. Section 1983, however, is not available to remedy every violation of federal law, but only those laws that create "rights, privileges, or immunities." Mallett, 130 F.3d at 1251. There are three factors to consider in determining whether a particular statutory provision gives rise to a federal right: (1) whether Congress intended the provision to benefit the plaintiffs; (2) whether the right "is not so 'vague and amorphous' that its enforcement would strain judicial competence," and (3) whether the provision unambiguously imposes a binding obligation on the states. Blessing, 520 U.S. at 340-41; Wilder, 496 U.S. at 509 (determining that health care provider plaintiffs had an enforceable right under § 1983 to be reimbursed "reasonable and adequate" rates by the states for the services they provided) .
The plaintiffs assert that two sections of the Medicaid Act, 42 U.S.C. § 1396a(a) (8) and § 1396n(c) (1), may be enforced through § 1983. Section 1396a(a) (8) provides, in pertinent part:
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. 42 U.S.C. § 1396a(a) (8). The Medicaid Act states that "medical assistance" can include paymen·t of "home or community-based

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services" if a waiver is approved. 42 U.S.C. § 1396n(c) (1).9 Illinois having obtained such a waiver and the plaintiffs having been found eligible for waiver services, we have no trouble concluding that the plaintiffs are the intended beneficiaries. See Lewis v. New Mexico Dept. of Health, 94 F. Supp.2d 1217, 1233-34 (D.N.M. 2000); see also Boulet v. Cellucci, 107 F. Supp.2d 61, 72, 78 (D. Mass. 2000) (finding that § 1396a (a) (8) applies to home and community-based waivers services).
We also believe that the "reasonable promptness" requirement is not so "vague or amorphous tha't enforcement would strain judicial competence." Here the applicable regulations provide guidance on acceptable time frames. See 42 C.F.R. § 435.911(a) (stating that the time frame to determine disabled individuals' eligibility for Medicaid services may not exceed ninety days); 42 C.F.R. 435.930(a) (stating that state agencies should furnish Medicaid "without any delay caused by the agency's administrative procedures"); 42 C.F.R. § 435.911 (e) (1) (prohibiting the agency from using "the time standards" as a "waiting period"). Where federal regulations provide guidance in interpreting a statutory provision, courts are less inclined to find the "reasonableness" requirement too vague for enforcement. Boulet, 107 F. Supp.2d at 72 (citing cases). Moreover, some courts have observed that even if a time period is not specifically mentioned, delays of several years could be considered "far outside the realm of reasonableness." Doe, 136 F. 3d
11 Also, § 1396d(a) (15) defines "medical assistance" to include ICF/MR services.

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at 717; see also Lewis, 94 F. Supp. 2d at 1235-36 (quoting from Wilder, 496 u.s. at 519-20, that "[w]hi1e there may be a range of reasonable rates [to compensate health care providers], there are certainly some rates outside that range that no State could ever find to be reasonable ff ).
In making the final determination as to whether the provision at issue imposes a binding obligation on the states, we assess whether the provision is stated in mandatory or precatory terms. See Blessing, 520 u.S. at 341. Here, § 1396a (a) (8) states that medical assistance "shall ff be furnished with reasonable promptness. This imposes a binding obligation on Illinois, since it elected to provide the waiver services plaintiffs seek. See Tallahassee Mem'l Reg'l Med. Ctc v. Cook, 109 F.3d 693, 698 (11th Cir. 1997) (per curiam) ("[W]hen a state elects to provide an optional service, that service becomes part of the state Medicaid plan and is subject to the requirements of federal law. ff ). See also Doe, 136 F.3d at 718 (stating that a state's receipt of Medicaid funds is conditioned on its compliance with the provisions of § 1396a). In sum, we hold that the plaintiffs have articulated a federal right to reasonably prompt provision of medical assistance under § 1396a(a) (8) and that this right is enforceable under § 1983. See Lewis, 94 F. Supp.2d at 1236 (refusing to dismiss the plaintiffs' § 1983 claims for home and community-based waiver services under the Medicaid Act); Boulet, 107 F. Supp.2d at 73; see also Doe, 136 F.3d at 718 (holding that

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the plaintiffs had a federal right to reasonably prompt provision
of medical assistance (ICF/MR services) under § 1983) .'0
The defendants argue that there is no right to such services for three reasons: first, federal law imposes a cap on the services; second, federal law prohibits the waiver program if it would result in a higher per capita cost to provide CILA services than to provide institutional care; and third, there has been a waiver of the comparability requirement, which means that the state need not provide the same level of waiver services to each plaintiff. We reject all three arguments because all depend on findings of fact that could not be made on this motion to dismiss.
As to the first argument, the defendants themselves admit that although a cap is in place, 150 slots are still open and available. The defendants argue that those slots must remain open pursuant to a consent decree (they do not say how many must remain open) and also because they need to keep such placements available for individuals who have greater need than the plaintiffs - for example, individuals whose care-givers die, become disabled themselves, or are abusive. This may be true, but these are matters of fact which we do not consider at this time. In a similar case, Boulet v. Cellucci, the court found that individuals who are eligible for
III The defendants cite one case to the contrary: Cook v. Hairston, No. 903437, 1991 WL 253302 (6th Cir. Nov. 26, 1991). Apart from being an unpublished opinion, this case bears little similarity to the one at bar. In that case, the plaintiffs lost Medicaid benefits when their authorized representatives failed to respond to communications from the county agency processing Medicaid applications. Id. at *1. The court determined that §§ 1396a(a) (8) and (19) were not sufficiently specific to require that the state guarantee nursing home residents benefits for which they were eligible. Id. at *5.

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services and who are below the state's cap are entitled to those services. 107 F. Supp.2d at 77.
The defendants' second argument would also require us to delve into the facts and make findings about the relative cost of ClLA services and institutional services.
The defendants' third argument focuses on the plaintiffs' request for "the full range of lCF/MR services or home and community-based waiver services." They argue that this court cannot grant persons who are already receiving waiver services the additional services for which they are waiting because the Medicaid Act's comparability requirement -- that individuals who need the same level of care must receive the same level of services -- does not apply to waiver services." This argument is somewhat puzzling because neither the Amended complaint nor the Response state that the plaintiffs are receiving any waiver services; in fact, the Response specifically points out that the current funding for the plaintiffs' day program placement is funded by sources other than Medicaid. Moreover, the defendants do not contend that this applies to the plaintiffs claims for non-waiver services (lCF/MR services) for which they are still waiting. We decline to find, therefore, that the waiver of the comparability requirement warrants dismissal of the plaintiffs' claims for waiver and non-waiver services.
111 The comparability requirement states that Medicaid services "shall not be less in amount, duration or scope than the medical assistance made available to any other such individual." 42 U.S.C. § 1396a(a) (10) (B) (i). This requirement may be waived! however, when a state elects to operate a waiver program.

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Having found that there is an enforceable right under § 1396a(a) (8), it is unnecessary to decide whether the plaintiffs also have an enforceable right under § 1396n(c) (2) (C). III. Rehabilitation Act
Section 504 of the Rehabilitation Act states in pertinent part: No otherwise qualified individual with a disability shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 29 U.S.C. § 794(a) (West Supp. 2000). The defendants argue that the plaintiff's claim based on the Rehabilitation Act ("RA") must be dismissed because the plaintiffs' have failed to plead the elements of an RA violation. As the Seventh Circuit noted in Mallett, 130 F.3d at 1257, two of the key elements are that the plaintiff be "otherwise qualified" to participate in the program at issue, and that the plaintiff have been denied benefits solely because of a handicap. The defendants assert that the plaintiffs' claim must fail because they cannot show that they would have received the services if they were not handicapped, and moreover, they cannot show that other non-handicapped individuals received these services. The plaintiffs respond that their claim, brought under § 1983, is that the State has violated the RA's mandate that individuals with disabilities be placed in the least restrictive setting available. See 28 C.F.R. § 41.51(d); see also Makin exrel. Russell v. Hawaii, 114 F. Supp. 2d 10l7, 1036 (D.C. Haw. 1999) (discussing the RA's integration mandate). In Mallett, as discussed above, a

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disabled individual who had been denied payment for graduate school education brought a § 1983 claim alleging violations of Title I of the RA. The Seventh Circuit determined that he could not enforce his Title I claim under § 504 of the RA, in part because he could not show that he would be entitled to such benefits absent his handicap. Id. at 1257. However, this type of individualized discrimination claim is distinct from a § 1983 claim that a state's plan "does not satisfy a mandatory provision the federal statute requires as a condition for receiving federal funds." Id. at 1256. This latter type of claim Mallett clearly allowed. Id. at 1256-57. Having determined that the plaintiff properly challenged Wisconsin's policy, the Mallett court moved on to consider whether the RA created an enforceable right under the framework set forth by the Supreme Court in Wilder. Id. at 1253-54.
The defendants do not argue that this claim fails to meet the requirements of Blessing or Wilder, so we will not engage in an independent analysis of this issue. We deny the defendants' motion to dismiss Count IV. IV. Equal Protection
In City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432 (1985), the Supreme Court determined that the correct standard to assess an equal protection claim brought by mentally retarded individuals is a "rational basis" standard, that is, whether the State's law is rationally related to a legitimate government purpose. The defendants argue that the plaintiffs' equal protection claim should be dismissed because there is a rational basis for

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allowing some developmentally disabled individuals to receive waiver services while others do not: some individuals face a greater need for such services when their care-givers die, become disabled themselves, or become abusive. We are inclined to agree that such a reason would be rational. However, this is a factual question, not a legal question we can address on a motion to dismiss. Therefore, we deny the defendants' motion to dismiss Count V.
V. Due Process The plaintiffs argue that their rights to due process were
violated because they were not afforded an opportunity for a fair hearing when their claims for services were not acted upon with reasonable promptness. The defendants argue that this claim should be dismissed because the plaintiffs possess neither a property nor a liberty interest that triggers the protection of the due process clause. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972). Furthermore, the defendants argue that there are administrative procedures in place to challenge the state's failure to provide the Medicaid services plaintiffs seek, and the plaintiffs do not challenge the fairness of those procedures.
As to the first argument, we believe the plaintiffs do have a property interest in Medicaid services for which they have applied and have been deemed eligible. "Applicants who have met the objective eligibility criteria of a wide variety of governmental programs have been held to be entitled to protection under the due process clause. H Holbrook v. Pitt, 643 F.2d 1261, 1278 n. 35 (7th

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Cir. 1981) (citing cases finding that applicants for general

assistance, AFDC, public housing, and other benefits have due

process protection). We hold that applicants who are eligible for

Medicaid services have a property interest that triggers due process

protection. See Lewis, 94 F. Supp.2d at 1237 (finding that

plaintiffs who applied for home and community-based waiver services

had a property interest) .

The defendants argue that Illinois has appellate procedures in

place for those who wish to challenge the failure of the DHS to

provide home and community-based services. See 59 Ill. Admin. Code,

Chapter I, part 120.110 (a) ("The individual

may appeal the

following actions: ... (2) Failure to act on a request for services

within the mandated time period") We note that this point was

raised only in the defendants' reply brief, and the plaintiffs did

not have an opportunity to respond to this argument.

We have examined the portions of the Code that refer to an

individual's right to appeal, but it is not clear that these would

apply to the circumstances presented in this case. For example,

Part 120.100(d) states that individuals applying for services "have

a right to written notice of disposition of the request" and that

"[sluch notice must be mailed at least 10 calendar days prior to the

effective date of the action." Part 120.110(b) apparently

contemplates that an individual's right to appeal is triggered by

receipt of "the notice of action." Here, however, the plaintiffs

claim that they have never been told whether or not they will

receive the services. See Am. Comp1., ~~ 5(g), 6(g), 7(g), 8(g),

Case: 1:00-cv-05392 Document #: 34 Filed: 05/01/01 Page 30 of 30 PageID #:60
-.
- 29 -
9 (g) ("the DHS/ODD has not informed [plaintiffs] or [their] parents when or if he [or she] will receive residential Medicaid services at any time in the forseeable future") _ This may be because there
,
is no "action" when the DHS receives requests from eligible individuals to whom it chooses not to provide services because of policy reasons_ Whatever the reason, any effort of the plaintiffs to appeal would be problematic, at best, because the Administrative Code does not appear to contemplate an appeal in the circumstances faced by these plaintiffs_
Therefore, we decline to dismiss the plaintiffs' due process claim (Count 11)_

CONCLUSION For the reasons discussed above, we grant the defendants' motion to dismiss the plaintiffs' ADA claim (Count III), but deny the motion as to Counts I, II, IV, and V. Further, this court orders that the parties make all of the initial disclosures set forth under Federal Rule of Civil Procedure 26(a) (1) within 14 days of receipt of this opinion. A status hearing is scheduled for May 30, 2001, at 9:30 a.m.

Date:

May 1, 2001

ENTER:

Judge

 
 C-as-e: -1:0-0--cv--05-39-2 D_ocu...m._.e__n.t_#-: 60 Filed: 08/21/01 Page 1 of 4 PageID #:108

/c-

c.•

.\linU!~ Ord~r Form (06/97)

"-:;~

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge

John F. Grady

Sitting Judge if Other than Assigned Judge

CASE NUMBER

00 C 5392

DATE

August 21, 2001

CASE TITLE
MOTION:

Boudreau, et al. v. Ryan, et al. (consolidated with White v. Patla - 01 C 806)
[In the followmg box (a) mdicate the party filing the motlOn, e.g., plamtlff, defendant, 3rd party plaintIff, and (b) state briefly the nature of the motion being presented.]

c.~

DOCKET ENTRY:

(1)

o

Filed motion of [ use listing in "Motion" box above.]

(2)

o

Brief in support of motion due ___.

(3)

o

Answer brief to motion due

Reply to answer brief due___ .

(4) o

Ruling/Hearing on ___ set for ___ at ___.

(5)

o

Status hearing[held/continued to] [set for/re-set for] on ___ set for ___ at _ __

(6) o

Pretrial conference[held/continued to] [set for/re-set for] on ___ set for ___ at _ __

(7) o

Trial[set forlre-set for] on ___ at ___.

(8)

o

[Bench/Jury trial] [Hearing] held/continued to ___ at ___.

(9) o

This case is dismissed [with/without] prejudice and without costs[by/agreementlpursuant to]
o FRCP4(m) 0 General Rule 21 0 FRCP41(a)(l) 0 FRCP41(a)(2).

":'

• (10)

[Other docket entry Enter Protective Order.

(11)

x [For further detail see order (on reverse side of/attached to) the original minute ardeLl

r--
r--
~
r-r-r--

No notices required, advised in open court. No notices required. Notices MAILED by judge's staff. Notified counsel by telephone. Docketing to mail notices. Mail AO 450 form. Copy to

KAM

courtroom deputy's initials

. ;.:- (
I.., r Ui.<;rU: lli-:G
'j we 23 Pi"l 5: 17
Date/time received in central Clerk's Office (Reserved for use by the Court)

number of notices
CIIJG 2 4 20111,
dale docketed
~
do~keting deputy initials
8/23101 date mailed notice
KAM
mailing deputy initials

Document Number

Case: 1:00-cv-05392 Document #: 60 Filed: 08/21/01 Page 2 of 4 PageID #:109

00-5392.013-MEV

August 21, 2001

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

EDWARD BOUDREAU, by and through

)

his parents, Edwin and Ann

)

Boudreau, BRIAN BRUGGEMAN, by and )

through his parents Kenneth and

)

Carol Bruggeman, FRANCES CORSELLO, )

by and through her parents,

)

Vincent and Agnes Corsello, ANGELA )

MOORE, by and through her parents, )

James and Brenda Moore, LINDA

)

SEMPREVIVO, by and through her

)

parents, Richard and Ruth Ann

)

Semprevivo, individually and on

)

behalf of a class,

)

)

Plaintiffs,

)

) .

v.

)

)

GEORGE H. RYAN, in his official

)

capacity as Governor of the State )

of Illinois, ANN PATLA, in her

)

official capacity as Director of )

the Illinois Department of Public )

Aid, LINDA RENEE BAKER, in her

)

official ~a~acity as Secretary of )

the Illinois Department of Human )

Services, MELISSA WRIGHT, in her )

official capacity as Associate

)

Director of the Office of

)

Developmental Disabilities,

)

)

Defendants.

)

No. 00 C 5392

PROTECTIVE ORDER

Pursuant to Federal Rule of Civil Procedure 26(c), this Court orders as follows:
1. The identity of any non-party claiming to be developmentally disabled and seeking Medicaid services shall remain confidential and shall only be used in this litigation.

fd:

.

Case: 1:00-cv-05392 Document #: 60 Filed: 08/21/01 Page 3 of 4 PageID #:110 •

- 2-
Any court filings will refer to a non-party disabled person by the initials of her first and last name.
2. The Pre-Admission Screening agencies and Service Providers shall comply with the subpoenas issued by Plaintiffs' attorney, Robert H. Farley, Jr.; however no documents shall be produced which contain personally identifiable data relating to a developmentally disabled person seeking Medicaid services. If a document contains personally identifiable data, that identifiable data shall be redacted from the document.
3. If any Pre-Admission Screening Agency or Service Provider needs additional time to comply with the subpoena, then said agency or provider shall notify Plaintiffs' counsel of the estimated time required to comply with the subpoena. If any PreAdmission Screening agency or Service Provider seeks to be reimbursed for the expense associated with compliance with the subpoena, then prior to·said production, such agency or provider shall furnish to Plaintiffs' counsel a statement of probable expense, and Plaintiffs' counsel then shall notify said agency or provider whether the production is still requested, and if so, that Plaintiffs' counsel agrees to pay a reasonable expense for production.
4. This Order is subject to modification for good cause shown.

• "-

Case: 1:00-cv-05392 Document #: 6,_ 0 _ Fi_ led_ : 0_ 8_ /21_ /0_ 1 Page 4 of 4 Ilr..'_ _ _ _ _ Pa_ ge_ ID_ #:_ 11_ 1 _ _ _ _ __

DATE: ENTER:

- 3-
August 21, 2001

F. Grady, United States Dis

udge

 
 IN THE UNITED STATES DISTRICT COURT
FOR mE NORTHERN DISTRICT OF n..LINOIS

EASTERN DIVISION

EDWARD BOUDREAU, by and through his parents, Edwin and Ann Boudreau, BRIAN

)OOC 5392

BRUGGEMAN, by and through his parents,

) ~

Kenneth and Carol Bruggeman, FRANCES

)

CORSELLO, by and through her parents,

)

Vincent and Agnes Corsello, ANGELA MOORE, )

by and through her parents, James and Brenda )

Moore, LINDA SEMPREVIVO, by and through )

JUDGE GRADY

t~"iCO
~l;:~:,' ~~

her parents, Richard and Ruth AnnSemprevivo, M~)GlSTRATE JUDGE DENLOWt:::,:::;~ ~:l

Plaintiffs,

)

No. ..

"." , > "

(/'")

vs.

l) JUDGE

xy 'B

GEORGE H. RYAN, in his official capacity as )

Governor ofthe State of Illinois, ANN PATLA, )

in her official capacity as Director ofthe Illinois )

Department of Public Aid, LINDA RENEE

)

BAKER, in her official capacity as Secretary

)

of the Illinois Department ofHuman Services,

)

MELISSA WRIGHT, in her official capacity

)

as Associate Director of the Office of

)

Developmental Disabilities,

)

)

Defendants.

)

MAGISTRATE

\
DOCKETED
SEP - 5 2000

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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

complains of the Defendants as follows:

INTRODUCTION

1. This is a complaint on behalf offive (5) persons who are mentally retarded and

developmentally disabled and who have been determined by Suburban Access, Inc., a Pre-

1

Admission Screening Agency ("PAS") to be eligible to receive Medicaid services, but who have not received such services. The Plaintiffs seek 24 hour per day residential Medicaid services in an appropriate community based setting.
2. The Plaintiffs are unable to care fully for themselves and require a range of care and treatment, from non-residential assistance with rehabilitative and vocational needs to full-time residential support services to assist them with the most basic aspects of daily life such as toileting, eating, and bathing. As the Plaintiffs fail to receive the services which they are entitled
to under the law, they suffer physical and emotional setback and fail to develop to their fullest
potential. 3. The Defendants failure to provide Medicaid services to the Plaintiffs with "reasonable
promptness" violates Plaintiffs' rights conferred by the Medicaid Act, 42 U.S.C. Sec. 1396(a) and implementing regulations; the American with Disabilities Act (ADA), 42 U.S.C. Sec. 1201 et. seq. and implementing regulations; the Rehabilitation Act, 29 U.S.C. 794 and implementing regulatoins, as well as their federal constitutional rights to Due Process and Equal Protection. Plaintiffs bring this action pursuant to 42 U.S.c. Section 1983 to enforce their federal statutory and constitutional rights. They seek declaratory and injunctive relief to redress defendant's violation of the Medicaid Act, the ADA, the Rehabilitation Act and the federal constitution and to ensure that the receive the medical assistance and care to which they are entitled.
2

JURISDICTION & VENUE
4. This Court has jurisdiction over plaintiffs' federal law claims pursuant to 28 U.S.c. Sections 1331 and 1343. Venue is proper under 28 U.S.c. Sec. 1391(b).
PARTIES 5. The Plaintiff, Edward Boudreau, is 43 years old and lives with his parents, Edwin and Anne Boudreau. The family are residents of South Chicago Heights, Illinois.
(a) Edward Boudreau has profound mental retardation. Edward Boudreau has a substantial functional limitation in self-care; learning; self-direction; mobility; language; and capacity for independent living. Mr. Boudreau needs continual support and supervision throughout his life.
(b) Edward Boudreau currently attends a day program at SouthStar Services. (c) Edward Boudreau is Medicaid eligible and was found by Suburban Access, Inc. on November 17, 1994 to be eligible for medicaid waiver funding; eligible for community integrated living arrangement (elLA); and eligible for intermediate care facility/ developmentally disabled level ofcare funding. (d) Edward Boudreau seeks 24 hour per day residential medicaid services in an appropriate community based setting. (e) SouthStar Services provides residential medicaid services and offered to provide residential medicaid services to Edward Boudreau subject to Brian Boudreau obtaining funding from the Illinois Department of Human Services / Office ofDevelopmental Disability. (DRS/ODD). (t) On August 14,2000, the PlaintiffBourdreau requested that DBS/ODD
3

approve funding for himself to receive residential Medicaid services from SouthStar services. (g) DRS!ODD has not informed Plaintiff or his parents when or ifhe will receive
residential Medicaid services at any time in the foreseeable future. (h) Plaintiff is entitled to Medicaid services with reasonable promptness. (i) As the result of the failure ofDRS/ODD to provide residential Medicaid
services to Plaintiff, the Plaintiff Bourdeau is not receiving the therapies, training and other active treatment to which he is entitled by virtue of his eligibility for Medicaid services.
6. The Plaintiff: Brian Bruggeman is 33 years old and lives with his parents, Kenneth and Carol Bruggeman. The family are residents of Homewood, Illinois.
(a) Brian Bruggeman has mild mental retardation and Down's syndrome. Brian Bruggeman has a substantial functional limitation in self-care; learning; self-direction; language; and capacity for independent living. Brian Bruggeman needs continual support and supervision throughout his life.
(b) Brian Bruggeman currently attends a day program at SouthStar Services. (c) Brian Bruggeman is Medicaid eligible and was found by Suburban Access, Inc. on September 9, 1994 to be eligible for medicaid waiver funding; eligible for community integrated living arrangement (eILA); and eligible for intermediate care facility! developmentally disabled level of care funding. (d) Brian Bruggeman seeks 24 hour per day residential medicaid services in an appropriate community based setting. (e) SouthStar Services provides residential medicaid services and offered to provide residential medicaid services to Brian Bruggeman subject to Brian Bruggeman obtaining
4

funding from the Illinois Department ofHuman Services I Office ofDevelopmental Disability. (f) On August 14,2000, the PlaintiffBruggeman requested that DRS/ODD
approve funding for himself to receive residential Medicaid services from SouthStar services. (g) DRS/ODD has not informed Plaintiffor his parents when or if he will receive
residential Medicaid services at any time in the foreseeable future. (h) Plaintiff is entitled to Medicaid services with reasonable promptness. (i) As the result of the failure ofDHS/ODD to provide residential Medicaid
services to Plaintiff, the Plaintiff Bruggeman is not receiving the therapies, training and other active treatment to which he is entitled by virtue of his eligibility for Medicaid services.
7. The Plaintiff, Frances Corsello, is 49 years old and lives with her parents, Vincent and Agnes Corsello. The family are residents ofHomewood, Illinois.
(a) Frances Corsello has mild mental retardation. Frances Corsello has a substantial functional limitation in self-care; learning; self-direction; language and capacity for independent living. Frances Corsello requires on-going support and supervision throughout her life.
(b) Frances Corsello currently attends a day program at SouthStar Services. (c) Frances Corsello is Medicaid eligible and was found by Suburban Access, Inc. on August 7, 2000 to be eligible for medicaid waiver funding; eligible for community integrated living arrangement (ClLA); and eligible for intermediate care facility! developmentally disabled level of care funding. (d) Frances Corsello seeks 24 hour per day residential medicaid services in an appropriate community based setting.
5

(e) SouthStar Services provides residential medicaid services and offered to provide residential medicaid services to Frances Corsello subject to Frances Corsello obtaining funding from the lllinois Department ofHuman Services I Office ofDevelopmental Disability.
(t) On August 14,2000, the Plaintiff Corsello requested that DHS/ODD approve funding for himself to receive residential Medicaid services from SouthStar services.
(g) DHS/ODD has not informed Plaintiff or her parents when or if she will receive residential Medicaid services at any time in the foreseeable future.
(h) Plaintiffis entitled to Medicaid services with reasonable promptness. (i) As the result ofthe failure ofDHS/ODD to provide residential Medicaid services to Plaintiff, the Plaintiff Corsello is not receiving the therapies, training and other active treatment to which she is entitled by virtue ofher eligibility for Medicaid services. 8. The Plaintiff, Angela Moore, is 29 years old and lives with her parents, James and Brenda Moore. The family are residents of Chicago Heights, lllinois. (a) Angela Moore has severe mental retardation. Angela Moore has a substantial functional limitation in self-care; learning; self-direction; mobility; language; and capacity for independent living. Angela Moore needs continual support and supervision throughout her life. (b) Angela Moore currently attends a day program at SouthStar Services. (c) Angela Moore is Medicaid eligible and was found by Suburban Access, Inc. on September 18, 1998 to be eligible for medicaid waiver funding; eligible for community integrated living arrangement (CILA); and eligible for intermediate care facility/ developmentally disabled level ofcare funding. (d) Angela Moore seeks 24 hour per day residential medicaid services in an
6

appropriate community based setting. (e) SouthStar Services provides residential medicaid services and offered to
provide residential medicaid services to Angela Moore subject to Angela Moore obtaining funding from the Illinois Department ofHuman Services / Office of Developmental Disability.
(f) On August 14,2000, the PlaintiffMoore requested that DRS/ODD approve funding for her to receive residential Medicaid services from SouthStar services.
(g) DHS/ODD has not informed Plaintiff or her parents when or if she will receive residential Medicaid services at any time in the foreseeable future.
(h) Plaintiff is entitled to Medicaid services with reasonable promptness. (i) As the result of the failure ofDHS/ODD to provide residential Medicaid services to PlaintUI: the Plaintiff Moore is not receiving the therapies, training and other active treatment to which she is entitled by virtue of her eligibility for Medicaid services. 9. The Plaintiff, Linda Semprevivo, is 37 years old and lives with her parents, Richard and Ruth Ann Semprevivo. The family are residents ofChicago Heights, TIlinois. (a) Linda Semprevivo has severe mental retardation. Linda Semprevivo has a substantial functional limitation in self-care; learning; self-direction; language; and capacity for independent living. Linda Semprevivo needs continual support and supervision throughout her life. (b) Linda Semprevivo currently attends a day program at SouthStar Services. (c) Linda Semprevivo is Medicaid eligible and was found by Suburban Access, Inc. on June 23,2000 to be eligible for medicaid waiver funding; eligible for community integrated living arrangement (elLA); and eligible for intennediate care facility/ developmentally disabled
7

level of care funding. (d) Linda Semprevivo seeks 24 hour per day residential medicaid services in an
appropriate community based setting. (e) SouthStar Services provides residential medicaid services and offered to
provide residential medicaid services to Linda Semprevivo subject to Linda Semprevivo obtaining funding from the Illinois Department ofHuman Services / Office of Developmental Disability.
(t) On August 14,2000, the Plaintiff Semprevivo requested that DHS/ODD approve funding for her to receive residential Medicaid services from SouthStar services.
(g) DRS/ODD has not informed Plaintiff or her parents when or if she will receive residential Medicaid services at any time in the foreseeable future.
(h) Plaintiff is entitled to Medicaid services with reasonable promptness. (i) As the result of the failure ofDHS/ODD to provide residential Medicaid services to Plaintiff, the Plaintiff Semprevivo is not receiving the therapies, training and other active treatment to which she is entitled by virtue of her eligibility for Medicaid services. 10. Defendant George H. Ryan is the Governor ofthe State ofIlIinois and is being sued in his official capacity. His office is responsible for ensuring that the agencies of the State's Executive Branch, including the Illinois Department ofHuman Services (DRS) and the Illinois Department ofPublic Aid (DPA), act in compliance with the Constitution and the laws of the United States. 11 Defendant Ann Patla is the Director ofthe Illinois Department of Public Aid (DPA) and is being sued in her official cap~city. The DPA is the designated Medical Assistance Single
I
State Agency and is responsible for the oversight and the administration ofthe Medicaid program
8

under Title XIX of the Social Security Act, which includes programs for persons with mental retardation or developmental disabilities.
12. Defendant Linda Renee Baker, as Secretary ofthe Illinois Department ofRuman Services (DRS) is being sue in her official capacity.
(a) Pursuant to an interagency agreement with DPA, Defendant Baker's 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 ofthe waiver program to DHS via an interagency provider agreement which specifies the activities performed by each of the two agencies. Under the tenns of this agreement, DHS is responsible for administering the waiver according to the rules, regulations and procedures established by the DPA. DRS acts as the fiscal agent ofDPA. DRS has in tum 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 habilitation, personaJ care, adaptive equipment and minor modifications to the home.
13. Defendant Melssa Wright is the Associate Director ofthe Office ofDevelopmentaJ Disabilities (ODD) which is operated within DRS and she is being sue in her official capacity.
The Office ofDevelopmentaJ Disabilities (ODD) is responsible for the control and administration
of the developmental disabilities program and its related Medicaid program in Illinois.
9

STATEMENT OF FACTS 14. 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 ("lUIS"). 15. 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
i.
implementing regulations. 16. 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)(10)(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)(10)(C); 42 C.F.R. Section 435.4.
17. One optional service that a participating state may provide is care for eligible individuals in an "intermediate care facility for the mentally retarded ("lCF/MR."). 42 U.S.C. Sections 1396d(a)(15), (d). 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 oflffiS that pennits the state to provide such services in
10

place ofICFIMR care. Id. at Section 1396n(c)(1). Once a state commits to provide optional services, it must provide them in compliance with the requirements ofthe Medicaid Act.
18. (a) The State of Illinois participates in the Medicaid program and has filed a State Plan with the federal government. In the State Plan, the State 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 ICFIMR. or ICFIDD ("intermediate care facility for the developmentally disabled") services for eligible individuals. ICFIMR. or ICFIDD 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.F.R. Sec. 483.400(a)(1)(i)-(ii).
19. The State ofIllinois was granted approval by the Secretary ofHHS to operate a "Home and Community Based-Service (HCBS) waiver program to provide services to individuals with mental retardation or developmental disabilities who would otherwise require ICFIMR level of care effective June 1, 1991. Waivers are approved for an initial three year period and can be renewed for five year periods. The State ofIllinois' waiver has been renewed on July 1, 1994 and July 1, 1999. Pursuant to its waiver program, the State of Illinois guarantees to eligible mentally retarded and developmentally disabled individuals the choice between ICFIMR services and home or community-based care. Waiver services are a cost effective alternative to higher cost,
11

less integrated institutional care in an ICFIMR. 20. The State ofIUinois' waiver plan provides that individuals who are detennined to be
eligible for "waiver"services shall be given the choice of either institutional or home and community-based services, and it provides for the opportunity for a fair hearing for eligible persons who are not given this choice. HHS reviews the State ofIllinois waiver program to make sure that it provides for choice and a fair hearing.
21. Individuals who are eligible for "waiver"services are also guaranteed a choice
between those services and ICFIMR or ICFIDD care by the Medicaid Act itself, 42 U.S.C. Section 1396n(c)(2)(C), and by other federal statutes and regulations. Both the Americans with
Disabilities Act, 42 U.S.C. Section 12132, and the Rehabilitation Act, 29 U.S.C. Section 794, prohibit public entities and recipients offederal funds from discriminating against any individual by reason of disability. The implementing regulations for those statues require that public and federally-funded entities provide programs and activities "in the most integrated setting appropriate to the needs of the qualified" individual with a disability. 28 C.F.R. Sections 35. 130(d), 41.51(d). Eligible individuals therefore are entitled to choose home and communitybased services that are more "integrated" than institutional care.
22. As a participant in the federal Medicaid program and a recipient offederal funds, the State ofIllinois is required to comply with the provisions of the Medicaid Act.
23. (a) Section 1396a(a)(8) ofthe 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,"
12

among other things, "[t]umish Medicaid promptly to recipients without any delay caused by the agency's administrative procedures," and "[c]ontinue to furnish Medicaid regularly to aU eligible individuals until they are found to be ineligible." 42 C.F.R. Sec. 43S.930(a)-(b) (1996). Another regulation states that "[t]he agency must establish time standard for detemrining eligibility and inform the applicant of what they are." 42 C.F.R. Sec. 435.911(a) (1996). These period are not
to exceed 4<[n]inety days for applicants who apply for Medicaid on the basis of disability" or
"[tJorty-five days for all other applicants." 42 C.F.R. Sec. 435.911(a)(1)-)(2) (1996). Moreover, the agency "must not use the time standards" as "a waiting period." 42 C.F.R. Sec. 435.911(e)(1) 1996.
24. Section 1396a(a)(3) further provides that a State plan must "provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness."
25. Despite the Medicaid Act's clear command that eligible individuals receive care and services with "reasonable promptness," the Defendants have failed to provide much-needed services to the Plaintiffs.
26. The Plaintiffs are eligible developmentally disabled and mentally retarded individuals and are currently denied residential Medicaid services to which they are entitled.
27. 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.
13

COUNT I VIOLATION OF MEDICAID ACT, 42 U.S.C. SECTION 1396a(a),
AND 42 U.S.C SECTION 1983 28. The Plaintiffs repeat and incorporate by reference as though fully set forth here the facts contained in paragraphs 1 through 27 above. 29. Defendants, while acting under color of law, 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 Medicaid services to Plaintiffs with reasonable promptness, even though the Plaintiffs are eligible to receive such services. 30. Defendant, while acting under color oflaw, 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. 31. Defendant, while acting under color oflaw, have violated and are violating Plantiffs' 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. 32. Defendants, while acting under color oflaw, have violated and are violating Plaintiffs' rights under 42 U.S.C. Section 1396a(a)(3) and 42 U.S.C. Section 1983 by failing to provide a fair hearing for any individual whose claim for Medicaid services is not acted upon with reasonable promptness. 33. As a result ofthe acts and omissions ofthe 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
14

deprivations in the future absent relieffrom this Court.
COUNTll VIOLATION OF DUE PROCESS AND 42 U.S.C. SECTION 1983 34. The Plaintiffs repeat and incorporate by reference as though fully set forth here the facts contained in paragraphs 1 through 27 above. 35. Because the Plaintiffs are eligible for Medicaid services, they have a property right that may not be abridged without due process oflaw. Moreover, section 1396a(a)(3) of the Medicaid Act specifically requires a fair hearing for any individual whose claim for Medicaid services is not acted upon with reasonable promptness. 36. Defendants, while acting under color oflaw, have violated and are violating plaintiffs' Due Process rights under the Fifth and Fourteenth Amendment ofthe Constitution and 42 U.S.C. Section 1983 by failing to provide Medicaid services for which the Plaintiffs are eligible without any hearing. 37. As a result of these arbitrary delays and denials ofMedicaid services to which the Plaintiffs are entitled, 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 arbitrary deprivations in the future absent relief from this Court.
15

COUNTID VIOLATION OF AMERICAN WITH DISABILITIES ACT (ADA)
AND 42 U.S.C SECTION 1983 38. The Plaintiffs repeat and incorporate by reference as though fully set forth here the facts contained in paragraphs 1 through 27 above. 39. Title II of the American with Disabilities Act (ADA) provides that no qualified person with a disability shall be subjected to discrimination by a public entity. 42 U.S.C. Sec. 42 U.S.C. Sec. 1201 et. seq. A public entitle shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. 28 C.F.R. Sec. 3S.130(d) (1998). 40. Plaintiffs are qualified individuals with disabilities and are eligible for residential Medicaid services but are not receiving services under the State plan. Plaintiffs are qualified for the Home and Community Based-Service (HCBS) waiver program. A community placement is the most integrated setting appropriate to Plaintiffs needs and Plaintiffs desire community-based treatment. The Plaintiffs community-based placements can be reasonably accommodated. 41. The Defendants failure to place Plaintiffs in a community-based program, after the Pre-Admission Screening (PAS) Agency or Service Coordinator found such placements appropriate and after the Plaintiffs desired such placements, violated Title II of the ADA. 42. That after Plaintiff has been found to be qualified for a community-based program, the failure of the Defendants to provide these services in the "most integrated setting appropriate" to herlhis needs, violates the ADA. 43. The State of Dlinois does not have a comprehensive, effectively working plan for placing qualified persons with mental disabilities and developmental disabilities in less restrictive
16

settings. 44. The State ofIllinois does not have a comprehensive, effectively working plan for
placing qualified persons with mental retardation and developmental disabilities in less restrictive settings with reasonable promptness.
45. The State ofIllinois does not have a comprehensive, effectively working plan for placing qualified persons with mental retardation and developmental disabilities who are in need of residential medicaid services with reasonable promptness.
46. The State ofIllinois does not have a waiting list for placing qualified persons with developmental disabilities or mental retardation in less restrictive settings.
47. The State ofIllinois does not have a waiting list for placing qualified persons with developmental disabilities or mental retardation in community based settings.
48. The State ofIllinois does not have a waiting list for placing qualified persons with developmental disabilities or mental retardation who are in need of residential Medicaid services.
49. Defendants, while acting under color oflaw, have violated and are violating Plaintiffs' right under Title II of the American with Disabilities Act and 42 U.S.C. Section 1983.
50. 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 arbitrary deprivations in the future absent relief from this Court.
17

COUNT IV VIOLATION OF REHABn.ITATION ACT AND 42 U.S.C SECTION 1983 51. The Plaintiffs repeat and incorporate by reference as though fully set forth here the facts contained in paragraphs 1 through 27 above. 52. The Rehabilitation Act, 29 U.S.C. Sec. 794, prohibits public entities and recipients of federal funds from discriminating against any individual by reason of disability. The implementing regulation for the statute requires that public and federally-funded entities provide programs and activities "in the most integrated setting appropriate to the needs of the qualified individual with a disability." 28 C.F.R. Section 41.51(d). 53. The Defendants fail to administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. 54. The Plaintiffs are entitled to choose home and community-based services that are more "integrated" than institutional care. 55. Plaintiffs are individuals with disability under the Rehabilitation Act. 29 U.S.C. Sec. 705(9). 56. Plaintiffs are qualified individuals with disabilities and are eligible for Medicaid services but are not receiving services under the State plan. Plaintiffs are qualified for the Home and Community Based-Service (HCBS) waiver program. A community placement is the most integrated setting appropriate to Plaintiffs needs and Plaintiffs desire community-based treatment. The Plaintiffs community-based placements can be reasonably accommodated. 57. The Defendants failure to place Plaintiffs in a community-based program, after the Pre-Admission Screening (PAS) Agency or Service Coordinator found such placements
18

appropriate and after the Plaintiffs desired such placements, violated the Rehabilitation Act. 58. That after Plaintiff has been found to be qualified for a community-based program, the
failure of the Defendants to provide these services in the most integrated setting appropriate to her/his needs, violates the Rehabilitation Act.
59. The State ofIIlinois does not have a comprehensive, effectively working plan for placing qualified persons with developmental disabilities or mental retardation in less restrictive settings.
60. The State oflllinois does not have a comprehensive, effectively working plan for placing qualified persons with mental disabilities and developmental disabilities in less restrictive settings.
61. The State ofIllinois does not have a comprehensive, effectively working plan for placing qualified persons with mental retardation and developmental disabilities in less restrictive settings with reasonable promptness.
62. The State of Illinois does not have a comprehensive, effectively working plan for placing qualified persons with mental retardation and developmental disabilities who are in need of residential medicaid services with reasonable promptness.
63. The State ofIllinois does not have a waiting list for placing qualified persons with developmental disabilities or mental retardation in less restrictive settings.
64. The State ofIllinois does not have a waiting list for placing qualified persons with developmental disabilities or mental retardation in community based settings.
65. The State ofIllinois does not have a waiting list for placing qualified persons with developmental disabilities or mental retardation who are in need of residential Medicaid services.
19

66. As a result ofthe acts and omissions ofthe 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 ofopportunities to develop to their fullest potential, and the aggravation of existing physical, mental and emotional conditions. The Plaintiffs will continue to suffer such arbitrary deprivations in the future absent relief from this Court.
COUNT V VIOLATION OF EQUAL PROTECTION AND 42 U.S.C SECTION 1983 67. The Plaintiffs repeat and incorporate by reference as though fully set forth here the facts contained in paragraphs 1 through 27 above. 68. The Plaintiffs have similar disabilities and needs to those ofindividuals who have received and are presently receiving all Medicaid services for which they are eligible. Defendants have no rational basis for denying the Plaintiffs Medicaid services and waiver services to which they are entitled, while providing such services to other similarly situated developmentally disabled and mentally retarded individuals. 69. Defendants, while acting under color oflaw, have violated and are violating Plaintiffs' right to Equal Protection of the laws guaranteed by the Fourteenth Amendment of the Constitution and 42 U.S.C. Section 1983. 70. As a result ofthis arbitrary, discriminatory treatment supported by no rational basis, the Plaintiffs have suffered and continue to suffer physical, mental and emotional deprivation, including but not limited to the loss of skills, the loss ofopportunities to develop to their fullest potential, and the aggravation of existing physical, mental and emotional conditions. The
20

Plaintiffs will continue to suffer such arbitrary deprivations in the future absent relief from this Court.
REQUEST FOR RELIEF WHEREFORE, the Plaintiffs respectfully request that this Court: (a) Enter Judgment in favor ofthe Plaintiffs and hold that the Defendants' failure to provide Medicaid services to the Plaintiffs violate 42 U.S.C. Section 1983, the Medicaid Act, 42 U.S.C. Section 1396a(a), the Americans with Disabilities Act, the Rehabilitation Act, the Fifth 'and Fourteenth Amendments of the Federal Constitution~ (b) 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 the Plaintiffs the fu~l range ofICFIMR services or home and community-based waiver setvices and other services for which they are eligible within 90 days or some other specifically-defined, reasonably prompt period; (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 the Plaintiffs who are eligible for "waiver" services the choice of receiving ICFIMR or home and community-based setvices that are suitable for their needs within 90 days or some other specifically-defined period - a choice that is required by the State of Illinois waiver program, by the Medicaid Act, 42 U.S.C. Section 1396n(c)(2)(C), and by federal statutes and regulations entitling disabled persons to services in the "most integrated setting" appropriate to their individual needs, see 42 U.S.C. Section 12132 (Americans With Disabilities Act); 29 U.S.C. Section 794 (Rehabilitation Act); 28 C.F.R. Sections 35, 130(d), 41.S1(d);
21

(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 reliefas the Court deems just and appropriate.
Respectfully submitted,
Robert H. Farley, Jr.
Robert H. Farley, Jr., Ltd. 1155 S. Washington Street
Naperville, n. 60540
Phone: 630-369-0103 Fax: 630-369-0195
22

JS 44 /Rev. 12/96) i

CIVIL COVER SHEET

The JS-44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as requ
by law, except as provided by local rules of court This form, approved by the Judicial Conference of the United States in September '974, is required for the
of the Clerk of Court for the purpose of initiating the civil docket sheet (SEE INSTRUCTIONS ON THE REVERSE OFTHE FORM.)

l.(a)PLAINTIFFS - Boudreau, Edward;

DEFENDANTS - Ryan, George H.; Patla,

Bruggeman, Brian; Corsello, Frances; Moore, Angela; and Semprevivo, Linda.
(b) COUNTY OF REsiDENCE OF FIRST LISTED PLAINTIFF _ _C_O_O_k_ _ _ _ __
(EXCEPT IN U.S. PLAINTIFF CASES)

• • Ann: BUOaC'da
Me~ll~.~

5

S .

;

Q

;2

ri

gR"Ah"U'·' ,I't

COUNTY OF RESIDENC~O; FIRST LISTED DEFENDANT
lV~I1\6.151~m .mo=-:~=-:-D£-NnT1-Jt-,-
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCAn~O?THE TRACT OF LAND INVOLVED.

(c) ATIOfINeYS (FIRM NAME. ADDRESS. AND TELEPHONE NUMBER)

ATIORNeYS (IF KNOWN}

Robert, H. 'Farley I Jr. Robert H.Farley, Jr., Ltd. 1155 S. Washington, Naperville, IL 605 0

SEP - 5 2000 ~;: ~

II. BASIS OF JURISDICTION

(PLACE AN 'X' IN ONE BOX ONLY)

D 1 U.S. Govemment Plaintiff
o 2 u.s, Government
Defendant

Federal Question (U.S. Government Not a Party)
o 4 Diversity
(Indicate Citizenship of Parties in Item III)

III.

CITIZENSHIP OF PRINCIPAL
(For Diversity Cases Only)

PARTIES

(7~- P~NhEN;BSo"NiOt~FBlOYR4f~ONFTi )Pr.AIN'

PTF DEF

t':'"; _ LWC2PTF DI;

Citizen of This State

o , 0 , Incorporatedl..6r';Princlpa! P~ n 4 0 •

Citizen of Another State 0 2 0 2

of Busines'S:Jtl This State 'l)

~ipal Incorporatec!simd

Pla@ n 50!

of BUsiness In A~er StatW

Citizen or Subject of a 0 3 o 3 Foreign Nation 0 Foreign Country

::i 0 6 01

IV. ORIGIN
1'\ ~ 1 Original Proceeding

0 2 Removed from State Court

(PLACE AN "X" IN ONE BOX ONLy)

0 3 Remanded from Appellate Court

o 4 Reinstated or Reopened

Transferred from
o sanother district (specify)

011 Multidistrict Utigation

Appeal to Oisai Jud\)E' from
07 MagIstrate
Judgment

V. NATURE OF SUIT (PLACE AN UX" IN ONE BOX ONLy)

CONTRACT
D 110 Insufance 0120 Martne
oQ 130 Miller Act 140 Negotiable Ir\s1rumenl
o 150 Recovery of overpayment & Enrorcement or JUdgment D 151 M9d\care Act
o 152 Rl!COVerlor Delauned Student oans IExcl. Velarans)
o 153 Recovery 01 Overpayment of Veteran's Senerlts D 160 Stockhotdel!;' SuiIs
o 190 Other Conlraci o 195 Contract Product Liablilly
REAL PROPERTY
o 2tO Land Condemnation o 220 Forecl()Sure
oo 230 Rent Lease & EleClment 2411 ToJts to Land
o 246 TOll Product LlabllllY o 290 All Other Reall'rope<ly

TORTS

FORFEITURE/PENALTY

PERSONAL INJURY
o 3111 Airplane o 315 Airplane Product
LlaDlllty
o 3211 Assaun, Libel & Slander
o 330 Federal Employers' liability
o0340 Martne 345 Maline Product Liability
o 350 Motor V9hlcle o 355 Motor vehicle
Product liability
o 360 Other Personal Injury

PERSONAL INJURY 0382 Pef$Onallnjury -
Mild. Malpractice
o 36S Persooallnjury Product Liability
o 368 Asbestos Personal Injury Product Liability
PERSONAL PROPERTY 0370 Other Fraud
o 371 Truth In lending o 3BO Other I'el$Onal
Property Damage
o 3$5 Proper1y Damage Product liability

CIVil RIGHTS
0441 Vollng
o 442 Employment o 443 HOUSing!
Accommodations 0444 Wenare ~440 OIller elllli Rights

PRISONER PETITIONS
o 510 Motions to Vacate Sentence
o HABEAS CORPUS: 53G General
o S35 Death Penalty o 540 Mandamus & Other o S50 CMIRlghts o 5S5 I'nson Condition

o 610 Agriculture o 120 Other Food &. Drug o 825 Drug Related SeIzure
of Property 21 USC set
o 830 Liquor Laws o 1140 R.R. & Truck
Cl 8$0 Airline Regs. CJ 860 Occupational
SaretyIHeanh 0890 Other
LABOR
o 710 Fair Labor StBndard$ ACI D 720 labOrlMgmt Relations
CJ 730 LabOr/Mgmt, Reporting & Dlscl()Sure Act
o 740 Ratlway labOr Act
o 7911 Other labOr LlIlgaUon
o 791 Empt Ret. Inc. SecUl1tyAcl

BANKRUPTCY
o 422 Appeal 26 USC 15B o 423 Withdrawal
28 USC 157
PROPERTY RIGHTS
o 820 Copyrights
0$$ Patenl
o 840 Trademark

SOCIAL SECURITY
o 861 HIA (1395ff) o 862 Black lung (923) o 863 DIWC/DIWW (405(g}l o 864 SSID Title XVI o 86S ASI 1405(g))

FEDERAL TAX SUITS

o 870 'Taxes {U.S. Plalmilr

or DQfendanl)

o 871 IRs - Third Party

.

2SUSC7609

OTHER STATUTES
o 400 State R.apportlOnmenl
Q 410 Aml'rusl CJ 430 Banks and BanKIng
o 4SO Commeree,llCC Rates/ell::. o0460 Deportation
470 Racketeer Influenced and, Corrupt Organlzallons
o 810 SeI&c1JVe Service o .50 SecurtUesJCommodltles/
Exchange
o 875 Custome, Challenge 12 USC 3410
o 891 AgricUltUral Acts o 892 Economic Stabillz8tiO!l Aq o 893 Environmental Maners o 194 Energy Allocation Act o 895 Freedom or
Information Act
o 900 Appear of Fee Determination Under Equal Access 10 JuSlk:
o 950 ConslhutiOnallty or Stale Stalllles
CJ 890 Other Statutory Actions

VI. CAUS E OF ACTION (CITE THE U.S. CML STATUTE UNDER WHICH YOU ARE FlUNG AND WRITE BRIEF STATEMENT OF CAUSE.
DO NO; CITE JURISDICTIONAl STAn.m:S UNLESS orVERSITY.)
42 u.s.c. 1396a(a) & 42 U.S.C. Sec. 1983 - Violation of Medicaid
cause of action.

Act

principle

VII. REQUESTED IN tl CHECK IF THIS IS A CLASS ACTION

COMPLAINT

UNDER F.R.C.P. 23

DEMAND $

CHECK YES only if demanded in complaint

JURY DEMAND: 0 YES

or NO

VIII.

This case

fi: is not a refiling of a previously dismissed action.

o is a refiting of case number

, previously dismissed by Judge _ _ _ _ __

\'.. '.-

DATE 9//Zf}(JeJ

UNITED STA.TES DISTRICT COURT

In the Matter of

UNITED STATES D1STRJCT COURT DOCKETED
NORTHERN DISTRlCT OF ILLINOIS SEP - 5 2000

Edward Boudreau, et. a1.,
Plaintiffs, v.

,HOC 539~
Case Number: JUDGE GRADY

George H. Ryan, et. a1.,

Defendants.
APPEARANCES ARE HEREBY FILED BY THE UNDERSIGNED AS ~+~~j¥8i~ DENLOW

Edward Boudreau; Brian Bruggeman; Frances Corsello; Angela Moore and

Linda Sernprevivo.

(A)
IJ:fcf\ SIGNAnmEOZw

NAME
Robert H. FYr1ey, Jr.

RRM
Robert H. Farle..Y, Jr. , Ltd.

STl\£ET ADDRESS
1155 s. Washincct._on

CITYISTA TE1ZIP

Napervi 11 @!. TT
TELEPHONE NUMBER
630-369-0103

f),c)4n
FAXNUMBU
630-369-0195

E-MAIL ADDRESS

farlev1 rn.r{§);::) n1 "nl'Yl
IOEN'I1F1CAnON NUMJ3ER (SEE ITEM 4 ON IlEVERSE)

3124293

MEMBEROFT~BAR7

YES IDe NO 0

TIUAl ATIORNEY?

mx YES

NO 0

SIGNAnIRE

(C)

SIGNA TlJR.E NAME FIRM STl!£ET ADDRESS ClTYfSTA TEJZIP TELEPHONE NUMBER E-MAIL ADDRESS

(B)

1 ,-,
<,v'iI,..J
\1-.ole""""':;
U.J
I
.C:':,l
~" ~
""'-!'. ~
..~"rlc." ~
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In
"
~
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-
v;~-:_\u-,
0
C)

i:~: .'?
;~:;;,
U
.........
c:;:;w
Ld;:;:
I
\.JCf) .
0
(,f)
::::)

IFAXNUMBER

IDENTIFlCAnON NUMJ3ER (SEE ITEM. ON REVERSE)

MEMBEJl OF TRIAL.8A1l7 TlUAL AnORNEY'I DESIQNATED AS LOCAL COUNSEL?
SIGNA11.JRE

YES

0

NO 0

YES

0

NO 0

YES

0

NO 0

(D)

NAME

NAME

FIRM STREET ADDIlBSS

FIRM STREET ADDRESS

CrTYlSTATElZIP TELEPHONE NUMBER

IFAX NUMBER

OTYISTATEIZIP TELEPIiONE NUMJ3El\

IFAXNUMBER

E·MAIL ADDRESS IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)

MEMBER OF TIUAL BAR? TRIAL ATTORNEY'I DESIGNATED AS l.OCAL COIJNSEL?

YES

0

YES

0

YES

0

NO 0

NO

0

NO 0

E-MAIL ADDRESS IDENTIFICA1"101'1 NUMBER (SEE ITEM 4 ON REVERSE)

\

\

/

1
t

MEMBER. OF TIllAL BAR?

YES

0

NO 0

'J1UAL ATTOIlNEY?

YES

0

NO 0

DESIGNATED AS LOCAL COUNSEL?

YES

0

NO 0

 
 'CI ~_ __', --:...-i

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

EDWARD BOUDREAU, by and through his

)

parents, Edwin and Ann Boudreau, et. aI.,

)

)

Plaintiffs,

)

)

vs.

)

)

)

GEORGE H. RYAN, in his official capacity as )

Governor of the State of Illinois, et aI.,

)

)

Defendants.

)

JUOGE

UNtTk,'O . JOHN}:

,$

STArEs 0 . GRADy IS'TRlcr COURT

NoA' 00 C 5392

.

JUDGE GRADY

i'

MAGISTRATE DENLOW

PLAINTIFFS' MEMORANDUM OF LAW IN RESPONSE TO THE COURT'S INQUIRY ON DECEMBER 6,2001

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

Thomas G. Morrissey, Ltd., and submits this Memorandum of Law in Response to the Court's

inquiry on December 6, 2001 and in support thereof states as follows:

t. Pre-Admission Screening Agencies Are Agents Of The State Of Illinois

59 Illinois Administrative Code Section 120.10 defines Pre-Admission Screening (PAS)

agents as follows:

Community agencies or units of local government selected by the Department to act as agents of the Department in carrying out certain federal and State requirements related to the assessment, determination or eligibility, and arrangements for Medicaid-funded services and supports for individuals with a developmental disability. 1

The Procedures Manual for Developmental Disabilities Pre~Admission Screening

Agencies issued by the Illinois Department of Human Services, states as follows:

1 See Exhibit"A" 1

The role of the DD PAS agency is to ensure compliance with applicable Federal and State laws, arrange for and conduct assessments, make necessary determinations regarding eligibility for services, educate individuals and families, and make referrals and provide linkage to appropriate and needed services.2
II. The Family Is Part Of The Active Treatment Program Habilitation or active treatment generally refers to programs for the mentally retarded which focus primarily on training and the development of needed skills. Youngberg v. Romeo, 457 U.S. 307,309 n.l, 102 S.Ct. 2452 (1982). ICF/MR regulations require, as a condition of participation, that "each [resident] receive a continuous active treatment program, which includes aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services ... that is directed toward the acquisition of the behaviors necessary for the [resident] 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 C.F.R. Sec. 483.440(a) (See Exhibit "C") Each resident must have an individual program plan (lPP) developed by an interdisciplinary team (lDT) based on an assessment of the individual needs of the resident. 42 C.F.R. Sec. 483.440(c) and the family is part of the interdisciplinary team. "Participation by the [resident], his or her parent (if the client is a minor), or the client's legal guardian is required unless that participation is unobtainable or inappropriate. 42 C.F.R. Sec. 483 .440(c)(2). (See Exhibit "C") The Health Care Financing Administration (HCFA) has issued survey procedures and
2 See Exhibit "B" - Section 020.00 2

interpretive guidelines for ICF/MRs. (See Exhibit "D") In order to determine whether a person is receiving an active treatment program, the surveyors are required to interview the individual and family/advocate and the purpose is as follows:
Individuals living in the facility, their families/guardians and advocates, and direct care staff are important sources of information about the receipt of active treatment on a daily basis. Interviews are conducted for two purposes: to determine how the individual perceives the services delivered by the facility, and to clarify information gathered during observations. (See Exhibit D-14 at VIlLA) The interview procedure begins with the individual, then followed by the families, legal guardian or advocates and then followed by others such as the direct care staff, professional staff and the administrators. (See Exhibit D-15 at B) The "Content ofIn~Depth Interviews" is as follows: Determine what the facility does to provide individualized services and supports; and how individuals and families participate in service planning and in making choices about matters important to them. (See Exhibit D~ 16 at C) Accordingly, the family of a person with developmental disabilities is an integral part of the active treatment program.
III. The Seventh Circuit Court Of Appeals Recognizes The Importance Of Persons Obtaining Services Near Their Families and Homes (Market Area)
In Nelson v. Monroe Regional Medical Center, 925 F.2d 1555 (7\11 Cir. 1991), the Circuit Court (Flaum, J.), reinstated the antitrust claim which a family had filed against a medical clinic. The Plaintiffs were a mildly retarded 18 year old woman and her mother, who lived in Monroe, a city of approximately 10,000 inhabitants located in south central Wisconsin. Because of her
3

handicap, the daughter was in need of frequent medical attention and received services from a
doctor ofthe Monroe Clinic. After a malpractice suit was brought against the doctor, she ceased
going to the Monroe Clinic and instead went to a different clinic, the Monroe Medical Center.
However, the two clinics merged and although the malpractice claim had been withdrawn, the
family was notified by the merged clinic that it would no longer treat either of them on a non-
emergency basis and offered to assist them to find alternate care and to transfer records to the
providers they selected.
The Court stated:
Plaintiffs now obtain medical care in Madison Wisconsin, some 40 miles north of Monroe. Another consequence of the Clinic's decision to deny them care is to prevent Bowman from obtaining medical care by herself; because she must travel outside Monroe, she must be driven by [her mother]. According to [her mother] and her employer, the City of Monroe, the need to accompany her daughter on her periodic visits to doctors in Madison has disrupted Nelson's work schedule and caused her to lose wages. ld. at 1557.
The Court found that the Plaintiffs had "alleged and introduced facts to support the view
that' an injury to the market' has occurred that has claimed them as its first victims." Id. at 1565.
Judge Cudahy, concurring stated:
In fact, the plaintiff has suffered what is the very essence of antitrust injury. The merger of the Monroe Clinic and the Monroe Medical Center has ostensibly eliminated all competition in the provision of medical services in the Green County market. It was this elimination of competition and the resulting effective monopoly position of the Monroe Clinic that made the Clinic's refusal to deal with Darci Bowman injurious to her. Because she had no other supplier with which to deal, Bowman was forced to seek service in another market allegedly to her detriment. Id. at 1568.
4

In United States ofAmerica v. Rockford Memorial Corporation, 898 F.2d 1278, (7th eir. 1990), the Circuit Court (Posner, J.) affirmed an injunction which prevented the merger of the two largest hospitals in Rockford~ Illinois which held around two~thirds of the market for inpatient services in their geographical area. The Court characterized the Defendants proposal that the hospitals market area should encompass a ten-county area service as being "ridiculous." ld. at 1285. The Court stated, "But for the most part hospital services are local. People want to be hospitalized near their families." Id at 1285.
In the instant case, developmentally disabled persons should be permitted to receive services in their communities so they can maintain their ties to their family as the family is an integral part of the active treatment program.
Robert H. Farley~ Jr. Robert H. Farley, Jr., Ltd.. 1155 S. Washington Street Naperville, IL 60540 Phone: 630-369-0103 Fax: 630-369-0195 Thomas G. Morrissey Thomas G. Morrissey, Ltd. 10249 S. Western Avenue Chicago, IL 60643
Phone:773~233-7900
Fax: 773-239-0387
5

----------~--
• •
... x 1 1

..
59 Ill. Adm. Code 120.10 Definitions

Page lof3

Illinois Administrative Code
LJ mi119i~. Adminifitr..~tlY~C:~Q4~
o TITLE 59;.MENTAL HEALTH.
LJ CHAPTEKJ.:.P.EPARIMEJ:U OF r:UJMAttSERVICBS CJ PART 120 MEDICAIOBOME AND COMMUNITY-BASgD SERVICES WAIVER PB-Q.OMM FQR INDIYlPUAL~.WIII:LDEYELOPMENTALJ2ISABJL.J.:rlE_S D SUBPARIA:GENERAL PRQVJSIQNS
59 I~l. Adm. Code 120.10 Definitions
For the purposes of this Part, the following terms are defined:
"Code." The Mental Health and Development Disabilities Code 405 ILCS 5.
"Community integrated living arrangement (elLA) .ff A living arrangement provided by a licensed community developmental disabilities services 9gency where eight or fewer individuals with a developmental disability reside under the supervision of the agency. Individuals receive a customized array of flexible habilitation or personal care supports and services in the home, in day programs and in other community locations under the supervision of a community support team within the local agency. 210 ILCS 135/3(d)
"Community living facility (CLF)." A facility geared to assist the individual in preparing for independent living. Emphasis is placed on teaching the individual adequate social and daily living skills. Individuals are involved in practical experiences in community living and are guided in planning for and using leisure time and developing the ability to functiQn independently in the community. Community living facilities are limited to no more than 20 individuals, age 18 or older (Community Living Facilities Licensing Act 210 ILCS 35).
"Communit,y residential alternatives (CRA)." l\_group home, as defined in the Community Residential Alternatives Licensing Act 210 ILCS 140, fo_r eight _or fewer adults with developmental disabilities who are unable to live independently but are capable of community living if provided with an appropriate level of s~~rvision, assistance and support services. A community residential alternative may provide training and guidance to individuals in tb.iL skills of daily living and shall -2£ovide opportunities for participation in community activities. A community residential alternative shall not be a medical or nursing facility. 210 ILCS 140/3(4)
"Confidentiality Act.n The Mental Health and Developmental Disabilities Confidentiality Act 740 ILCS 110.
"Days." Unless otherwise indicated, means calendar days.
"Department." The Department of Mental Health and Developmental Disabilities.
"Developmental training." A day program that focuses on the development and enhancement of daily living skills such as motor development, dressing, grooming, toileting, eating, language, reading and writing, quantitative skills, capacity for independent living, economic self-sufficiency and reduction of maladaptive behaviors.
"Director." The Director of the Department of Mental Health and
.. .Idocview.htp?Query=%28%28%3CWORD%3E120.1 0+%29%3CIN%3EGB%29&SrcQuery=P12/9/01

59'111. Adm. Code 120.1 0 Definitions

Page 2 of3

"Grant agreement." When fully executed the obligating instrument providing the basis for Departmental financial participat~on in grant-in-aid programs and which formalizes the contractual relationship between the Department and the provider indicating the amount of Department funds which will be paid to the provider for the provision of services as described in the grant agreement and the agency plan. Requirements for grant-in-aid funded providers are contained in the Department's rules at 59 Ill. Adm. Code 103.
"Guardian." A person appointed by the court as the plenary or limited guardian or conservator of the individual for an individual over age 18 so long as the limited guardian's duties encompass concerns related to service requirements or the natural or adoptive parent of a minor or a person acting as a parent of a minor.
"Habilitation." An effort directed tow_ard. the alleviation of a develonmental .9isabilitY-Qr toward increasing the level of ----.£hysicaL_ mental, social or economic functioniQg of an individual with a developmental disability. Habilitation may_ include, but is not limited to diagnos~~ evaluation, medical services, . residential care, day careJ ---.9.p'ecial living ar.rangements, trainin.g.t_~ducationl sheltered §mplqyment L supported employment, protective serviges, counseling and other services provided to individuals with developmental disabilities by developmental disabiliti~s facilities. (Section 1-111 of the Code)
"Home individual program (HIP)." A program which provides support and training to one or two individuals with developmental disabilities in a home environment.
"IndividuaL" A person with developmental disabilities who is requesting, is receiving or has received services under this Part.
"Individual service/support plan." A written plan of care, consistent with the individual's diagnosis and needs, which describes the habilitation goals and a projected timetable for their attainment and the services/support to be provided as defined in Section 4-309 of the Code.
"Intermediate care facility for the mentally retarded (ICF/MR)." Medicaid-certified long-term care facility as defined by 42 CFR 440.150 (1994) serving individuals with developmental disabilities. ICF/MR includes community facilities licensed by the Department of Public Health for skilled/pediatric nursing (77 Ill. Adm. Code 390) {if certified as ICF/MR), intermediate care for the developmentally disabled (77 Ill. Adm. Code 350), intermediate care for the developmentally disabled with 16 beds and under (77 Ill. Adm. Code 350) and State-operated developmental centers.
"Mental retardation." Significantly subaver§.-9~general intellectual functioning which exists concurrently with .. impairment in adaptive belwvio~_and which origin_ates before the a~of IfL-y'~ars. (Section 1-116 of the Code)
"Nursing facility." A Medicaid-certified long-term care facility. Nursing facilities include facilities licensed by the Department of Public Health for skilled/pediatric nursing (77 Ill. Adm. Code 390) (unless certified as ICF/MR), intermediate care and skilled nursing (77 Ill. Adm. Code 300).
"Pre-admission screening and resident review (PASARR) agents." Community agencies or units of local government selected by the Department to act as agents of the Department in carrying out certain federal and State requirements related to the assessment,
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-
EXHIBIT B

...
PROCEDURES~AL
FOR
DEVELOP:MENTAL DISABILITIES PRE..ADlVllSSION SCREENING AGENCIES
July~ 2000 :'
Office of Developmental Disabilities Illinois Department of Human Services
MDrh 000100

Procedures Mannal .tpr UD PAS Agencies

Introduction

INTRODUCTION

010.00

AUTHORITY AND RESPONSffiILITY

This manual provides the policies and procedures to be followed by Developmental Disabilities Pre-Admission Screening (DD PAS) agencies as set forth in the following documents:

(1) the Omnibus Reconciliation Act of 1987;

(2) the Illinois Nursing Home Care Act (210 ILeS 45/2-201.5);

(3) Illinois Department of Public Aid Rule 89, Illinois Administrative Code 140.642 (Screening Assessment for Nursing Facility and Alternative Residential Settings and Services);

. (4) the State of Illinois Department of Human Services Community Service Agreement; and

(5) 89 Illinois Administrative Code. Part 144 (Intermediate Care Facility/Mental Retardation.

020.00

ROLE OF PAS AGENCIES

The role of the DD PAS agency is to ensure compliance with applicable Federal and State laws, arrange for and conduct assessments, make necessary determinations regard~g eligibility for services, educate individuals and families, and make referrals and provide linkage to appropriate and needed services. The PAS process will prevent inappropriate admissions to long term care facilities (nursing facilities and Intennediate Care Facilities serving persons with Developmental Disabilities [ICFDDs] ) and inappropriate enrollments in waiver programs.

July, 2000

Introduction

Intro 1

Procedures Marnujl Jar UD PAS Agencies

Introductjon

030.00

PERSONS SERVED BY DD PAS AGENCIES

Persons who are eligible to receive DD PAS Services are the following;

A. Persons to be Screened Using the OBRA~l Initial Screen. (See Chapter 100.)

1. All persons requesting admission to a nursing facility t regardless of funding sourcet will be screened using the OBRA~1 lniti~l Screen.

2. All persons requesting developmental disabilities services that will be funded through Medicaid will be screened, flISt, using the OBRA-l Initial Screen,
B. Persons to be Screened through the Level n DD PAS Screen.

1. Individuals for whom there is a reasonable basis to suspect a developmental

disability (DD) as determined by the OBRA-l Initial Screen process who are

.(

seeking admission to nursing facility services (Le., Intermediate Care Facility or

Skilled Nursing Facility), regardless of the individual's funding source, (For

individuals for whom payment will be provided by private funds, the DD PAS

agency will use the number 999999999 for the Medicaid Recipient I.D. number

on all DDPAS fonns.)

2. Individuals for whom there is a reasonable basis to suspect a DD as determined by the OBRA-l Initial Screen process who are Medicaid eligible or expected to become Medicaid eligible within 60 days, and who are seeking admission to an Intermediate Care Facility for individuals with a Developmental Disability (ICFIDD, ICFIDD-16), including those provided by a Specialized Living Center (SLC), Skilled Nursing Facility for Pediatric Residents (SNFIPED), or State~Operated Developmental Center (SODe); or any Medicaid Waiver service funded under the Home and Community~Based Services Waiver program. (For individuals who are pending Medicaid eligibility within the next 60 days, the DD PAS agency will use the number 888888888 for the Medicaid LD. number on all DDPAS forms.)

July, 2000

Introduction

Intro 2 MDrh 000101

·s

. Procedures MaD!Ja~: ~or DD PAS Agencies

Introduction

040.00

OVERVIE\V OF THE RESPONSmILITIES OF PAS AGENCIES

The DD PAS agencies) responsibilities include the following activities:

1. Provide PAS services to a designated geographic service area to ensure compliance with Federal and State Pre~Admission Screening laws and regulations;

2. Assess individuals for whom there is a reasonable basis to suspect a developmental disability who are seeking admission to nursing facilities, regardless of funding source.

3. Assess individuals who are seeking Medicaid~funded services in a DD setting and who are Medicaid eligible or are expect~d to become Medicaid eligible within 60 days;

4. Conduct and arrange for assessments required to complete the PAS process for an

individual;

.

5. -: Determine the specific service needs for individuals based on an interpretation of these assessments and evaluations, including eligibility as a person with developmental disabilities, detenninations of the need for 24-hour nursing care, and the need for active treatment for the developmental disability;

6. Screen for guardianship needs and. if necessary. refer the individual who may have guardiansbip needs to the local Office of State Guardian (OSG);

7. Educate individuals and families, presenting all options and facilitating the service selection process;

8. Link individuals to needed support services in accordance with the requirements of Federal and State criteria;

9. Coordinate PAS activities with other screening entities within the State, including those representing the Office of Mental Health. the Office of Rehabilitation Services, the Department on Aging, and other entities designated as screeners according to rules and regulations of the Illinois Department of Public Aid;

10. Complete all documentation required to support the DD PAS agencts determinations;

11. Supply necessary information to the existing or potential service provider;

July, 2000

Introduction

Intro 3
MDrh 000104

· Procedures Manual fOr DD PAS Agencies

Introduction

12. Adapt the screening and assessment processes, as necessary) to meet the cultural background, language, ethnic origin, and means of communication of all individuals presenting for services;
13. Provide 24-hour accessibility for individuals, families. and providers; and
14. Develop and implement an internal quality enhancement protocol that will ensure and document the qualitY and appropriateness of the assessments and determinations made under the DD PAS process.

050.00

GEOGRAPIDC RESPONSmILITY FOR DD PAS FUNCTIONS

For individuals located in other States who are seeking services in Illinois facilities and whose current services are not funded through Illinois public funding resources (e.g., lllinois Medicaid. Illinois Department of Human Services, lilinois Department of Child and Family Services, etc.), PAS activity must be provided by a PAS entity in the State in which the individual is currently located.

For individuals located in other States whose current services are funded through lllinois public funding resources and for individuals now located in Illinois, the. following guidelines are provided in order to enable DD PAS agencies to make consistent decisions regarding geographic responsibility. in order to provide more prompt and less costly response to individuals t service needs.

A. Geographic Issues related to DD PAS Services.

The DD PAS agency is responsible for screening and assessing individuals who are located in the geographic area assigned to the DD PAS agency by the Department of Human Services (DHS). The screening entity completing the OBRA-1. if other than a DD PAS agency, will refer the individual to the DD PAS agency responsible for the geographic area in which the individual is currently located. The DD PAS agency that receives the OBRA-l is responsible for providing DD PAS services or for referring the individual to the appropriate DD PAS agency, according to the following considerations.

1. If an individual is located in a non-hospital, non-institutional. non-State-funded setting. DD PAS services will be provided by the DD PAS agency serving the geographic area in which the individual is currently located.

July, 2000

Introduction

Intro 4
MDrh 000]0-:;;

· Procedures Manual for UD PAS Agencies

Introduction

2. If an individual has been served in a hospital, institutional, or State-funded setting for fewer than 180 calendar days, DD PAS services will be provided by the DD PAS agency serving the previous geographic area to which the individual bas the greatest significant ties. according to one or more of the foHowing factors:

(a) a previous location history of 180 or more days; and/or (b) family members, friends t advocatest andlor community organizations who express an interest in providing future supports to the individual; andlor (c) the individual's or guardian'S own expression of a preference for a geographic area. arising out of the individual's history.

3. If an individual has stayed in a hospital. institutional, or State-funded setting for

more than 180 calendar days and does not have significant ties to a previous

geographic area, services will be provided by the DD PAS agency serving the

geographic area that is the location of that hospital, institutional, or State-funded

setting.

.

4. If an individual has stayed in a hospital, institutional, or State-funded setting for more than 180 calendar days and does have significant ties to a previous geographic area, services will be provided by the DD PAS agency serving the geographic area in which those ties are located.

5. It is possible that significant ties may not be discovered until the assessment process is under way or finished. The DD PAS agency where the individual is physically located has ultimate responsibility for completing the required assessments.

6. In cases where a DD PAS agency is responsible for assessing an individual outside the DD PAS agency's own geographic area, the DD PAS agency serving the area where the individual is located must assist with scheduling and completion of assessments.

B. Transfer ofDD PAS Responsibilities when an individual plans to move to another DD

PAS Agency's Service Area. .

.

If an individual/guardian chooses services outside of a PAS agency's designated geographic area, DD PAS agencies are to use the following guidelines:
~

July. 2000

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MDrh 000106

-
.
. '
Procedures Manual for DD PAS Agencies

Introduction

1. Conduct the PAS screening.
2. Provide the individual andlor guardian with results of the Pre-Admission Screening, including the services for which the individual is eligible.
3. Facilitate the decision process for the individual and/or guardian (by answering questions and providing information) so that the individual/guardian can make choices regarding appropriate services and geographic areas.
4. When the individual/guardian has determined which service(s) and geographic area(s) are desired, make referrals to providers within your area and/or contact the PAS agencies in other geographic areas in accordance with the wishes of the individual/guardian. If the individual wishes to explore service options outside the local PAS area, the DD PAS agency must proceed with the following steps:
(a) Provide the receiving PAS agency with all information and results pertaining to the PAS process, including copies of aU Level II assessments; copies of all completed OHRA forms; information regarding assets and income; infonnation regarding the services for which the individual is eligible, chooses, and currently receives;
(b) Assist the individual and/or guardian in establishing linkage with the receiving DD PAS agency by calling the agency and detailing the transfer in writing;
(c) Assist the receiving DD PAS agency, which is responsible for making and following referrals within its assigned geographic area; ~d
(d) Serve as the contact for the individual until such time as a final provider selection has been made and an official transfer can be accomplished.
5. The DD PAS agency in whose area the individuallguardian ultimately chooses to receive services shall work with the prospective provider of services to develop service and rates packages as necessary and conduct the required four weekly visits following service implementation.

July, 2000

Introduction

Intra 6
MDrh 000107

· procedures Manua1.fpf UD PAS Agencies

Introduction

060.00

TIME FR.A1dES

On average, DD PAS screens must be completed within 10 days, per Federal regulations.

July. 2000

Introduction

Intro 7 MDrh 000108

•

I

•

•

EXHIBIT C

Search - 8 Results - 483.440

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8 Source: My Sources> Federal Legal - U.S. > CFR
TOC: Code of Federal Regulations > ~ > SUBPART I --_CONDITIONS OF PARTICIPATION FOR INTERMEDIATE CARE FACILITIES FOR THE MENTALLY RETARDED> § 483.440 Condition of participation: Active treatment services.
Terms: 483.440 (Edit Search)
FSelect for FOGUSTM or Delivery
r
42 CFR 483.440
LEXIS PUBLISHING'S CODE OF FEDERAL REGULATIONS
Copyright © 2001, LEXIS Publishing
*** THIS SECTION IS CURRENT THROUGH THE NOVEMBER 19, 2001 ISSUE OF *** *** THE FEDERAL REGISTER ***
TITLE 42 -- PUBLIC HEALTH CHAPTER IV -- CENTERS FOR MEDICARE & MEDICAID SERVICES, DEPARTMENT OF HEALTH
AND HUMAN SERVICES SUBCHAPTER G -- STANDARDS AND CERTIFICATION PART 483 -- REQUIREMENTS FOR STATES AND LONG TERM CARE FACILITIES SUBPART I -- CONDITIONS OF PARTICIPATION FOR INTERMEDIATE CARE FACILITIES FOR
THE MENTALLY RETARDED
42 CFR 483.440
§ 483.440 Condition of participation: Active treatment services.

(a) Standard: Active treatment. (1) Each client must receive a continuous active treatment program, which Includes aggressive, consistent implementation of a program of specialized and generiC training, treatment, health services and related services described in this subpart, that is directed toward--
(i) The acquisition of the behaviors necessary for the client to function with as much self determination and independence as possible; and
(ii) The prevention or deceleration of regression or loss of current optimal functional status.
(2) Active treatment does not include services to maintain generally independent clients who are able to function with little supervision or in the absence of a continuous active treatment program.
(b) Standard: Admissions, transfers, and discharge. (1) Clients who are admitted by the facility must be in need of and receiving active treatment services.
(2) Admission decisions must be based on a preliminary evaluation of the client that is conducted or updated by the facility or by outside sources.
(3) A preliminary evaluation must contain background information as well as currently valid assessments of functional developmental, behaVioral, social, health and nutritional status to determine if the facility can provide for the client's needs and if the client is likely to benefit from placement in the facility.
(4) If a client is to be either transferred or discharged, the facility must--
(i) Have documentation in the client's record that the client was transferred or discharged for

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good cause; and
(ii) Provide a reasonable time to prepare the client and his or her parents or guardian for the transfer or discharge (except in emergencies).
(5) At the time of the discharge, the facility must--
(i) Develop a final summary of the client's developmental, behavioral, social, health and nutritional status and, with the consent of the client, parents (if the client is a minor) or legal guardian, provide a copy to authorized persons and agencies; and
(ii) Provide a post-discharge plan of care that will assist the client to adjust to the new living environment.
(c) Standard: Individual program plan. (1) Each client must have an individual program plan developed by an interdisciplinary team that represents the professionsr disciplines or service areas that are relevant to--
(i) Identifying the client's needs, as described by the comprehensive functional assessments required in paragraph (c)(3) of this section; and
(ii) Designing programs that meet the client's needs.
(2) Appropriate facility staff must participate in interdisciplinary team meetings. Participation by other agencies serving the client is encouraged. Participation by the client, his or her parent (if the client is a minor), or the client's legal guardian is required unless that participation is unobtainable or inappropriate.
(3) Within 30 days after admissionr the interdisciplinary team must perform accurate assessments or reassessments as needed to supplement the preliminary evaluation conducted prior to admission. The comprehensive functional assessment must take into consideration the client's age (for exampler child r young adult, elderly person) and the implications for active treatment at each stager as applicabler and must--
(i) Identify the presenting problems and disabilities and where possible, their causes;
(ii) Identify the client's specific developmental strengths;
(iii) Identify the client's specific developmental and behavioral management needs;
(iv) Identify the client's need for services without regard to the actual availability of the services needed; and
(v) Include physical development and health, nutritional status, sensorimotor development, affective development, speech and language development and auditory functioning, cognitive developmentr social development, adaptive behaviors or independent living skills necessary for the client to be able to function in the community, and as applicable, vocational skills.
(4) Within 30 days after admission, the interdisciplinary team must prepare for each client an individual program plan that states the specific objectives necessary to meet the client's needsr as identified by the comprehensive assessment required by paragraph (c)(3) of this section, and the planned sequence for dealing with those objectives. These objectives must--
(I) Be stated separately, in terms of a Single behavioral outcome;
(ii) Be assigned projected completion dates;

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(iii) Be expressed in behavioral terms that provide measurable indices of performance;
(iv) Be organized to reflect a developmental progression appropriate to the individual; and
(v) Be assigned priorities.
(5) Each written training program designed to implement the objectives in the individual program plan must specify:
(i) The methods to be used;
(ii) The schedule for use of the method;
(iii) The person responsible for the program;
(iv) The type of data and frequency of data collection necessary to be able to assess progress toward the desired objectives;
(v) The inappropriate client behavior(s), if applicable; and
(vi) Provision for the ·appropriate expression of behavior and the replacement of inappropriate behavior, if applicable, with behavior that is adaptive or appropriate.
(6) The individual program plan must also:
(i) Describe relevant interventions to support the individual toward independence.
(ii) Identify the location where program strategy information (which must be accessible to any person responsible for implementation) can be found.
(iii) Include, for those clients who lack them, training in personal skills essential for privacy and independence (including, but not limited to, toilet training, personal hygiene, dental hygiene, self-feeding, bathing, dreSSing, grooming, and communication of basic needs), until it has been demonstrated that the client is developmentally incapable of acquiring them.
(iv) Identify mechanical supports, if needed, to achieve proper body position, balance, or alignment. The plan must specify the reason for each support, the situations in which each is to be applied, and a schedule for the use of each support.
(v) Provide that clients who have multiple disabling conditions spend a major portion of each waking day out of bed and outside the bedroom area, moving about by various methods and devices whenever possible.
(Iv) Include opportunities for client choice and self-management.
(7) A copy of each client's individual program plan must be made available to all relevant staff, including staff of other agencies who work with the client, and to the client, parents (if the client is a minor) or legal guardian.
(d) Standard: Program implementation. (1) As soon as the interdisciplinary team has formulated a client's individual program plan, each client must receive a continuous active treatment program conSisting of needed interventions and services in sufficient number and frequency to support the achievement of the objectives identified in the individual program plan.
(2) The facility must develop an active treatment schedule that outlines the current active treatment program and that is readily available for review by relevant staff.

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(3) Except for those facets of the individual program plan that must be implemented only by licensed personnel, each client's individual program plan must be implemented by all staff who work with the client, including professional, paraprofessional and nonprofessional staff.
(e) Standard: Program documentation. (1) Data relative to accomplishment of the criteria specified in client individual program plan objectives must be documented in measureable terms.
(2) The facility must document significant events that are related to the client's individual program plan and assessments and that contribute to an overall understanding of the client's ongoing level and quality of functioning.
(f) Standard: Program monitorIng and change. (1) The individual program plan must be reviewed at least by the qualified mental retardation professional and revised as necessary, including, but not limited to situations in which the client~~
(i) Has successfully completed an objective or objectives identified in the individual program
plan~
(ii) Is regressing or losing skills already gained;
(iii) Is failing to progress toward identified objectives after reasonable efforts have been made~ or
(iv) Is being considered for training towards new objectives.
(2) At least annually, the comprehensive functional assessment of each client must be reviewed by the interdisciplinary team for relevancy and updated as needed, and the individual program plan must be revised, as appropriate, repeating the process set forth in paragraph (c) of this section.
(3) The facility must designate and use a specially constituted committee or committees consisting of members of facility staff, parents, legal guardians, clients (as appropriate), qualified persons who have either experience or training in contemporary practices to change inappropriate client behavior, and persons with no ownership or controlling interest in the facility to--
(i) Review, approve, and monitor individual programs designed to manage inappropriate behavior and other programs that, in the opinion of the committee, involve risks to client protection and rights;
(ii) Insure that these programs are conducted only with the written informed consent of the client, parent (if the client is a minor), or legal guardian~ and
(iii) Review, monitor and make suggestions to the facility about its practices and programs as they relate to drug usage, physical restraints, time-out rooms, application of painful or noxious stimuli, control of inappropriate behavior, protection of client rights and funds, and any other area that the committee believes need to be addressed.
(4) The provisions of paragraph (f)(3) of this section may be modified only if, in the judgment of the State survey agency, Court decreesr State law or regulations provide for equivalent client protection and consultation.
HISTORY: [53 FR 2Q496, June 3, 1988. RedeSignated at 56 FR 48918, Sept. 26, 1991J

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AUTHORITY: AUTHORITY NOTE APPLICABLE TO ENTIRE PART: Sees. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).
NOTES: NOTES APPLICABLE TO ENTIRE CHAPTER: [PUBLISHER'S NOTE: Nomenclature changes affecting Chapter IV appear at 45 FR 53806, Aug. 13, 1980~ 50 FR 12741, Mar. 29, 1985; 50 FR 33034, Aug. 16, 1985~ 51 FR 41338, Nov. 14, 1986; 53 FR 6634, Mar. 2, 1988~ 53 FR 47201, Nov. 22, 1988; 56 FR 8852, Mar. I, 1991; 66 FR39450, 39452, July 31,2001.]
1704 words

0 Source: .My Sources> Federal L~<!I - U.S. > CFR
TOC: .Code of Federal Regulation!l > I . . . 1 > S\J8PART 1-- CONDITIONS OF PARTICIPATION FOR INTERMEPIATE CARI;FACILlTI~SFOR THE Mt::NTALLY RETARDED> § 483.440 Condition of participation: Active treatment services.
Terms: 483.440 (Edit Search) View: Full
Daterrime: Sunday, December 9,2001 - 10:14 PM EST

Cgp,yoghL© 2001 LexisNexis, a diviSion of Reed Elsevier Inc. All rights reserved .

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APPENDIX]

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Health Care Financing Administration

Medicare

Medicaid

SCHIP

What's New

~~ . Se?lrch
Site Index

APPENDIX J
SURVEY PROCEDURES AND INTERPRETIVE GUIDELINES FOR INTERMEDIATE CARE FACILITIES FOR PERSONS WITH MENTAL RETARDATION

APPENDIX J
SURVEY PROCEDURES F08. INTERMEDIATE CARE FACILITIES FOR PERSONS WITH MENTAL RETARDATION~(ICF$.LMRJ.
PART 1

1. II.
III.
IV.
V. VI. VII.
VIII. IX.
x.
XI.
XII.

Introduction
Principal Focus of Surveys
Survey Process
Components of Active Treatment
Task 1 ~ Sample Selection
Task 2 - Review of Facility Systems to Prevent Abuse, Neglect and Mistreatment and to Resolve Complaints
Task 3 - Individual Observations
Task 4 - Required Interviews with Individuals and/or Family/Advocate, and Direct Care Staff
Task 5 - Drug Pass Observation
Task 6 - Visit to Each Area of the Facility Serving Certified Individuals
Task 7 - Record Review of Individuals in the Sample
Task 8 - Team Assessment of Compliance and Formation of the Report of ICF/MR Deficiencies

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XIII. XIV.

Additional Survey Report Documentation (for the file)
Instructions for Completing the Revised HCFA-3070-G-I (10/95) - The ICF/MR Survey Report Form (See Exhibit 80)

INTERPRETIVE GUIDELINES FOR INTERMEDIATE CARE FACILITIES FOR PERSONS WIIH MENTAL RETARDATION
PART 2

Column 1.

Tag Number

Column II.

Regulation

Column III.

Guidance to Surveyors (Compliance Principles, Interpretive Guidelines, Facility Practice Statements, and Survey Probes)

Rev.278
'---~-------'---~-'-----

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SURVEY PROCEDURES INTERMEDIATE CARE FACILITIES FOR PERSONS WITH MENTAL RETARDATION

1. INTRODUCTION
This revised ICF/MR survey protocol is to assist surveyors to focus attenNon on the outcomes of individualized active treatment services. The Health Care Financing Administration (HCFA) intends the revised survey process to be less resource intensive for providers who consistently demonstrate compliance with the regulations. The survey process is based on the October 3, 1988 regulation and is applicable to all ICFs/MR, regardless of size.
In 1988, when the current ICF/MR regula Non was implemented, it· was viewed
as a great step forward in promoting a focus on the actual outcomes experienced by consumers, rather than on the policies, procedures and
pape/work of the facility. Since that time there has been an evolution on thinking in both the field of developmental disabilWes (oD) and in the field of quality assurance (QA).
The field of DO ;s increasingly emphasizing supporting individuals in their own homes and communities, rather than placing people in facilities. In addition services in virtually all States are placing increased emphasis on personcentered planning and person-centered services that focus on the preferences, goals and aspirations of each individual and on supporting them in reaching their personal goals. The field of QA is placing increased emphasis on outcomes related to choice, control, relationships, community inclusion, and satisfaction with life, as wef/ as satisfaction with services and supports. Many QA systems also include organizational self-assessment and continuous quality improvement components. These trends have contributed to the perception by providers and advocates that the ICF/MR regulation and oversight process is too prescriptive

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dilU loU'lIuer ::>Ulile/ dilU ::>lluurli ut::: OJUel eli LU I eJleLl r Jewel Vdllie::> UJ lfliO/lty
enhancement and continuous qua/iiy improvement.
This revised survey protocol gives facilities broader latitude to develop the processes by which it implements active treatment services. While the facility practice must comply with the requirements of 42 CFR 483, Subpart 1/ the survey is to center on the fundamental requirements that produce outcomes for individuals. When those outcomes occur, review of additional supporting requirements of process and structure is not indicated.
A survey which focuses on observations of staff/consumer interaction and on interviews with consumers regarding their participation and choice of services is sufficiently informative to determine the outcomes of active treatment. In the presence of problems, a more in-depth review of how the process unfolded for a particular individual(s) occurs.

A facility may receive reimbursement pnly- for the cost of care of individuals classifiedas eligible for the ICF/MR level of care who are receiving active treatment. Determine [acilit.'i compliance with Conditions of Participation and with standards in the context of individu_aJ experiences within the facility. When performing certification surveys to assess facility compliance, assess whether individuals are receiving needed active treatment services.

II. PRINCIPAL FOCUS OF SURVEYS

The principal focus of the survey is on the "outcome" of the facility's implementation of ICF/MR active treatment services. Direct your principal attention to what actually happens to individuals: whether the facility provides needed services and interventions; whether the facility insures

J-2

Rev. 278

SURVEY PROCEDURES INTERMEDIATE CARE FACILITIES FOR PERS~ONS WITH MENTAL RETARD, ATION

individuals are free from abuse, mistreatment, or neglect; whether individuals, families and guardians participate in identifying and selecting services; whether the facility promotes greater independence, choice, integration and productivity; how competently and effectively the staff interact with individuals; and whether a/l health needs are being met.

Use pbservation and interview as the P-rJ..01ary methods of informption gathering. Conduct record reviews after completion of observations and interviews to confirm specific issues. Verify that the facility develops interventions and supports that address the individuals' needs, and provides required individual protections and health services. Do not conduct in-depth reviews of assessments, progress notes or historical data unless outcomes fail to occur for individuals.

III. SURVEY PROCESS

The survey process is divided into three stages. They are the fundamental, extended and full survey. (Note: These stages do not apply to the Life Safety Code survey. Every certification and annual re-certification requires a complete Life Safety Code survey) (see instructions in

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A. Fundamental Suryey.--A fundamental survey is conducted to determine the quality of services and supports received by individuals, as measured by outcomes for individuals and essential components of a system which must be present for the outcomes of active treatment to occur. Certain requirements are designated as fundamental and are reviewed first. The remaining requirements (that are not designated as fundamental) are supporting structures or processes that the facility must implement. A decision that a provider is in compliance with the fundamental requirements indicates an outcome-reviewed compliance with the non-fundamental requirements and associated conditions of partiCipation. Focus initial attention on the fundamental requirements of the conditions of participation for:
42 CFR 483.420 Client Protections

Fundamental requirements: 483.420(a)(2) - (7) 483,420(a)(9) 483,420(a)(11) - (12) 483.420(c)(1) - (6) 483,420(d)(2) - (4)

W124 - W130 W133 W136 - W137 W143 - W148 W153 - W157

42 CFR 483.440 Active Treatment Services

Fundamental requirements: 483,440(a)(1) ~ (2) 483,440(c)(2) 483,440(c)( 4) 483.440( c)(6)(i) 483.440(c)(6)(111) 483.440( c)(6)(vi) 483,440(d)( 1) 483,440(f)(1) 483,440(f)(3)(i) - Oi)

W196 - W197 W209 W227 W240 W242 W247 W249 W255 - W257 W262 - W263

In addition include:
483.41 o(d)(3)
483.430(d)(2) 483,470(g)(2) 483.470(i)(4)

W120 W186 W436 W448 - W449

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42 CFR 483.450 Client Behavior and Facility Practices

Fundamental requirements: 483,450(b)(2) 483,4S0(b){3)

W285 W286 - W288

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483 ,450(c)( 1) 483,450(c)(3) 483,450(d)(4) 483,450(e)(3) 483,450( e)( 4 )(i)

W29i W293 W30i - W302 W313 W314

42 CF:.R 483.460 Health Care Sexyices

Fundamental requirements: 483,460(a)(3} 483.460(c) 483,460( c)(3)(v} 483,460(9)(2) 483,460(k)(2) 483,460(k)(4)

W322 W331 W338 W356 W369 W371

All fundamental requirements must be reviewed in every annual recertification survey. When observations and interviews are complete, review the individuals' records, as needed, to verify observation and interview findings. If indicated, verify that individual health needs are met and protections are in place. When the fundamental reqUirements are "met", the facility meets the Conditions of Participation.

When fundamental requirements are "not met", review the condition-level compliance principles found in the interpretive guidelines for W122, WigS, W266, and W318. Determine whether deficiencies at the fundamental requirements, when viewed as a whole, lead you to believe that one or more of the "not met" compliance principles is present. If this is the case, conduct an extended survey, as instructed below. When the "met" compliance principles are present, the facility is assumed to be in compliance with all conditions of participation. This is the end of the fundamental survey. The survey agency would prepare a Form HCFA-2567, Statement of Deficiencies, and report any standard-level deficiencies based on the findings from the fundamental survey.

S. Extended Survev..--An extended survey is conducted when standard-level deficiencies are found during the fundamental survey and the survey team has determined or suspects that one or more Conditions of Participation examined during the fundamental survey (42 CFR 483.420,42 CFR 483.440, 42 CFR 483,450, and 42 CFR 483,460) are "not met." The team would need to gather additional information in order to identify the structural and process requirements that are "not met" and to support their condition-level compliance decision. The team reviews all of the requirements within the Condition(s) for which compliance is in doubt. Using the condition-level compliance principles in the interpretive guidelines as a guide, determine if the facility complies with the relevant Conditlon(s) of Participation.

When the survey team determines that the facility is in compliance with the relevant Conditions of Participation, conclude the survey and prepare a HCFA2567 for facility practices not in compliance with standards. When the facility is not in compliance with one or more Conditions of PartiCipation, prepare a HCFA2567 describing the deficient facility practices which are not in compliance with the Conditions of Participation of either 42 CFR 483,420, 42 CFR 483,440, 42

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Conditions of Participation is at the option of the survey agency based on the
criteria under paragraph "c" of this section.
NOTE: Neither the fundamental or the extended survey process preclude the survey agency from review of any standard, if evidence of non-compliant facility practice is suspected during any survey.

C. Full Surve¥.--A full survey is conducted at an initial survey and at the discretion of the survey agency, based on the survey agency's identification of concerns related to the provider's capacity to furnish adequate services. This decision may be based on criteria, including but not timited to, the following:

o A condition-level deficiency on the previous year's recertification su rvey I
o The existence of a time-limited agreement of less than twelve months due to programmatic defiCiencies, or

o Evidence related to diminished capacity to provide services based on other sources, such as complaints, inspection of care findings or State licensure deficiencies that are relevant to Federal requirements.

The team reviews all the requirements in all Conditions of Participation to determine jf the facility maintains the process and structure necessary to achieve the required outcomes. Based on the information collected, determine whether facility practice is in compliance with all Conditions of Participation.

IV. COMPONENTS OF ACTIVE TREATMENT

The definition of "active treatment in intermediate care facilities for persons with mental retardation" in 42 CFR 435.1009 refers to treatment that meets the requirements specified in the standard for active treatment 42 CFR 483,440(a). The components of the active treatment processare:

A. Comprehensive Functional Assessment_(42 CFR 483,440(!;}(3)J..--The individual's interdisciplinary team must produce accurate, comprehensive functional assessment datar within 30 days after admissionr that identify all of the individual's:
o Specific developmental strengthsr including individual preferences;
o Specific functional and adaptive social skills the individual needs to acquire;

o Presenting disabilities, and when possible their causes; and

o Need for services without regard to their availability.

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B. Individual Program Plan QPPL(12CfR 483.440(~n--The interdisciplinary
team must prepare an IPPwhich includes opportunWes for individual choice and
self-management and identifies: the discreter measurabler criteria-based objectives the individual is to achieveand the specific individualized program of
specialized and generic strategiesr supports, and techniques to be employed. The IPP must be directed toward the acquisition of the behaviors necessary for
the individual to function with as much self-determination and independence as
possibler and the prevention or deceleration of regression or loss of current optimal functional status.

C. program ImplementSltion (42 CFR 483.440(d)).--Each individual must receive a continuous active treatment program consisting of needed interventions and services in sufficientintensity and frequency to support the achievement of IPP objectives.

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D. Program Documentation (42 efR 483.44.0JruJ.--Accurater systematicr behaviorally stated data about the individual's performance toward meeting the
criteria stated in IPP objectives serves as the basis for necessary change and
revision to the program.

E. Program Monitoring and Changgj42 CFR 4_83.440(fU.--At least annually, the comprehensive functional assessment of each individual is reviewed by the interdisciplinary team for its relevancy and updated, as needed. The IPP is revised r as appropriate.
V. TASK 1 -SAMPLE SELECTION

A. p_urQose of the SamRle.--The purpose of drawing a sample of individuals from the facility is to reflect a proportionate representation of individuals by the four functional levels (mild, moderate, severer and profound mental retardation) as defined by the American Association on Mental Deficiency, Cla~sjflcation in Mental Retardation(eighth ediUon, 1983).
The sampling process is not designed to produce a "statistically valid" sample. Apply the method with flexibility based upon the prevailing developmental strengths and needs presented by the individuals served by the facility. A "statistically valid" sample would not accommodate this need.
While the individuals in the sample are targeted for observation and interviewr conduct each program audit of the individual within the context of each of the environments in which the individual livesr works, and spends major leisure time. Although you focus on the individual, the behavior and interactions of all other indiViduals and staff within those environments also contribute to the total context and conditions for active treatment. Thereforerother individuals wilf be included in the overall sample.

As the sample is built, additional information about the facility's services and special individual needs may emerge. If you find that a disproportionate number of disabilities or needs are present within the facility'spopu/ation add to or replace originally selected individuals of the same functional level in the

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program audit sample to ensure that the appropriate care and services arereviewed. Staff interview for individual characteristics (see the bacl< of Form HCFA-3070G) may help identify areas of individual need that should be reflected in the sample.
For example, if you discover a significant percentage of individuals are nonambulatory, and this characteristic has not been represented in the sample, add additional individuals. Likewise, if while observing Individual A (a member of the sample), you note that Individual B (who was not targeted for the sample) engages in a particular problematic behavior for which staffdo not appear to provide appropriate intervention, add Individual B to the sample in order to probe further if needs are addressed. You are free by this methodology to add to the sample on an as needed basis.

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B. Sgmple Sizg.--Calculate the size of the sample by the following guidance:

Number of Individuals residing in the Facility: 4-8 9 - 16 17 - SO 51 - 100
101 - 500
Over 500

Number of Individuals in the Samp~e. 50 percent 4 8 10
10 percent
50

Number of Interviews with IndividuCJJLFamily: 50 percent of sample 4 5 5 50 percent of sample (max.: 15) 15

C. SamQ.lS! Selection.--Do not allow the facility staff to select the sample.
1. Facilities Serving 100 or Fewer lndividuals.--Draw a sample that evenly distributes the individuals among buildings and functioning levels. Usually, this can be done by asking the staff to provide a full list of the individuals with their building locatons and functional levels and you choosing the names.
2. Facilities with over 100 individuals.--
o Request a listing of all individuals by overall functional (cognitive and adaptive) level (i.e., mild, moderate, severe, profound) and building location.
o Determine the number of individuals to draw based upon the total Individuals from Section III B.
o Determine the percentage occurrence of each functional level in the overall population (e.g., 12 percent mild; 24 percent moderate; 63 percent severe).
o Determine the number of individuals to draw in each functional

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category tror example, IT me sample size IS ~U, ana 1L. percent or me
individuals have mild mental retardation! then multiply 50 by .12 = 6, and draw
6 individuals who have mild mental retardation into the sample).
o Draw the sample for each functional category. (Assume there are 60 with mild mental retardation, and 6 are to be sampled. Divide 60 by 6 = 10, and draw every tenth individual.) The interval of selection varies with each functional category because there will be a different percentage occurrence at each. Thus, assuming there are 16 indiViduals with severe mental retardation and 4 are to be sampled, draw every fourth name from the list of individuals with severe mental retardation.
o Locate each selected individual's living unit on a map of the facility building(s) to see if too many are concentrated in too few buildings. To provide a comprehensive look at the facility, drop some individuals and add others in other buildings for a better distribution. Eac;:h individual reRlacing_~fl originaLLy- selected individual must be of the same functional level.
3. Alternate~mp1ing Procedur~.--In the rare situation in which the facility is unable to produce the necessary data on which to draw the sample, draw a random sample, to the maximum extent possible. Supplement it as described in Section VA.

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Mental retardation, as defined by the American Association on Mental Retardation CAAMR) in Mental Retardation: Definition, Classification and Sy-stems of SupR-Qrts (ninth edition! 1992), is no longer classified in four functional levels (mild, moderate, severe, and profound.) Most facilities have not yet adopted the 1992 classification system; however, when the facility does use the 1992 classification system and information regarding the four functional levels is not available! revise the sampling procedure. Follow the instructions in A and B above but! instead of using the four functional levels referenced in AAMR's ClaSSification System of 1983J use the four levels of intensity of supports (intermittent! limited! extensive! and pervasive) on Dimension I for Self-Care from the new classification system. Although not equivalent to the 1993 classifications, this method should provide a sample of individuals within the facility who represent a variety of functional abilities.

D. Program Audit ARproach.--To maximize the advantage of an interdisciplinary survey team, the team leader assigns each member an equitable number of individuals on whom to focus. For each individual, assess all applicable fundamental requirements of the ICF/MR Conditions of PartiCipation based on the individual's need for that particular service. Each member of the team shares salient data about findings relative to his or her assigned individuals. Consult with one another, on a regular basis during the survey, to maximize sharing of knowledge and competenCies.

E. Samgling on Follow-up SurvE)Y.--The purpose of the follow-up survey is to

verify correction of deficiencies previously cited on the HCFA-2567. It is NOT

necessary to do a full review of all services being received, only those areas in

which deficiencies were previously cited. Sample selection on the follow-up survey is! therefore, dependent on the nature of the deficienCies for which

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TOIIOW-UP mU!:il: DE:! aonE:!.

If the last survey found multiple standard-level deficiencies that are not limited
to a specific area or issue, follow the procedure described in paragraphs A
through 0 above to select a new sample and use the same sample size specified in paragraph B. This procedure may result in inclusion of some individuals from the previous sample, however, approximately 50% of the sample on the followup survey should be individuals who were not previously reviewed in order to assure systemic correction of the identified deficiencies. This can be accomplished by beginning the interval of selection at a different point on the list of individuals residing at the facility. The maximum sample size on a follow-up survey is 30.

When Conditions of Participation have been found not met in the annual sUlvey and the types of deficiencies are limited to a specific need or service area, then the follow-up sample may be drawn from the specific universe of individuals who have that specific need. To select the sample, start with the total number of individuals affected by the specific need, then choose the sample size. The sample universe will be the total number of individuals who have that specific need. For example, if the facility has 20 individuals receiving medications to manage behavior, the sample size would be 8, in accordance with paragraph B.

VI. TASK 2 -

REVIEW OF FACILITY SYSTEMS TO PREVENT ABUSE,

NEGLECT AND MISTREATMENT AND TO RESOLVE COMPLAINTS

During the entrance conference, determine how the facility resolves individual complaints and allegations of abuse, mistreatment and neglect. While no specific system is required, 42 CFR 483.420(d)(4) does require that the results of all investigations are reported to the administrator and are reported in

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accordance with State law. The facility, therefore, should have a reproducible
mechanism to assure its responsiveness to concerns of individuals and their
families. That system must assure prompt detection, reporting, investigation and resolution of complaints and of allegations and occurrences of abuse, mistreatment and neglect and injuries from unknown sources.

Review the facility's system (e.g" accident and injury logs and reports) for any evidence thai" suggests that individuals are being abused or are vulnerable to abuse and injury. Data that is derived from these reports are important in the event that you find an immediate and serious threat to an individual's health and safety. If you discern any patterns that suggest abuse, fol/ow up on the status and condition of those individuals. Also review investigations completed and those in process to determine that the facility protects individuals from abuse, mistreatment and neglect while the allegation is under investigation. If the State law or regulation requires the facility to report such al/egation to other agencies, determine that this occurs.

Conducting this review early in the survey process facilitates any necessary follow-up during later observations, interviews or record reviews of individuals. Use the Interpretive Guidelines and Additional Data Probes at 42 CFR 483.420 (a)(5) or WJ27 for further guidance. If you believe serious and immediate

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threat to individual's health and satety exists, consult Appendix Q.
VII. TASK 3 - INDIVIDUAL OBSERVATIONS
Upon completion of Task 2, surveyors are to conduct observations of the
individuals selected for the sample. DO NOT:
o Conduct a detailed review of individual's records;
o Conduct an inspection tour of the facility's environment; or
o Request facility staff to keep people home from scheduled activities, such as work or day programs.

A. Purpose. --Determine if the necessary relationship between the individual's needs and preferences, and what staff know and do with individuals, in both formal and informal settings throughout the day and evening, is made,

As a result of any observaNon, the surveyor should be able to determine whether:

o Competent interaction occurs between staff and the individual (s);

o Individuals are given the opportunity to exercise choice and
function with as much self-determinaUon and independence as possible; and

o Staff provide the needed supports and interventions to increase s/(ills or prevent foss of functioning,

The primary purpose of the visit to the out-of-home program is to determine whether the individual is receiving services that promote growth and independence and how the residence assures consistent delivery of services, Generally the out-of-home program and residence should be using the same interventions, communication methods, and behavior shaping strategies. If not, determine the justification for the difference in services, For example, if the day program is using physicaf restraints as an intervention and the home is not, determine the justification for the restraints.

B, $YTvey CQn.ciu.c.t, --Be present when individuals are present. If individuals are in a program other than in the reSidence, go to that location, Observe each person in the sample in the home environment and in the day

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program, Observations across the entire survey (e,g., early morning, afternoon and evening observations) are absolutely essential, One method to conduct observations over thjs Ume span is to aft-er the work day of the survey team members, For example, some members might work from 6:30 a,m, to 3;00 p,m., while others work from 1 :00 p.m, to 9: 30 p.m,

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individuals' development. Use your observations to determine jf individual training is carried out- consistently at all appropriate times throughout the day. Observations of meal times, individuals' communication with staff and others, behavior shaping interventions, and routine activities should reflect a consistent pattern of interaction with the individual and demonstrate the staff's knowledge of [-he individual. Take steps to validate any discrepancies noted. Additional
observations within similar situations, locations or activities may be necessary
to identify a systemic deficient practice as opposed to a one time occurrence.
Show respect for the individuals' home and their privacy. As a courtesy, alway request permission before entering a bedroom. Do not observe activities in which individuals are undressed unless that observation is essential to your assessment of facility compliance and the information cannot be obtained from other reliable sources. Most information about routine hygiene activities during which individLlals are undressed can be obtained through interview of
individuals or staff. As a general policy, it is preferable to ask permission to make these types of observations from the individual, or from the staff person
who is present if the individual cannot communicate. An individual's request
not to be observed while undressed should be honored, when possible. The
surveyor does have authority, however, to access information that is essential
to determining compliance without asking permission. This authority may need
to be exercised in regard to an jndividual who is undressed, for example, in order to observe for bruises or other signs of injury when it is suspected that the individual is being abused. These observations should be conducted in private, with as little of the body exposed as possible, and with a staff person present. Consent from staff or guardians is not required in order to access information or make observations.
For individuals who are working in competitive employment sites, ask the
individual's permission to visit that site. If the individual is unable to
communicate, discuss with the staff the advisability of visiting the competitive site. The intent is that the individual is not identified as different from other workers at the site. If the individual works in a restaurant, for example, you may be able to visit as a "customer" to observe the work environment. If an interview with a job supervisor or support person is indicated, attempt to conduct this interview in a private or inconspicuous area. Upon arrival, introduce yourself to the individual and to the staff and explain the purpose of your visit.
C. ObservatiQn~e{Qcet:i.t!r~. ~~ Initially the surveyor should note the genera! impreSSions of the area. Note things such as:
1. General Impressions.~-
o How are individuals dressed?
o What activities are taking place?
o What materials and supplies are present?
o Is the environment pleasant and conducive to learning? (e. g./ odors, noise, furniture, and adequate bathroom fadllUes)
o How many staff are present? How many individuals?

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a What types of adaptive equipment or assistive devices are used?

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2. S.pecific Activities and IntS!ractions.--After noting the general setting, the surveyor should begin to focus on the specific activities and interactions. For example:

o Are individuals involved and participating in the activity? Are the activities active or passive? Does the activity appear to have a purpose? Are staff able to explain how the activity is promoting greater independence for each of the individuals present?

o Are there supplies and materials used to assist the individuals? Do individuals use the materials? Do they seem appropriate for the task or activity? Are they appropriate for the individuals?

o What interaction is occurring between staff and individuals? Do the interactions give evidence of respect, dignity? Do staff recognize efforts made by the individuals and provide positive reinforcement?

o Is the number of staff present sufficient for the number of individuals based on the individual needs or the type of activity?

o Are individuals encouraged to make their own choices and decisions? Are they encouraged to complete tasks with as much independence as possible? Are staff doing the activity for the person, or is the person encouraged to do things for him or herself?

o respond?

Are any maladaptive behaviors exhibited? How do staff

o Are any individuals ignored or isolated from the activity? If so, what is the reason or justification for this?

3. Individuals in SamRle.--The third step of the observation process focuses on the individuales) in the sample. The surveyor should specifically note:

o What is the appearance of the individual? Is the individual dressed neatly? Does the person appear clean and is his/her hair combed?

o Does the individual exhibit any apparent physical or medical needs? Is the individual over or under weight, edentulous, continent? Does the individual have contractures, vision or hearing impairments?

o What adaptive devices/assistive devices are used? Does the individual use a hearing aid, glasses, plate guard, etc.? Does the device(s) appear to be used correctly?
\'1., o How does the individual move about in the environment? Does
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~II~ IIIU I v I u u a l u::.~ a Wall\.~l, a IIIUUla~~, IIIUV~ III::' UVV II VVII~~IL.llall, ~~L.. r
o How does the person communicate? Does the person talk, use sign or a communication board, make facial expressions or behavioral responses? Do others appear to understand the person's communications?
o What is the person's level of social skill or behavior toward others? What types of interactions occur and with whom? Does the individual exhibit any maladaptive behaviors?
o What are the individual's observed skills relative to the activity or task observed? For example, if observed during dining, does the individual eat without assistance? What utensils

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are used? Are applicable skills developed or encouraged during the activity, such as passing food, pace of eating, social conversations? Is the individual receiving any special diet?

o What level of assistance is provided by staff? What types of assistance are used - verbal prompts, gestures, hand over hand?

o Are there any individual needs that are not being addressed? Are staff aware of the observed needs? Is there a reason it is not being addressed?

4. Areas for Further Observation.--The surveyor will then identify areas to which to pay attention during other observations. Those areas may include any supports, interventions or skills that would be expected to occur conSistently across settings or any apparent needs, concerns or discrepancies noted during the observation. For example, if the surveyor notes that the individual uses sign language for communication, do all staff working with the individual understand and use sign with him/her? Or if an individual is observed to have good gross motor skills, do staff feed the person or perform other tasks for him/her that your observation indicates the person could possibly do independently? Focus interviews and record review based on concerns, issues, inconsistencies and needs noted from these observation(s).

D. pocumentation.--Record your observations, The optional individual observation worksheet (HCFA-30701 (10/95)) may be used. If your behavior or presence disrupts the activity being observed, wait five minutes before recording the observation.

VIILTASK 4 - REQUIRED INTERVIEWS WITH INDIVIDUALS AND/OR FAMILY/ADVOCATE! AND DIRECT CARE STAFF

A. PurRos_~.--Individuals living in the facility, their families/guardians and

advocates, and direct care staff are important sources of information about the

receipt of active treatment on a daily basis, Interviews are conducted for two

purposes: to determine how the individual perceives the services delivered by

the facility, and to clarify information gathered during observations. Only

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..... _ .......... -.. .... _.. ...... - ... -.~ .... - ..... ~, _.,-.. . . . - ..... / ··· .... ··· __ · .../='-_·_·_·· ... r - - · .......... -~--f ........ -
direct care staff count toward the total number of required interviews (as reflected in the sample chart shown in Section 58 - Sample Size).
B. Interview Procedure.--Start with the individual in the sample and the people most closely associated with the individual's daily program implementation. Use the following hierarchy of sources, to the maximum extent possible, in the order shown:

o Individual; o Families, legal guardian, or advocate; o Direct care staff;

o Qualified mental retardation professional (QMRP) and/or professional staff; and

o Managers, administrators, or department heads

Determine from your observations and from the staff how the individual communicates with others. Also determine from the staff the extent of involvement of family members, guardians or advocates with the individuals in the sample. Based on this information, select the individuals from the sample with whom you will conduct more in-depth interviews. Select those individuals who will be able to communicate at least some basic information or those who have actively involved family members, guardians or advocates. Do not exclude from interviews individuals who use alternate means of communication, such as communication boards, sign language, and gestures. Most individuals are able to communicate in some manner. At a minimum conduct the number of in-depth interviews specified in Section V, Task lB.

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Attempt to obtain the required number of interviews first from individuals and then from family members, guardians or advocates. In the absence of individuals who are able to communicate and active significant others, interview the direct care staff person who works most closely with the individual in order to obtain the required number of in-depth interviews.

The questions and communication method will vary from person to person. For individuals who use a specialized communication method, attempt to begin the int'erview on a one to one basis. If you find you are unable to communicate with the individual, ask someone familiar with the person to assist you (e.g., a family member or a staff person.) For this individual, pay close attention to how the staff communicates with him or her. If the person uses sign language or a communication board, do staff understand and interact with the individual using the same method? If the person uses gestures, do staff take time to determine his or her needs?

Family members; guardians or advocates may be interviewed at the facility, at a /

location convenient to both the surveyor and the interviewee, or by telephone.

\'1

All interviews should be conducted in private locations and scheduled at

~ ...

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mutually agreed upon times in order to minimize disruptions to individual, famify, or staff activities.

C. Content of In-depth Interviews. --Determine what- the f-acility does to provide individualized services and supports; and how individuals and families participate in service planning and in making choices about matters important to them. Are individuals treated with respect and dignity? Does the facility attempt to help the person set and attain individual goals? Are there consistent opportunities for making choices? When a choice is not an option, how is the individual assisted to understand? For example, if a planned activity ;s t-o go to a restaurant for dinner, who chooses the restaurant? Staff or the individuals living in the facility? If one group of people does not want to go, how is this choice accommodated? Is the accommodation based on individual choice, staff convenience, or a reasonable justification if a choice is not an option?

See section 0 for suggested interview questions. Unless designated to be directed to a certain person, questions are relevant to whomever is being interviewed (individual, family member, advocate or staff person.) Modify the wording of the questions based on the person being interviewed (individual, family member, or staff) and on the communicaUon skills of that individual. For example, you may discover that the person responds better to questions that can be answered "yes" or "no" than to open~ended questions. Be sensitive to signs that the individual is tiring or becoming uncomfortable and either end the interview or continue it at a later time if this occurs. It is not necessary to ask every question in the guide, but do try to ask at least one question from each topic area.

O. Suggested Interview QU€stiQ[Js.--Ifyotl have not met the person before, begin the interview by explaining who you are and what your role is. To put the person at ease you may want to begin with some general conversationr e.g.( about the weather or a special event coming up. At the end of the interview, if you think you may need to discuss or confirm personal information with staff or famify, ask the person if it is OK to share that information.

1. Ques.tiQns Re:=la.tefL.to_Choice and_Com.munity ParticipCJtion (W136, W147, W247):
o What sorts of things do you (ike to do for fun?

o Do you go out to activities or events in the community ((ike shopping, movies or church)?

o How often do you do this?
a Ho w do you get there?

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o Who chooses where you go?

o Do you go to Visit family members or take vacations?

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o Is there something you would like to do more often?

2. Que$tionsRelflte9' CQ personal Finances anc}Posse$$iQns(W126, W137):

a Do you earn money on your job (at your day program)?

o What do you like to buy with your money?

need?

o Do you have enough money to buy the things you want or

o Does someone help you with spending or saving your money?

o When you go to the store, do you pay for items or does a staff person pay for them?

o Do you have enough clothes and shoes::'

o Do you afways have enough deodorant and toothpaste, etc.?

o What do you do if you need to buy something?

3. Que'jtiof]$JlI!;J§Je(L19PersOf)aJ RelationshipS3])d PriV;Jcy (W129W130, W133, W143 -W148):

o Do you have family or friends who visit you?

o Does your famify write to you or telephone you?
o Does someone help you read their letters/ caff them on the
phone?

a If you feel ;;ke being alone or spending pdvate time with a friend or family where do you go?

o Do staff knock on your door before they come into the room?

For family member/advocate:

o How do you learn about things like the services your family
member receives, an i1Jness or a change in medication?

o Are there any restrictions on when you visit your family member or where you can go within the home?

4. Questions Related to Individual's and Family's Participation in the IPP Process (W209, W247):

o Do you go to (team) meetings with the staff where they talk about the services you get?

a Does your family/advocate come to these meetings?

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o
with you?

Were you asked if the date and time of the meeting were OK

o What would you like to {earn to do for yourse{f?

o Do the staff ask you what you want?

o
o
you want?

Who chooses what you do? Does the staff listen to you and make changes based on what

For staff:

o How do you communicate with this individual?

o What does (s)he like and dislike? How do you know that?

5. QuestiQo$.Be!qtedtQ5ervice Pekvery (W242/ W249, W436):

o What he{p do you need from staff to dress, eat, bathe, etc?

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o therapy)?

Do you get any special therapy (e.g., speech or physical

o What new things are you learning to do?

o What chores do you help with around the house?

o Who helps you when you do not know how to do something?

o What special eqUipment do you use?

6. Questions Related to Individual's Rights and Protectjons: W124W125, W127, W153-W157, W127-W128, W263

o wrong?

Who do you tell if you do not like something, or something is

o Are there rules that everyone who lives here must follow?

a What sorts of things are you allowed to do or not do?

o How does the staff treat you?

o Are staff loud?

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o Does staff yell, swear or hit?

o Do you ever do things you are not supposed to do? What happens then?

o services?

Were you ever asked to give consent for any treatments or

o Were you told the benefits, risks and alternatives?

7. Q_l!~stipns Related to Health Status (W322, W356):

o How often do you see a doctor? A dentist?

o Do you have any health problems?

o Do you take any medicines? Do you know what they are for?

o Is there anything you especially like about living here? Anything you especially dislike?

o Is there anything else you think I should know about what it is like to live here?

E. Interviews to Clarify- Observations.--In the absence of finding appropriate interaction between staff and individuals during observations, it may be necessary to judge whether or not staff are knowledgeable about individual objectives and techniques for implementation of programs. If pOSSible, interview staff following the interval in which the individual was observed with the particular staff member. (For example, if you have just observed Individual A engaging in stereotypical behaviors, ask: "Can you tell me what, if anything, you do when he rocks back and forth?") Ask questions that elicit information about how staff learn what to do with individuals across the spectrum of support and programming activities they are expected to perform. Ask professional staff questions to see if they know how to implement programs for an individual other than their professional discipline (e.g., how to carry through with a behavior program in the midst of communications training).

Ascertain whether the staff are competent to carry out the individual's choices and skill development activity. Is there evidence that programs are in fact being carried out throughout the individual's waking hours? Are interventions revised based on changes in the individual's progress toward goals? If staff cannot demonstrate the skills necessary to implement the individual's programs and choices, if interventions are not being carried out conSistently, or if revisions to interventions do not occur, you have findings that active treatment is not being delivered.

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_ .... _ _ . . . . . . . . . . . . . . . . . . . . . . _ . . . . . . . _ ..... _ . _ _ _ _ , I 1 1 1 " ' _ . "' . . . . . . . . , _ - . ........... _ ............ ..- ....... 11 • • , _ . . . . . . . . _ _ ...... ,
staff, consultants, off-site day program staff, legal guardians, etc., in your personal notes or on the optional observation worksheet (HCFA-3070I). Include the following information in your notes for each interview:

o Date and time of interview;

o Job title and assignment at the ICF/MR;

o Relationship to the individual or reason for the interview; and

o Summary of the information obtained.

IX. TASK 5 - DRUG PASS OBSERVATION

Observe the preparation and administration of medications to individuals. With this approach, there is no doubt that the errors detected, if any, are errors in drug administration, not documentation. Follow the procedure in the interpretive guidelines at W369 for conducting the drug pass observation. Notes on observations of the drug pass may be recorded on Form HCFA-677 (LTC Medication Pass Worksheet) or in the surveyor's personal notes. The purpose of the review is to direct the facility's attention to assuring an error free drug distribution system and away from the paper processes that often do not represent actual errors in medication administration. For the purposes of this task, a "small" facility is one which houses 16 or fewer residents.

X. TASK 6 - VISIT TO EACH AREA OF FACILITY SERVING CERTIFIED INDIVIDUALS

A. PurRose.--By the end of the survey, visit each area of the facility serving certified individuals in order to:

o Ensure that all areas of the facility (including those which are not represented by individuals in the sample) are providing services in the manner required by the regulations.

o Assess generally the physical safety of the environment.

o
protected.

Assess that individual rights are proactively asserted and

B. Protocol.--After individuals in the sample have been assigned to team members, review the facility's map or building layout. Assign members to visit each remaining reSidential and on-campus day program site prior to completing the survey. Insure that each area of the facility that is utilized by individuals has been visited. This visit may be done with or without facility staff accompanying you, as you prefer, and subject to their availability. Record your observations in your notes.

Converse with individuals, family members/significant others (if present), and staff. Ask open-ended questions in order to confirm observations, obtain additional information, or corroborate information, e.g., accidents, odors, apparent inappropriate dress, adequacy and appropriateness of training activities. Observe staff interactions with other staff members as well as with individuals for insight into matters such as individual rights and staff

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responsibilities.
XI. TASK 7 - RECORD REVIEW OF INDIVIDUALS IN THE SAMPLE
A. Introduction.--Do not spend an excessive amount of time looking at fine details in the record review of the selected sample. The purposes are to:
o Verify the applicable information obtained from your observations and interviews;
o Review revisions that have been made to the objectiveSi and
o Verify that needed health and safety supports are in place.

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Do not review in detail the written training programs that are developed for each individual unless you discover serious differences between the record and your observations and interviews. Review those parts of the record most relevant to your purposes as described be/ow.

B. The IndiVidual Program Plan (IPP).--Identify the developmental, behavioral, and health objectives the facility has committed itself to accomplish during the current IPP period, Identify what, if any, behavioral strategies (e.g., behavior modification programs, use of psychotropics) are being used with individuals in your sample. Determine what, jf any, health or other problems might interfere with partiCipation in program services.
C. Progrpml'1.ooitorif)ganq Change. --Skim the most recent interdisciplinary team review notes to identify what revisions were made to the IPP. Determine whether revisions were based on objective measures of the individual's progress, regression, or lack of progress toward his/her objecUves.
D. H~q}tfLqndSafetySl.Jppprt:$.. --Verify, either through the interdisciplinary team review notes or through the most recent nursing notes, that the individual has received follow-up services for any health or dental needs identified in the IPP and check the person's current drug regimen. For individuals with whom restrictive or intrusive techniques are used, verify that the necessary consents and approvals have been obtained.

If this information is consistent with your observations and interviews, conclude the record review. If discrepancies are found, conduct further observations or interviews as needed to verify your findings.

XII. TASK 8-

TEAM ASSESSMENT OF COMPLIANCE AND FORMATION OF THE REPORT OF ICF/MR DEFICIENCIES

A. General.--TheSurvey Report Form (J-fCFA-3070H) is composed during the pre-exit conference and containsthe negative findingsthat contribute to a
determination that an ICF/MR requirement is "not met." Meet as a team, in a
pre-exit conference, to discuss the findings and make conclusions about the
defiCiencies, subject to additional information provided by facility officials.

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Review the summaries/conclusions from each task and decide whether further information and/or documentation is necessary. Ask the facility for additional information or clarification about particular findings, if necessary. Consider information provided by the facility. If the facility maintains that a practice in question is acceptable, request reference material or sources that support the facility's position.

B. T~~:tm Assessment of Comp-'iance.--During the pre~exit conference, the survey team reviews each survey tag numberreviewed during either the fundamentall extended or full survey, and comes to a consensus as to whether or not the facility complies with each requirement. The team reviews all data collected. For each standard determined to be not met, record salient findings on theHCFA-3070H. With the exception of the Life Safety Code Survey, compliance decisions are not made by individual surveyorswhen more than one surveyor has conducted the survey.

C. Anql,>"sis.~~Analyze your findings relative to each requirementreviewed during either the fundamental, extended or full survey for the degree of severity, frequency of occurrence and impact on delivery of active treatment or quality of life. The threshold at which the frequency of occurrences amountsto a deficiency varies. One occurrence directly related to a life-threatening or fatal outcome can be cited as a deficiency. On the other hand,

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a few sporadic occurrences may have so slight an impact on delivery of active treatment or quality of life that they do not warrant a deficiency citation.

The interpretive guidelines contain two types of guidance designed to assist the survey team in analyzing their findings and making consistent compliance decisions:

1, EiJcility Prac.tic.eStatements, --The purpose of facility practice statements is to cJarify the information that is relevant to specific requirementsr and to increase the survey focus on outcomes for individuals. Facility practice statements are provided for those requirements which experience has shown, are difficult to interpret, The practice statements are not necessarily all inclusivel but rather represent the practices most commonly associated with compliance for specific requirements. Each facility practice statement relates directly to the language of the requirement to which it applies. PosWve outcomes identified by the practice statements shoufd be observed in operation in the facility during the survey. When the team's negative findings indicate that a practice is not present, a citation of the requirement may be appropriatel depending upon the frequency and the severity of those findings, Use the practice statements during the pre-exit conference to assist the team in analyzing negative findings and determining the appropriate requirement at which to cite negative findings. When stated in the negative, facility practice
statements may form the basis for a citation on t/7e HCFA-2567.

2. [;QOgitiQO_tt;yeLCQIIJP{ianr.;e Principles, - H The purpose of the compliance principles is to assist in consistent decision-making about facility compliance atJhr;"CQOQitiQn_Q{PNticipaVQn level. The primary focus of those decisions is placed on the outcomes to the individuals and their actual

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experiences of daily life. At each Condition of Participation, the guidelines contain compliance principles which identify those outcomes that must be present in order for the Condition to be found "met," and those outcomes that indicate the Condition is "not met." The compliance principles are based on the
requirements which fall under the Condition. This guidance is NOT to replace professional surveyor judgement. It is possible that the surveyor may
encounter a situation which is not covered by the compliance principles, however, such instances are expected to be rare. In the event the survey team makes a determination that the Condition is "not met, " and the situation causing that determination is not identified in one of the "not met" compliance principles, notify HCFA's Central Office in writing within 10 da ys after the completion of the survey for purposes of review, possible dissemination to other
surveyors, and to ensure consistency within the survey process.
Some of the compliance principles for the Conditions of governing body, facility staffing and physical environment reference other Conditions. Governing body, facility staffing and physical environment tend to address organizational processes which support the provision of active treatment, protection of rights and adequate health and dietary services. Therefore, the governing body, facility staffing and physical environment Conditions are usually "met" unless it is first determined that there are serious deficiencies in services or protections which fall under one or more of the other areas.

After the survey team reviews its positive and negative findings for the requirements within a particular Condition of Participation and determines which of those requirements are deficient, examine the findings for that Condition as a whole. When analysis of these findings leads the team to conclude that· each of the "met" compliance principles for that Condition is present, then the facility is in compliance with that Condition. When analysis

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of the standard level defiCiencies viewed as a whole, leads the team to conclude that one or more of the "not met" compliance principles for that Condition is present for one or more individuals or situations, consider the frequency and the severity ofthe negative finding(s) in relation to the applicable "not met" compliance principle(s) in order to determine whether Condition level noncompliance is warranted.

During the pre-exit conference, the survey team records on the HCFA-3070H those requirements that are determined to be deficient and the findings which support that determination. Write the deficiency statement in terms specific enough to allow a reasonably knowledgeable person to understand the aspect (5) of the requirement(s) that is (are) not met. Do not delve Into the facility's policies and procedures to determine or speculate on its root cause, or sift through various alternatives to prescribe an acceptable remedy. Indicateon the
HCFA-3070H the data prefix tag, followed by a summary of the deficient facility
practice(s). Briefly identify the supporting findings for each deficiency (i.e., transfer to the HCFA-3070H the identifier numbers of all individuals to whom
the deficient practice applies.) It is not necessary to write a fulf description of
the findings on the HCFA-3070H since they will be described in more detail on

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me completea ~tatement or U€rtCienCies (HCrA-":':;b/). it IS necessary to
complete the HCFA-3070H for each survey because the HCFA-3070H is the only document in which the survey team's recomrnendations for deficiencies are recorded (which may be changed later on the final HCFA-2567 as a result of supervisory review) and because not all individual examples may be used on the HCFA-2567. Instructions for the HCFA-3070H are found on page )-18.6.

Alternatively, when the survey team enters its findings directly into a computerized system such as Automated Survey Processing Environment during the pre-exit conference, the statement of deficiencies (HCFA-2567) that is generated ansite at the facility may be substituted for the HCFA-3070H. The HCFA-2567 generated onsite then must contain the information required for the HCFA-3070H and must be clearly marked "DRAFT - SUBJECT TO STATE AGENCY REVIEW" on each page.

XIII - ADDITIONAL SURVEY REPORT DOCUMENTATION (FOR THE FILE)

Upon the completion of each survey, the team leader completes the following additional documentation. This information remains at the survey agency with the HCFA-3070G-H (10/95) in the official file:

A. Summar'y.' Listing of all ICF/MRJndividuals Comprising. the Survey._S~aJnRle (include any additional individuals added to the sample).--At a minimum, identify:

o The name or Medicaid number of each individual chosen to be part of the sample;

o Any individual identifier codes used as a reference to protect the individual's confidentiality; and

o The reason for including the individual in the sample (e.g., "Random Program Audit," "Discharge/' "New Admission/' "Death/, "Abuse Investigation", "Drugs to Control Behavior"). This listing serves as a future reference to any individual identifiers recorded in surveyors' notes, the HCFA3070G-I, and the HCFA-2567.

B. Descripj:ion of the.B..§.Qresentative SamRl~_Selection.--At a minimum, identify, at the time of the survey:
o How the sample was selected;

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o What was the percentage occurrence of each functional level of mental retardation in the facility's overall population;

o The distribution of the individuals in the sample across the facility's living units;

o The number of people in the sample;

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a The number, if any, of individuals substituted in the sample, and the reason; and

a Any other characteristic of individuals served that was
specifically introduced into the sampling process and the reason.

C. Summary of Individual Observations. --Include all individual observation worksheets (HCFA-3070I) and any surveyor notes containing information regarding observations. These notes should include the dates, locations, and starting and ending times for each observation.

D. Summary of Jnterviews.--Include all surveyor notes containing information obtained during interviews with individuals, families, guardians, direct care staff, QMRPs, professional staff or consult"antsf administrators and managers, and others. These notes should identify the person interviewed by name or position, and date and time of interview.

E. Drug Pass Worksheets (HCFA-677) or Surve_),or Notes of the Drug Pass Observation.

F. Other Relevant Facility- Data.--Include other salient data used in support of the survey findings with the HCFA-3070G-H (10/95) (e.g., photographs, affidavits). The survey agency's documentation of the justification for the decision to conduct a full survey must be maintained in the survey agency's file.

XIV. COMPLETING THE REVISED HCFA-3070-G-I (10/95)

ICF/MR SURVEY REPORT FORM (SRF)

Part 1

This is the cover sheet for the ICF/MR SRF which

C307_0Gl~

summarizesdata relative to: facility characteristics;

description of the indiVidual population served; special needs

represented by that population; and essential characteristics

of the survey conducted. Portions of this information are

entered into theOnsiLe Survey and Certification Automated

Reporting (OSCAR) System and used to review trends about

the ICF/MR program nationwide.

General Instructions:
J-18.2

1. Complete all portions of Part 1 onsite, preferably during the first day of the survey. Wort< with the facility to complete the form according W these instructions and to ensure accurate information is obt.ained prior to leaving the facility. 2. If a number is requested (e.g., No. of beds, No. of individuals), and the answer is NONE or ZERO, enter a "0" in the space provided.
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SURVEY PROCEDURES INTERMEDIATE CARE FACILITIES FOR PERSONS WITH MENTAL RETARDATION,

3. If a box is provided to "check one" of the answers provided,

enter a check markA. Abbreviations used: "CEO" means Chief

Executive Officer; "QMRP" means Qualified Mental Retardation

Professional; "MR" means mental retardation; "No." means

number.

5. Regulatory references on the form refer to regulations found

in the Code of Federal Regulations, and refer to regulations applicable to ICFs/MR.

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S~~cific; instr~.tLons:

6. Review all portions for accuracyprior to leaving the facility.

Blocks 1-10, 13-14:
~
Block 11: Block 12:
~-
Blocks 15 (A-M):
Blocks 15 (N-O): Blocks 16 (A-B):
Rev. 278

Enter identifying data, as requested. --~~----------~----------~

Enter the dates of the first and last days of the survey(even if ___thE:!~~ i~a breCl~__in_suryey days).. _
Enter the number describing the ownership/control type in the box ma rked "W6." If "other" best descri bes the facility, specify the other type on the space provided,
(Col. 1): Enter the No. of disciplines that best describe your team's composition. If a surveyor has multiple areas of expertise (e.g., a nurse surveyor who is also a dietitian), include each discipline of expertise. (Col. 2) Enter the No. of disCiplines represented on the team which also qualified as a QMRP (as per 42 CFR 483,430(a)(1)(2)(i)-(iii) and 42 CFR 483,430(b)(S) of the ICF/MR Conditions of Participation.
Enter the number, as requested.

-~--~------~---- ----------~----

----

------

A "Yes" indicates that the CEO directs not only the activities of

the ICF/MR, but also those of another residential services program (e.g., another ICF/MR; anotherMedicare/Medicaid Provider that serves persons with MR regardless of funding

source). A "No" indicates that the CEO of the ICF/MR does not direct the activity of another residential services program for persons with MR. If "Yes" was indicated for 16A, identify the name, address and CEO of the larger organization or agency in 16B (could be the same

information for this ICF/MR in Block 7.) Enter the total bed capacity of all residential services for which the CEO is directly responsibfe (including the ICFjMR bed capacity) in
"W14". Do nQt include beds for which the CEO is indirectly responsible. (For example, in some States the CEO of a State-
operated institution is also indirectly responsible for qJj beds in a region, including those operated by private providers within that region. Do not- include beds directly operated by another agency or organization for the purposes of

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SURVEY PROCEDURES INTERMEDIATE CARE FACILITIES FOR PERSONS WITH MENTAL RETARDATION
W14.) Enter the total No. of individuals residing in the beds (including ICFjMR individuals) in "WiS."

Block 16C:

Enter the No. as requested.

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Block 16 0:

A "Yes" indicates that this ICF/MR (i. e" the beds under this

provider number) is the only house or apartment at the

address stated in Block 2 and is located in close proximity to

other houses or apartments occupied by people who are not

disabfed, A "No" indicates that there is other bed capacity to

provide residential services to persons with disabilities at the

address stated in Block 2 or that this ICF/MR is surrounded by

other buildings or residential units serving people with

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Block 16 E: Block .16 F: Block 16 G: Block 16 H:
Blocks 17 (A-D) :
Block 18 A: Block 18 B: Blocks 20 (A-L): J-18.4

Enter the No., as requested.
Enter the total No. of discrete units. If the ICF/MR encompasses several bldgs, count the total No. of discrete .... living. ~.nitsw!t!?in all buildings.
List the ages of the youngest individual in W20 and oldest in W21.
Each day's program site included in this number should be located off the grounds or campus of the ICF/MR. Any individual going to this program should be scheduled to attend regularly (at least 3 hrs.a day, 2~5 days a wk.). If the day program provides 2 or more programs at the same address, for purposes of this item, consider it one site.
Enter the full time equivalents (FTEs) for each category listed. For 17A, include only staff who provide direct care services to individuals at their living units. Include direct care supervisors only if they are also responsible to provide direct care as part of their duties. (See 42 CFR 483.430(d).) For 17D, include gll personnel, including the No. of direct care and licensed nursing personnel, as well as professional and support staff employed by the facility. To determine FTEs: add the total No. of hrs. worked the week prior to the survey, by all employees identified in each category of 17 (A-D); divide this No. by the No. of hrs. in the standard work week. Express FTEs to the nearest quarter decimal (i.e., ".00", ".25", ".50", and ".75").
----~~--~--------
Enter the No. of individuals in the total sample (i.e., the representative sample and any other individuals added to the ._~.3rnple_ for()t.~e~ rE:C!so.n.~.) ..
Enter the No. of sites visited in which observations of individuals in the sample were completed.
INDIVIDUAL CHARAQE8.ISTICS: The last date of the survey is the date by which age is determined. The term "Total" No. refers to the No. of ICF/MR individuals fitting the
Rev. 278

SURVEY PROCEDURES INTERMEDIATE CARE FACILITIES FOR PERSONS WITH MENTAL RETARDATION
.c;_~.arac.~e.r.!s..tic li~~ecfwf70?re currently Hving/I} ttJefacility.__ .

20 A (1):

Enter the total No, of individuals within each age group regardless of sex.

Blocks 20
A (2):
~---~--
Blocks 20 (B-C):

Enter the No. of individuals by sex and the total. The total should equal the No. entered in 20 (A)(l), Total (W33).
--
Enter the total No. of individuals by each characteristic requested; and the total. Count individuals with more than one disability in every applicable column. Use the following definitions:Autism is a diagnosis whereby the individual exhibits extreme forms of self-injurious/ repetitive, aggressive, or withdrawal behaviors; extremely inadequate social relationships; or extreme language disturbances.

Cerebral Palsy is a diagnosed condition whereby gross and fine movements and speech clarity of the individual may be impaired but performance of activities of daily living is

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.. -.--- ...~--
APPENDIX]

Page 28 of31

functional; or, the individual is unable to perform adequately activities of daily living such as walking, using hands, or using speech for communication.

Mental retardation levels (mild, !]loderqte, severe, and grofound) are described in the American Association on Mental Deficiency's Manual on Cli;tssification in Mental Retardation (1983 edition).

Nonambulator¥ means unable to walk independently.

Mobile nonambulatp.I.¥. means unable to walk independently, but able to move from place to place with the use of such devices as walkers, crutches, wheelchairs, and wheeled platforms.

Nonmobile means unable to move from place to place.

.Epileru>_¥. means a neurological disorder characterized by seizures of motor and sensory movements.

Hard of Hearing means able to hear speech,inc/uding with amplification.

Deaf means unable to hear speechr even with amplification.

Impaired vision meansable to see objects, with correction.

Blind meansunable to see objects.

Blocks 20 (O-K) :

Enter the total No. of ICFjMR individuals who have the following care needs or characteristics: Medical Care Plan (Le., requires 24 hour licensed nursing care as defined at 42 CFR 483.450(a)(2)); Drugs to Control Behavior (42 CFR 483,4S0(b)(1)(iv)(C); Restraints(42 CFR 483,4S0(b)(1)(iv) (8);Time-out rooms (42 CFR

Rev.278

)-18.5

---~----~---~--~--~------------
SURVEY PROCEDURES

INTERMEDIATE CARE FACILITIES FOR PERSONS WITH MENTAL RETARDATION

483,4S0(b)(1)(iv)(A); Application of Painful or Noxious Stimuli

(42 CFR 483,4S0(b)(1)(iv)(D); Attend Off-Campus Day

Programs; Court Ordered Admissions; and the No. Over Age 18

Block 20 L:

with a Legally ApPointed Guardian.

....-~~

If the facility or you believe that a particular individual or

program characteristic that describes the population has not

been requested on this form, identify it, programs provided,

etc., in the space provided. Enter the total Nos. ofindividuals

having this characteristic.

Part 2 (3070-Hl:

REPORT OF DEFICIENCIESUse this part in conjunction with the regulation text and interpretive guidelines. Include basic information on non-compliance. Complete the reportduring the pre-exit conference for all surveys. Record all deficiencies found during the survey. Sign it, certifying that all other facility requirements not documented as deficiencies, are in compliance.
Evaluate each discrete requirement identifiedby a tag number

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------~~-~------------~--

Page 29 of31

Part 3 (J07_Q:.O:

III Lilt:: l ..... r / I · I K Illlt::1 (-II t::lIVt:: ~UIUt::IlIIt::::'. rUI t::o I.. I I IUt::llllllt::U
deficiency: o In the first column, identify the data tag number; o In the second column, write the standard number. If it is a Condition of Participation, enter "CoP" below the standard number. o Identify the deficient facility practice, findings and eVidence in the "Comments" column. o Draw horizontal lines to separate identified tag numbers. o Use as many sheets as needed. o Each surveyor must sign the appropriate certifying statement on the last page of Part 2.
-----~----------
INDIVIDUAL OBSERVATION WORKSHEETPart 3 of the SRF is an optional worksheet that may be used to record and structure observations so that individual data relative to compliance with the statutory active treatment requirement are available for analysis and retrieval. This is completed for each observation as follows:

Heading: Enter requested names, locations, codes, times and dates. Enter "individual codes" only if individuals in the sample are present.

Column 1 - Time: Enter the time of discrete observations or consecutive time intervals.

Column 2 - Observat.Lon: Include the information specified in

Section V-B of this Appendix for each observation (e.g.,

number of individuals; number of staff; activity in progress).

J-18.6

Rev. 278

"
SURVEY PROCEDURES

INTERMEDIATE CARE FACILITIES FOR PERSONS WITH MENTAL RETARDATION

INTERPRETIVE GUIDELINES: TABLE OF CONTENTS

Condition of Participation: Governing body
Standard: Governing body Standard: Compliance with Federalr State and loeallaws Standard: Cllf!!lJJ_r.fi}.'{:Qr(;!~ Standard: ServiC~$provided un(1eragreements with outside sources Standard: Licensure

J-22 J-22 J-23 J-24 1-26 J-28

Condition of Participation: Client protections

J-29

Standard: Protection of clients' rights
Standard: Client finances
Standard: Cpl]Jml.!.flJr:?tlQ.IJ._ wit.h clients, parents, and
guardii![I_$ Standard: Staff tr~~tment of clients

J-29 J-45 J-45 1-48

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APPENDIX]

Page 30 of31

Standard: Qualified mental retardation professional Standard: Professional program services Standard: FilcHity st?ff/ng Standard: l)irfi!c=f;.careresidentiailiving unit staff Standard: Staff training program

J-53 J-55 J-62 J-63 J-65

Condition of Participation: Active treatment services

)-68

Standard: Active treatment Standard: Admissions, transfers, and discharges
Standard: Inc1i¥Lc1y;;!J prQgram plan
Standard: program implementation Standard: Program documentation Standard: Program monitoring and change

J-68 J-71 J-75
)-89
J-92 J-93

Condition of Participation: Client behavior and facility practices

J-100

Standard: Facility practices--Conduct toward clients Standard: M;:Jn;;Jgem..erltp( fnappropriate cJi~l1tjJ.J;~.h.avJor Standard: Time-out (QQms Standard: Physical restraints Standard: Drug usage

J-100 )-102 J-107 J-109 J-113

Condition of Participation: Health care services

J-11

Standard: Physician services Standard: Physil;ian p;!Jrtlcipiltion in the i{}diViPJ.J;;![ program plan Standard: Nursing s~r.vices Standard: Nursing staff Standard: Dental services Standard:Comprehellsb!.e _dentalcIjagnostic ,!.>~rvic.e.$ Standard: C011.1prehenslJt..f: C/f;ntal treatment Standard: Pharmacy services Standard: Drug regimen review Standard: prug aclmi!1istra.tjq..rJ Standard: Drug storage aDcfrecordkeeping Standard: Drug labeling Standard: Laboratory services
Rev.278

J-119
J-122
J-123 J-126 J-127 J-128 J-128 J-130 J-130 )-132 J-136 J-137 J-137
J-19

SURVEY PROCEDURES INTERMEDIATE CARE FACILITIES FOR PERSONS WITH MENTAl.., RETARDATION

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APPENDIXJ

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INTERPRETIVE GUIDELINES: TABLE OF CONTENTS
Condition of Participation: Physical environment
Standard: Client living environment Standard: Client bedrooms Standard: Storage space in bedrooms Standard: (;a~I)Jbi:lthJJ)o!1t$
Standa I'd: Hea. t;ing. anf/ventila tion
Standard: Floors Standard: Space and equipment Standard: _f.m~rgency plj'J}) and procedu.res Standard: t=va.CJJationqrlll$ Standard: Fire protection Standard: Paint Standard: IlJf~-';;.tj.QI).(;Qf1!rQl

J-140
J-140 J-141 J-144 J-145 J-146 J-147 J-147 J-149 J-149 J-151 J-152 J-153

Condition of PartiCipation: Dietetic services

J-155

Standard: FQPJi.i'nc! f!J..!..triti.9JJ.!:>(!rvices Standard: Meal servi.i;~$ Standard: Menus Standard: Dining areas and service
)-20

J-155 J-158 J-160 J-161
Rev.278

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CERTIFICATE OF SERVICE I, Robert H. Farley, Jr., Attorney for the Plaintiffs, deposes and states that he served a
copy of the foregoing Plaintiffs Memorandum of Law by hand delivering a copy to Hinshaw & Culbertson (Attn. Steven M. Puiszis I Michael Leech) 222 N. LaSalle Street, Suite 300, Chicago, IL on December 10,2001.
Robert H. Farley, Jr. Robert H. Farley, Jr., Ltd. 1155 S. Washington Street Naperville, IL 60540 Phone: 630-369-0103 Fax: 630-369-0105 Thomas G. Morrissey Thomas G. Morrissey, Ltd. 10249 S. Western Avenue Chicago, IL 60643 Phone: 773-233-7900 Fax: 773-239-0387
6

 
 ,..1/IttI.' <'. ''•''.:~'.

I l.. IN THE UNITED STATES DISTRICT COURT
l::J FOR THE NORTHERN DISTRICT OF ILLINOIS

l:!- ""'. '.
~

.
J

EASTERN DIVISION

J..4N '7

EDWARD BOUDREAU, by and through his parents, Edwin and Ann Boudreau, et. a1.,
vs.

)

"N:'1'JfJ'.eloJoQ'£ JOI{,

°2tII1.? .. (';

)

.'

.es 8rAll IV G. DI-81l QRAOy

)

/

. '"

~lfl.qr·

) ) ) ) )

No. 00 C-5392

~ l~OIJIfli
..~

JUDGE GRADY MAGISTRATE DENLOW

..t"";'

GEORGE H. RYAN, in his official capacity as )

Governor of the State of Illinois, et aI.,

)

)

Defendants.

)

PLAINTIFFS' MEMORANDUM OF LAW ON FAMILY PARTICIPATION AND STATEWIDENESS UNDER THE MEDICAID ACT

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

Thomas O. Morrissey, Ltd., and submits this Memorandum of Law on Family Participation and

Statewideness under the Medicaid Act.

I. THE MEDICAID ACT REQUIRES SERVICES BE PROVIDED IN THE BEST INTERESTS OF THE RECIPEINTS

This Court has asked the parties to address the issues of Family Participation and

Statewideness under the Medicaid Act. For the convenience of the Court, the Plaintiffs have

appended a Statement ofFacts.which are relevant to the legal issues raised in this Memorandum.

The Medicaid Act requires that the services be provided in a mannel" consistent with

the best interest of the recipients. 42 U.S.C. Sec. 1396a(a)(19) (emphasis added). The

Medicaid Act requires that medical assistance be available in all political subdivisions ofthe

State id. at (1). The Act also mandates that medical assistance be furnished with reasonable

1

promptness to all eligible individuals, id at (8)1, and be available to eligible recipients from qualified providers of their choice, id at (23). Moreover, the Act requires that medical assistance be furnished in the same amount, duration, and scope to all individuals in the group, id. at (10). (See Exhibit "A")
II. FAMILY PARTICIPATION A. Medicaid Services Must Be Provided In The "Best Interests Of The Recipients" The primary purpose of the Medicaid Act is to ensure that care and services are provided in the "best interests of the recipients.,,2 The medicaid programs must provide that "care and services are provided in the 'best interests of the recipients,'" 42 U.S.C. Sect. 1396a(a)(19). Alexander v. Choate, 469 U.S. 287, 303, 83 L.Ed.2d 661, 105 S.Ct. 712 (1985) Although "[m]edicaid programs do not guarantee that each recipient will receive that level of health care precisely tailored to his or her particular needs," the programs offered must collectively be provided in the "best interests of the recipients." Id at 303. InAlexander, 469 at 503, "The District Court found that the 14 day limitation [on-in patient coverage] would fully serve 95% of even handicapped individuals eligible for Tennessee Medicaid, and both lower courts concluded that Tennessee's proposed Medicaid plan would meet the "best interests" standard. That unchallenged conclusion (fu23) indicates that Tennessee is free, as a matter of the Medicaid Act,
Under 42 U.S.C. Sec. 1396a(a)(8) medical assistance must "be furnished with reasonable promptness to all eligible individuals," and these words mean, as now Chief Justice Rehnquist explained in Jefferson v. Hackney, 406 U.S. 535,545,32 L.Ed.2d 285,92 S.Ct. 1724 (1972), that Title XIX "was intended to prevent the States from denying benefits, even temporarily, to a person who has been found fully qualified for aid."
2 Defense counsel representation to this Court that Medicaid and the Supreme Court's decision in Alexander did not require "best practices" (Tr. 568) is not supportable.
2

to choose to define the benefit it will be providing as 14 days of inpatient coverage." In the instant case, the best interests of the developmentally disabled require that they be
offered medicaid residential services (ICFIDDs or CILAs) in their existing community in order to permit them to have a choice to maintain existing relationships with their family, (guardians), friends and community. Unlike the Tennessee Medicaid Plan, the current practice ofD.H.S. does not serve the majority of individuals found eligible for either an LC.F. or C.LL.A. placement in their existing community. Plaintiffs Auer, Jones, Lowrey and Wilsman are appropriate class representatives because consistent with the putative class they seek to represent, their best interest is to receive residential services in their existing communities in order for them to maintain their relationships with their families.
B. Family Participation Is Part Of The Active Treatment Program. Habilitation or active treatment generally refers to programs for the mentally retarded which focus primarily on training and the development of needed skills. Youngberg v. Romeo, 457 U.S. 307, 309 n.l, 102 S.Ct. 2452 (1982). ICFIMR regulations require, as a condition of participation, that "each [resident] receive a continuous active treatment program, which includes aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services ... that is directed toward the acquisition of the behaviors necessary for the [resident] to ftmction with as much self-determination and independence as possible and the prevention or deceleration of regression or loss of current optimal functional status." 42 C.F.R. Sec. 483.440(a) (See Exhibit "B") Each resident must have an individual program plan (IPP) developed by an interdisciplinary team (IDT) based on an assessment of the individual needs of the resident. 42
3

C.F.R. Sec. 483 .440(c) and the family is part of the interdisciplinary team. "Participation by the [resident}, his or her parent (ifthe client is a minor), or the client's legal guardian is required unless that participation is unobtainable or inappropriate." 42 C.F.R. Sec. 483.440(c)(2) (emphasis added). (See Exhibit "B")
C. Experts, State Officials, QMRPs and Service Providers Are In Agreement That It Is In The Best Interests Of The Recipients That Residential Medicaid Services Be Made Available For Persons To Maintain Their Involvement With Their Family/Community.
The best interests ofthe developmentally disabled require that they be offered medicaid residential services (lCF/DDs or CILAs) in their existing community. Research in this field has conclusively demonstrated the importance for people with developmental disabilities to maintain family contact, friendships and if working or seeking work, to have ajob in the community where they grew Up.3 For individuals with developmental disabilities, close family connections are important because: 1) people with close family connections are going to be happier and have better satisfaction; 2) many people with developmental disabilities have a tough time making friends and maintaining social networks; and 3) residential service programs have a high level of staff turnover due to the low pay and demanding work and the turnover rates which can average 43 percent per year which can be traumatic for some persons who may have behavioral problems or who really need structure or who have a difficult time with change. Testimony presented during this hearing is uncontradicted that individuals with disabilities want and need interaction with their parents. Without this interaction with family members, serious behavioral problems
3 This Court has repeatedly asked the Defendants during this hearing whether they intend to offer any expert testimony challenge this finding.
4

arise in adjusting to a residential setting. The participation of the family is an integral part of the active treatment
Geographical proximity is one of the single most important issues that facilitates family involvement. When families live far away, it is a lot more difficult for them to visit and most people with developmental disabilities don't have access to transportation so that they can travel to their families. As a practical matter, a person with developmental disability needs to have the choice of living in an ICF or CILA residential setting in close proximity to his or her family domicile, in order to retain this vital contact with his or her family. 4
D. 'Freedom of Choice' Provision Under The Medicaid Act Permits A Person To Choose A Willing Provider Of Medicaid Residential Services
The present practice of D.H.S. does not offer a person eligible for residential services a choice of providers in the Chicago metropolitan area.

4

In Associationfor Retarded Citizens ofNorth Dakota v. Schafer, 872 F.Supp. 689,

698 (N.D. 1995), the Court recognized in the area of services for the developmentally disabled,

what at one time was considered best practice is now considered today' s minimally adequate and

appropriate level of service. The Court stated:

There is professional opinion regarding the adequate, the reasonable,

the minimum, the appropriate. And there is professional opinion about

a level above that, presently referred to as "best practice." By professional

definition, best practice requires more than the minimum, the merely adequate,

or the merely appropriate. By agreement of the experts, best practice is not

required by law, not even by federal law. But the evolution of professional

opinion inevitably turns today's best practice into tomorrow's minimally

adequate and appropriate level of service. This occurs through the relationship

between academic research and thought, on the one side, and field practice

and experience on the other. There is a constant upward pull as newer best

practices are identified and what used to be the best practices are gradually

adopted as the standard method or approach. At that point, the former best

practices have become the minimum, the reasonable, the ingredients necessary

to a professional judgment of adequacy or appropriateness.

5

42 U.S.C.Sect.l396a(a)(23), provides in relevant part:
A State plan for medical assistance must - -
(23) except as provided in ... section 1915 [42 U.S.C. Sec. 1396n] ... ,
provide that (A) any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community phannacy, or person, qualified to perfonn the service or services required... who undertakes to provide him such services.
The Senate Report, in discussing the freedom of choice provisions, reported their purpose
as follows:
Under the current provision oflaw, there is no requirement on the State that recipients of medical assistance under a State title XIX program shall have freedom in their choice ofmedical institution or medical practitioner. In order to provide this freedom, a new provision is included in the law to require State to offer this choice.... Under this provision, an individual is to have a choice from among qualified providers of services.s
In o 'Bannon v. Town Court Nursing Center, 447 U.S. 773, 785, 65 L.Ed.2d 506, 100
S.Ct. 2467, the Court stated "[Section] 1396a(a)(23) gives recipients the right to choose among a
range of qualified providers, without government interference." The Court further stated:
In ... the Medicaid Programs, the Government has provided needy patients with both direct and indirect benefits. The direct benefits are essentially financial in character; the Government pays for certain medical services and provides procedures to detennine whether and how much money should be paid for patient care. The net effect of these direct benefits is to give the patients an opportunity to obtain medical services from providers of their choice that is comparable, if not exactly equal, to the opportunities available to persons who are financially independent.
Id. at 786.
Due to the chronic shortage ofLC.F. opening in the Chicago metropolitan area and the
5 S. Rep. No. 744, 90th Cong., pt Sess. (1967), reprinted in 1967 U.S.C.C.A.N. 2834,
3021.
6

policy ofD.R.S. to refuse letters of support for the development of new I.e.F. beds to providers, individuals found eligible for residential services have no meaningful choice among qualified providers of services.
E. Defacto Moratorium On New ICFJDD Facilities Denies The Freedom of Choice And Is Governmental Interference In Choosing A Qualified Provider
In Benjamin H v. Ohl, 1999 U.S. Dist. LEXIS 22469 (S.D. W.V. 1999), the Court entered a preliminary injunction against the State of West Virginia for failing to provide developmentally disabled persons with Medicaid services with reasonable promptness. This case involved a challenge of West Virginia's failure to make ICFIDD services available to disabled persons. Since 1989, there had been a moratorium on the development of any additional ICFIMR placements.ld. at p. 6. Later, the State would only approve a person for services under the waiver program if an emergency or urgent need could be shown. ld at p. 19. These actions by the State resulted in immediate and growing waiting lists for intelTI1ediate care level services. ld at 41-42.6
Medicaid beneficiaries argued that this turn of events meant that IeF-level of service were simply not operating in the state in institutional or community settings - even though the state included ICF-level services its state Medicaid plan. In the lawsuit, the beneficiaries alleged violation of the free choice and reasonable promptness requirement. Ordering injunctive relief
6 See: Linton v. Commissioner ofHealth and Environment, State o/Tennessee, 779 F.Supp. 925,936 (M.D. Tenn. 1990) (limiting the number of nursing home beds that could be used for Medicaid patients violated the reasonable promptness provision by causing those patients "to experience extended delays and waiting lists in attempting to gain access to long term nursing home care"). Additionally, in Linton, at 933 , the Court noted that the Health Care Financing Administration (HCFA) had issued an administrative ruling "disallowing a [State] proposal to impose a statewide cap on the total number of Medicaid-certified beds."
7

for the plaintiffs, the court was persuaded that, in this situation, the plaintiffs" are not confined to a limited choice. They have no choice at all, except to languish on a waiting list for one unavailable service or another." Id. at p. 42. The Court rejected the state's claim that the Medicaid Act was not violated because the waiver alternative was not available due to the fact that the demand for slots exceeded the budget for the program. Citing Martinez v. Ibarra, 759 F.Supp. 644, 669 (D. Colo. 1991), the Court stated, "the feasibility of alternatives should not be determined by budgetary constraints. Feasibility must be determined by the recipient's needs and treatment plan, and not solely by the funds available to service that plan." Id at p. 41.
In the instant case, governmental interference by the State ofIllinois denies medicaid residential services to the proposed class. The State has imposed a defacto moratorium on new ICF/DD beds, when there is already a shortage of existing beds in the Chicago metropolitan area. Accordingly, providers ofexisting ICFlDD services such as the Association for Individual Development and the Garden Center for the Handicapped are unable to expand ICFmD services. Moreover, the State has a policy and practice of downsizing and closing existing ICFlDD facilities. The end result is that the proposed class representatives are unable to obtain appropriate ICFIDD services in the Chicago metropolitan area.
Additionally, the State will not permit the class representatives to access medicaid residential services (CILAs) under the waiver program because they do not satisfy the emergency or priority criteria of the State? Even if a person is receiving medicaid waiver services
7 Despite Mr. Puiszis representations to the Court that the priority populations are provided for in the State Medicaid Waiver Plan, the State Medicaid Waiver Plan is silent as to any reference of serving emergency or priority populations. The State Medicaid Waiver Plan specifically provides that the targeted group for waiver services are persons who are "mentally retarded and developmentally disabled" and that the additional targeting restriction is to serve
8

(developmental training), such as Christine Auer, the State will still not permit a person to access
all the services for which a person is eligible under the waiver. See Boulet v. Cellucci, 107
F.Supp.2d 61, 78 (D.C. Mass. 2000) (rejecting the State's argument that providing some services
under the waiver program excuses a State from providing all the services).
III. STATEWIDENESS
A. In Effect In All Political Subdivisions Of The State
In Clark v. Kizer, 758 F. Supp. 572, 580 (E.D. Cal. 1990) aff d in part and vacated in
part on other grounds sub nom., Clark v. Coye, 967 F.2d 585 (9th Cir. 1992), the Court found the
State of California's medicaid dental program was not functioning on a statewide8 basis. The
Court stated:
42 U.S.C. Section 1396a(a)(l) provides that the State Medicaid plan "shall be in effect in all political subdivisions of the State." The implementing regulations requires that each state plan must "be in operation statewide." 42 C.F.R. Sec. 431.50. The plain meaning of "be in effect" would appear to be that the Denti-Cal program shall be "in existence, operational and functioning." See Smith v. Vowell,
379 F.Supp. 139 (w.n. Tex.) aff'd, 594 F.2d 759 (5th Cir. 1974). See
also Morgan v. Cohen, 665 F.Supp. 1164 (E.D. Pa. 1987) (under statewideness provision, services must operate uniformly across the state).
It is undisputed in the instant case that Denti-Cal services do not operate uniformly across the State. No dentists will accept referrals of new DentiCal patients through the telephone referral service in twelve counties. Plaintiffs' Ex. D. Specialists routinely reject Denti-Cal patients in 27 counties and only accepted limited referrals in another 21 counties. See Decls 46-49. It thus appears from the record before the court that the DentiCal program is not in existence and functioning on a statewide basis,
"persons aged eighteen and older." (See Exhibit "D")
S In an educational setting, Statewideness requires that "[t]he State plan must assure that services provided under the State plan will be available in all political subdivisions of the State. (See Exhibit "E" - 34 CRF 361.25)
9

and accordingly, the state is out of compliance with the statewide availability provision.
In the present case, Robert Scanlon, the ranking D.H.S. official in the Chicago Area,
concedes that there are limited choices for ICFIDD services north ofI-80 in the Chicago
Metropolitan area and that it would be very difficult to place a person found eligible for an
ICF/DD in a reasonable period oftime . (Tr. 501)
B. Comparable Services
Melissa Wright, Associate Director of the Office of Developmental Disabilities, testified
that the availability ofICF/DDs in the Chicago metropolitan area is not comparable to the
availability ofICF/DDs in southern Illinois. The opportunities to fmd residential placement for
ICFIDDs in southern Illinois is substantially greater than in the Chicago metropolitan area.(Tr.
1257,l306).
In Clark v. Kizer, id, the Court found the State of California's medicaid dental program violated the comparable9 service provisions of the Medicaid Act. The Court stated:
42 U.S.C. Sec. 1396(a)(10)(B) requires that the services made available to one recipient shall not be "less in amount, duration, or scope than the medical assistance made available" to other recipients. Defendant has admitted that "the availability of dental services for Medi-Cal eligibles and the historical utlization rates of dental services by Medi-Cal eligibles vary from county to county."
In Sabky v. Smoley, 855 F. Supp. 1123, 1142 (E.D. Cal. 1994), "the delay of medical
9 In an educational setting, a school district can demonstrate "compliance with the comparability requirements" by establishing and implementing "[a] policy to ensure equivalence among secondary schools or sites in teachers, administrators, and auxiliary personnel." Also a served school is considered comparable if its average is between 90% through 110% of the average of schools not served with Federal funds awarded under the State plan. (See Exhibit "F" - 34 CFR Part 403 Appendix B)
10

services [methadone services were not available in all counties in the state] to some of the
categorically needy violates the 'amount, duration, or scope' requirement of the comparability
provision...A holding that the State violates Section 1396a(a)(1O)(B) by funding Medi-Cal in
such a way as to create wait lists is not inconsistent with other provisions in the Act and with
cases such as Alexander v. Choate. "
The Court rejected the argument advanced by the State in Sobky at 1140-1141 that the
Medicaid Act did not require comparable services or parity for the individuals seeking services.
The Court stated:
The present language ofthe statute, however, expressly requires that any categorically needy individual receive medical assistance not less in amount, duration, and scope than that received by "any other such individuaL" 42 U.S.c. Sec. 1396(a)(l0)(B)(i). Given "the basic and unexceptional rule that courts must give effect to the clear meaning of statutes as written," Estte a/Cowart v. Nicklas Drilling Co.} 120 L.Ed.2d 379, 112 S.Ct. 2589,2594 (1992), defendants' argument must be rejected. fn. 41. All relevant reported cases and scholarly authority examining Sec. 1396a(a)(1O)(B) support this conclusion. See, e.g. White v. Beal, 555 F.2d 1146, 1149 (3rd Cir. 1977) ("All persons within a given category must be treated equally."); Becker v. Toia, 349 F. Supp. 324, 333 (S.D.N.Y. 1977) (noting that under the comparability provisions of the Act, each categorically needy person "shall be eligible for the same 'amount, duration and scope' of coverage as all the others in his or her group") other cites omitted.
C. Uniformity Of Services Throughout The State
In Boatman v. Miller, 1997 U.S. Dist. LEXIS 6073, at pp. 20-22 (E.n. Mich. 1997), the
Court rejected a challenge to Michigan's medicaid transportation policy, because the differences
in transportation services throughout the 82 counties were due to neutral or natural differences
between the counties. The Court stated:
11

Although a uniformity requirement does not appear anywhere in the statute or the federal regulations, other district courts have held that uniformity is required throughout a State operation of Medicaid programs. See Clark v. Kizer, 758 F.Supp. 572 (E.D. Cal. 1990) (finding that the dental portion of California's Medicaid program violated Sec. 1396a(a)(1) because comparable services were not available in all counties) affirmed in part and reversed in part on other grounds, 967 F.2d 585 (9th Cir. 1992); Morgan v. Cohen, 665 F.Supp. 1164, 1178 (E.D. Pa. 1987) (holding that Pennsylvania's transportation policy that allowed each county to choose between difference procedures and systems was illegal); Turner v. Heckler, 573 F.Supp. 867 (S.D. Ohio) (finding that Ohio violated the Medicaid statute because portions of its Medicaid regulations were implemented at different times in different counties).
Although these cases state that under 42 C.F.R. Sec. 431.50, the Medicaid program must "operate uniformly" throughout all parts of the state, the Plaintiffs read these cases too broadly. None of those cases held that different state counties must spend the same amounts of money on the same services. Such a result would be impossible in large states such as Michigan, given the vast differences in the needs of Medicaid recipients in different counties and the transportation services available. Differences in county expenditures created by neutral factors such as population density, geographic conditions, or availability of public transportation do not constitute illegal non-uniform operation of the transportation. See Morgan, 665 F.Supp. at 1178 (noting that the system was illegal because the differences could not be explained by neutral factors.) Even though different counties may use different resources or spend different amounts of money on each Medicaid recipient, that fact, if due to the natural differences between counties, does not indicate an illegal transportation policy. Therefore, this Court finds that the transportation systems between counties need not be identical. Instead, the Court interprets the holdings of the above cases to mean that Defendants must have one transportation system that is in effect in all counties. Further, Defendants must take steps to ensure that the system is administered in a similar manner in all counties. However, the Defendants are also permitted to leave some flexibility in their program in order to accommodate the inevitable county-by-county and case-by-case differences in needs and resources. (emphasis added)
In the instant case, there is neither uniformity nor comparability oflCFIDD services
throughout the State, which the State readily admits. There are approximately 6,631 ICFIDD
12

beds on a statewide basis, and in the Chicago metropolitan area, there are approximately 2,360 ICF/DD beds. Approximately 67% of the State of Illinois population resides in the Chicago metropolitan area and yet, only 35% of the statewide ICFIDD beds are available in the Chicago metropolitan area. Furthermore, ICFIDD services are not readily available in the Chicago metropolitan area as the facilities are at capacity and the State will not permit the development of new ICF/DDs. Accordingly, the proposed class representatives and class are unable to obtain residential medicaid services with reasonable promptness.
IV. CONCLUSION The Medicaid Act requires care and services be provided in the "best interests of the recipients." In order to ensure this provision, the Act requires statewideness, comparability, uniformity of services and freedom of choice. The testimony of the experts, QMRPs and State officials is that it is in the best interests of the disabled person to be able to receive residential medicaid services in their community. Nevertheless, the State's policy espoused by Melissa Wright is that federal law only requires the State to offer a person from the Chicago metropolitan area, a residential service located in southern Illinois. The State's position is that they will make the choice for the family as to where the services are provided. In order to ensure that services are provided in the "best interests," the regulations require an active treatment program which requires an aggressive and consistent implementation of a program in order for the person to function with as much self-determination and independence as possible and prevent the loss of skill. The family is part of the interdisciplinary team which develops the individual program plan or active treatment program. The regulations also calion family members to monitor the policies, programs and quality of the provider. The experts,
13

QMRPs and service providers agree that supportive family participation is in the best interests of the person. The State recognizes the importance of family and community in their ClLA residential program. Unfortunately, the State flip-flops and takes the opposite position for their lCF/DD residential program and claims that it is appropriate to send a person far away from their community and family. Even if a provider wants to develop a new ICFIDD in the community, the State will not permit this to occur and denies the person the freedom of choice and denies them community services which are in their best interests.
Robert H. Farley, lr. Robert H. Farley, Jr., Ltd.. 1155 S. Washington Street Naperville, IL 60540 Phone: 630-369-0103 Fax: 630-369-0195 Thomas G. Morrissey Thomas G. Morrissey, Ltd. 10249 S. Western Avenue Chicago, IL 60643 Phone: 773-233-7900 Fax: 773-239-0387
14

CERTIFICATE OF SERVICE

I, Robert H. Farley, Jr., Attorney for the Plaintiffs, deposes and states that he served a

copy of the foregoing Plaintiffs Memorandum of Law by hand delivering a copy to Hinshaw &

Culbertson (Attn. Steven M. Puiszis I Michael Leech) 222 N. LaSalle Street, Suite 300, Chicago,

IL on January 10, 2002.

1 ;(j~

Robert H. Farley, J

Robert H. Farley, Jr. Robert H. Farley, Jr., Ltd.
1155 S. Washington Street Naperville, IL 60540 Phone: 630-369-0103 Fax: 630-369-0105
Thomas G. Morrissey Thomas G. Morrissey, Ltd. 10249 S. Western Avenue Chicago, IL 60643 Phone: 773-233-7900 Fax: 773-239-0387

15

 
 I

-# . ,

.....-."'.

,-<.'1

~ ~"'. 1-:.:, .

F- l ... ' IN THE UNITED STATES DISTRICT COURT

I ~

< ·,···i

FOR THE NORTHERN DISTRICT OF ILLINOIS

0 ---..

EASTERN DIVISION

EDWARD BOUDREAU, by and through his

)

parents, Edwin and Ann Boudreau, et. ai.,

)

Plaintiffs,

) )

1'j.64'f.

JAN' '"
7;A {b112

UN/7'EJDUDsGE JOHN G
. tAtES DIS'.r.·

GRAD~

"R1cr

00 C 5392 .

-,COURt

)

vs.

)

JUDGE GRADY

)

I

)

MAGISTRATE DENLOW

GEORGE H. RYAN, in his official capacity as )

Governor of the State of Illinois, et aI.,

)

llnt\{~lfr

)

Defendants.

)

JP.N 1 5 2001

PLAINTIFFS' MEMORANDUM OF LAW IN RESPONSE TO THIS COURT'S ORDER OF JANUARY 11, 2001

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

Thomas G. Morrissey, Ltd" and submits this Memorandum of Law in response to this Court's

Order of January 11, 2001, and states as follows:

I. All The Merits Issues Are Before This Court.

The Plaintiffs are entitled to a reasonable prompt placement in a residential medicaid

setting after being found eligible by the Pre-Admission Screening (PAS) Agency. Under the

Medicaid Act, the Plaintiffs are entitled to receive care and services "in the best interests of the

recipients." 42 U.S.C. Sec. 1396a(a)(19).! The Medicaid Act requires that medical assistance

be available in all political subdivisions of the State id. at (1). The Act also mandates that

! Experts, State Officials, QMRP and Service Providers are in agreement that it is in the best interests of the recipeints that residential medicaid services be made available for persons to maintain their involvement with their family / community. Also, family participation is part of the active treatment program.
1
ld

medical assistance be furnished with reasonable promptness to all eligible individuals, id. at (8),
and be available to eligible recipients from qualified providers oftheir choice, id. at (23).
Moreover, the Act requires that medical assistance be furnished in the same amount, duration,
and scope to all individuals in the group, id. at (10). Under the Rehabilitation Act, individuals
with disabilities are to be placed in the least restrictive setting available. 29 U.S.C. Sec. 794(a);
28 C.F.R. Sec. 41.51(d).
II. The Four Proposed Class Representatives, Individually, Are Entitled To Relief And Have Standing To Act As Class Representatives
The Plaintiffs have brought this lawsuit, individually and on behalf of a class. One of the
proposed class representatives, Douglas Wilsman was found on November 20,2000 to be
Medicaid eligible by the Pre-Admission Screening Agency, Options & Advocacy for McHenry
County, Inc., for an intermediate care facility for the developmentally disabled (ICF/DD) and
eligible for a community integrated living arragement (CILA).
Options & Advocacy for McHenry County is a Pre-Admission Screening Agency and is
an agent of the State of Illinois.2 (emphasis added) Janice Prunier-King, the PAS Agent for
2 59 Ill.Adm.Code Section 120.10 defines Pre-Admission Screening (PAS) agents as follows:
Community agencies ... selected by the Department to act as agents of the Department in carrying out certain federal and State requirements related to the assessment, determination or eligibility, and arrangements for Medicaid-funded services and supports for individuals with a developmental disability. (See Exhibit "A")
The Procedures Manual for Developmental Disabilities Pre-Admission Screening Agencies issued by the Illinois Department of Human Services, states as follows:
The role of the DD PAS agency is to ensure compliance with applicable Federal and State laws, arrange for and conduct assessments, make necessary determinations regarding eligibility for services,
2

.'

.;

Options & Advocacy testified that she has been unable to locate an appropriate ICF/DD which
has a vacancy or opening for Douglas Wilsman.3 Neither has Douglas Wilsman turned down
an ICF/DD placement. Additionally, both Melissa Wright and Edward McManus ofDHS-ODD
refused to approve CILA residential funding for Douglas Wilsman.
Similarly, the other three proposed class representatives, Christine Auer, Leah Jones, and
Susan LO'wrey have been found eligible for Medicaid services and have been unable to obtain a
Medicaid residential placement, be it an ICFIDD or a ClLA. No PAS agency has been able to
locate an ICF/DD provider which has offered to provide Christine Auer, Leah Jones, or Susan
Lowrey residential Medicaid services. 4
All the class representatives have suffered an injury by not receiving a prompt medicaid
residential placement, be it an ICFIDD or CILA. The Defendants are required to comply with
educate individuals and families, and make referrals and provide linkage to appropriate and needed services. (See Exhibit "B")
3 Sheltered Village, an ICF/DD provider refused to serve Douglas.
4 The claim by the Defendants lawyer, Michael Leech, that the proposed class representatives have been presented ICF/DDs which are available to them is not supported by the record. No PAS Agent has located an ICFIDD provider that has offered to serve any ofthe class representatives.
MR. LEECH: What we find is with the four people who have been added, who we learned about approximately three weeks ago were going to be plaintiffs in this case, of those four people they have - - the best way I can put it is, the issue is not availability. The issue appears to be preference. And that's the difference between whether there is any kind of arguable case or not.
THE COURT: What do you mean by the issue being preference rather than availability?
MR. LEECH: ... But they are not willing to take other options that are made
available to them. (See Exhibit "c" - Transcript of October 17, 2001)
3

the provisions ofthe Medicaid Act. See Wilder v. Virginia Hasp. Assn, 496 U.S. 498, 502 (1990); Alexander v. Choate, 469 U.S. 287,289 n.l (1985). One of those statutory provisions is section 1396a(a)(8), which provides in its entirety:
A State plan for medical assistance must (8) provide that all individuals wishing to make application for medical assistance under the plan shall have the opportunity to do so, and that such assistance shall be furnished with reasonable promptness to an eligible individuals. 42 U.S.C. Sec. 1396a(a)(8).
The implementing regulations promulgated by the federal Department ofHHS pursuant to the Medicaid Act elaborate upon the state's obligation to act upon Medicaid applications with reasonable promptness. 5 The regulations make clear that no undue delay may occur in the application for services.
The right created by section 1396a(a)(8) to receive "medical assistance" with "reasonable promptness" applies to all the Medicaid services for which the Plaintiffs in this case are eligible. The reasonable promptness provision extends beyond the application process itself to the provision of services as well. Doe v. Chiles, 136 F.3d 709, 721 (11 th CiT. 1997).
5 A corresponding regulation provides that the responsible state agency "must," among other things, "[fJumish Medicaid promptly to recipients without any delay caused by the agency's administrative procedures." 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. 435.91 I (a) (1996). These period are not to exceed "[nJinety days for applicants who apply for Medicaid on the basis of disability" or "[f]ortyfive days for all other applicants." 42 C.F.R. Sec. 435.911(a)(1)-)(2) (1996). (emphasis added) Moreover, the agency "must not use the time standards" as "a waiting period." 42 C.F.R. Sec. 435.911 (e)(1) 1996.
4

,
II. Class Certification Is Appropriate In This Cast: A. Numerosity Plaintiffs satisfy the numerosity requirement. The evidence is hundreds and hundreds of persons are waiting for residential Medicaid services. Association for Individual Development, Garden Center for the Handicapped, Clearbrook and Misericordia have persons waiting for ICF/DD services. Geri Pinzine, of Options & Advocacy, testified that there are persons who have been found eligible for Medicaid services by her agency and who have been unable to obtain ICF/DD services. Moreover, the Defendants acknowledge that numerosity can be satisfied if only 30 or 40 persons are seeking services. 6 Common sense assumptions may be used to support a finding of numerosity. Scholes v. Stone,E McGuire & Benjamin, 143 F.R.D. 181, 184 (N.D. Ill. 1992) citing Grossman v. Waste Management, Inc., 100 F.R.D. 781, 784 (N.D. Ill. 1984) In Boulet, 107 F.Supp.2d at 80, where the Court certified a class action on behalf of the developmentally disabled, the Court stated that "individual joinder would be impractical, especially in light of the particular circumstances ofplaintiffs' medical and financial circumstances." In the instant case, the Plaintiffs satisfy the numerosity required. B. Commonality and Typicality In Boulet, 107 F.Supp.2d at 81, the Court stated "[w]hile the plaintiffs have unique
6 MR. LEECH: ... In that regard, I would see you [JUDGE GRADY] looking at two issues. One would be the issue that classically arises in the setting of a class action, which is numerosity. Ifthere were only three persons, that isn't enough. If you get 30 or 40, why, you are in class action territory. (See Exhibit "D" - Transcript of December 6,2001 at p. 835-836) 5

medical and support requirements, this dos not change the fact that this class action raises the same basic claim stemming from deficiencies in the operation of the Commonwealth's Plan." In
Benjamin H v. Ohl, 1999 U.S. Dist. LEXIS 22454 at *9, the Court stated:
The defendant maintains that there is no common question of law or fact because some members of the class need a different type or a different amount of care; some members of the class are currently receiving care while on the wait list, while others are not; and some' are on the waiting list in the planning stage and will not need treatment until the future. The Court is of the opinion that these subtle differences noted by the defendant are insufficient to find that the class members share no common issues of law or fact. The Rule does not require that each and every class member have identical factual and legal situations. Where a question of law refers to standardized conduct by the defendants toward member
ofthe proposed class the commonality requirement is usually met. Patrykus v. Gomilla, 121
F.R.D. 357,361 (N.D. Ill. 1988) citing Franklin v. City a/Chicago, 102 F.R.D. 944, 949 (N.D.
Ill. 1984).
Plaintiffs satisfy the commonality and typicality requi:rement.
C. Adequacy of Representation
The agents of the State of Illinois, the Pre-Admission Screening Agency admit that the
four proposed class representatives have all done what was asked ofthem in seeking ICFIDD
services. No Plaintiff has turned down an offer ofICFIDD placement. These four Plaintiffs
have standing to adequately represents the interests of the class. There is no conflict of interest
between the claims of these Plaintiffs and the class as the Defendants are required to provide a
prompt lCF/DD placement or satisfy this entitlement with a prompt ClLA placement.
The Defendants do not contest that counsel for the Plaintiffs are seasoned attorneys in
complex litigation, including Section 1983 claims, civil rights, rights of the disabled and class
6

litigation. Plaintiffs satisfy the adequacy of representation requirement. D. F.R.C.P. 23(b)(2) The Defendants have acted on grounds generally applicable to the Class, by not providing
the full range of residential Medicaid services in either an appropriate ICFIDD or CILA. In Boulet, 107 F.Supp.2d at 81, the Court stated that 23(b)(2) certification was appropriate because "defendants are acting or refusing to act in a manner that is 'generally applicable' to the entire class." Likewise, in Benjamin H v. Ohl, 1999 U.S. Dist. LEXIS 22454 at *12, the Court stated:
This case fits squarely into the requirements of Rule 23(b)(2). The defendant, in her official capacity, has acted and may act in the future in a manner that affects the entire class' ability to receive needed benefits in a timely manner. The effects on the class members are uniform, and the plaintiffs are seeking declaratory and injunction relief that will benefit the class as a whole. The Plaintiffs have satisfied Ru1e 23(b)(2).
III. The Availability Of ICFIDD Beds The issue of the availability or lack of availability oflCFIDD beds and where they are located address is being addressed upon the Defendants insistence that this Court conduct a Szabo hearing to prove their claim that there are appropriate ICF/DD beds available for the four class representatives. Plaintiffs have put on evidence before this Court to refute Defendant's claim. The issue of whether there are available ICFIDD beds and where they are located addresses both the merits of the case and the issue of class certification. The merits issues relate to "best interests of the recipients;" "freedom of choice;" "statewideness;" and "comparability
7

.~J
-'
and uniformity of services." For purposes of class certification, if there were available an
appropriate ICFIDD bed for the four proposed class representatives and the putative class, then
their would be no class and no injury.
In order to prevail on the motion for class certification, the Plaintiffs do not have to prove
that there are in fact fewer vacancies in the relevant geographical area than are necessary to service the number of eligible applicants. 7 However, in this 4;ase the Plaintiffs have litigated the
issue and proved that there are fewer vacancies that are necessary to service the number of
eligible applicants. The Defendant, Melissa Wright, is "certain there are eligible people on
various lists throughout the Chicago metro and the rest of the state." In response to the Court's
question, "Is that a problem,?" Ms. Wright replied, "It's a problem in terms of people with
disabilities who want services who can't necessarily get them where they want them. Yes. That
is a problem." (Tr. 1506-1507) In 1999, Connie Simms ofDHS-ODD contacted Gary Smith
of the National Association of State Developmental Directors (NASDDS) and he estimated that
there were between 4,000 - 6,000 persons in the State of Illinois seeking residential services. (Tr.
7 See Newberg on Class Actions (3 rd Edition) Sec. 7.20 Prma Facie Showing of Class Entitlement. "It is generally accepted that Rule 23 should be liberally construed. Furthermore, Rule 23 contemplates a prompt class ruling by the court, often at the pleading stage. Given these factors, allegations of class facts, viewed in the light of attending facts and circumstances, are usually sufficient for a prima facie showing of entitlement to maintain a class action."
Newberg, Sec. 7.26 states: "No matter how the initial class determination is raised, burden or proof concepts, if applicable at all concerning class facts, are governed by familiar principles and are not affected by the identity ofthe moving party. This rule is in contrast to the general rule that the moving party has the burden of proving facts in support of its motion. (fn) Class action determinations, by contrast, relate to whether a procedural device which has been invoked may be maintained under Rule 23 criteria. The accid.ent of how this determination is precipitated is not of significance for burden of proof concepts, (fn) because the class proponent, usually the plaintiff, has the initial burden of demonstrating satisfaction of the Rule 23 requirements."
8

.<
1508-1510) Jeri Johnson ofDHS-ODD testified that Lynn Handy ofDHS-ODD and herself have heard from service providers that there are hundreds; thousands of developmentally disabled persons seeking residential services. (Tr. 752)
The unrebutted evidence at the hearing has clearly demonstrated that there are not enough ICF/DD openings or vacancies to provide services to the hundreds and hundreds of person who are seeking residential (ICFIDDs) services. Ms. Wright testified that there were only 18 ICFIDD vacancies in the Chicago metropolitan area in December, 2000 and only 18 in December,2001. (Tr. 1517) The ICF/DDs in the Chicago metropolitan area are in excess of 99% occupied. (Tr. 1517-1518) In December, 2001, the DHS-ODD Statewide vacancies for ICF/DDs was approximately 167. (249 less the 87 shown for Pediatric Rehabilitation Institute which is not an acceptable provider per Ms. Wright) 8 The rCF/DDs in the State of Illinois are approximately 97.5% occupied (6600 Statewide private ICFIDDs)
The purpose of evidence being offered by the Plaintiffs during this hearing concerning the issue of the availability of ICFIDD beds is in response to DeD!ndants claim that the class representatives have no standing because there are available ICF/DD beds for them and they have suffered no injury. In Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976), the Court stated:
That a suit may be a class action, however, adds nothing to the question of standing for even named plaintiffs who represent a class "must allege and show that they personally have been injured, not that the injury has been suffered by other unidentifiable members of the class to which they belong and which they purport to represent. 426 U.S. at 40 n 20 (quoting Warth v. Seldin, 422 U.S. 490, 502 (1975»
8 See Exhibit '"NN" - Volume V - Plaintiffs Exhibit Books. 9

In the instant case, the Plaintiffs have shown that they have personally been injured by the denial of medicaid residential (ICFIDD) services.

Robert H. Farley, Jr. Robert H. Farley, Jr., Ltd.. 1155 S. Washington Street Naperville, IL 60540 Phone: 630-369-0103 Fax: 630-369-0195
Thomas G. Morrissey Thomas G. Morrissey, Ltd. 10249 S. Western Avenue Chicago, IL 60643 Phone: 773-233-7900 Fax: 773-239-0387

Respectfully subm' d,
--f/&I
One of the Plaintiffs ""~"IO~U

10

59 IlL Adm. Code 120.10 Definitions
-..::.,

Page 1 of3

Illinois Administrative Code

::J lllinois Admini$trative Code ::J TITLE 59: MENTAL HEALTH
~ CHAPTER 1: DEPARTMENT OF HUMAN SERVICES
~ PART 120 MEDICAID HOME AND COMMUNITY-BASED SERVICES WAIVER

PROGR.L\M FOR INDIVIDUALS WITH DEVELOPMENTAL DISABILITIES ...:.J SUBPART A: GENERAL PROVISIONS

[Previous Document in Book]

[Next Document in Book]

59 Ill. Adm. Code 120.10 Definitions

ror the purposes of this Part, the following terms are defined:

"Code." The Mental Health and Development Disabilities Code 405ILCS 5.

"Community integrated living arrangement (CILA) .~' A living ~ngemen!:;. provided by a licensed community developmental disabilities services agency where eight or fewe]: individuals with a developmental disability reside under the~rvision of the agency,. Individuals receive a customized array of flexible habilitation or personal care supports and services in the home, in day programs and in other community locations under the supervision of a community support team within the local agency. 210 ILCS 135/3(d)

"Communi ty living facility (CLF)." A facility geared to assist the individual in preparing for independent living. Emphasis is placed on teaching the in0ividual adequate social and daily living skills. Individuals are involved in practical experience~. in community living and are guided in planning for and using leisure time and developing the ability to functiQn independently in the community. Community living facilities are limited to no more than 20 individuals, age 18 or older (Community Living Facilities Licensing ]l,ct 210 ILCS 35).

''-Comrmmi ty residential alternatives (CRA)." lLgJ::ou~_~.J_ as defined in the Community Residential Alternatives Licensing Act 210 ILCS 140, LQ.L_~ight or fewer adults with developmental disabilities who
are unable to live independently but are capable of community living
if provided with an appropriate level of supervision, assistance and ~~port services. A community residential alternative may provide ~rainj....Il9- and guidance to individuals in the skills of daily I i ving ~sL __§b,all provide opportunities for _ participation in community
~ctivities. A community residential alternative shall not be a
medical or nursing facility. 210 ILCS 140/3(4)

nConfidentiality Act."

The Mental Health and Developmental

Disabilities Confidentiality Act 74 0 I LC S 11 0 .

nDays.n Unless otherwise indicated, means calendar days.
nDepartment. n The Department of Mental Health and Developmental Disabilities.

"Developmental training." A day program thOlt focuses on the development and enhancement of dOlily living skills such as motor development, dressing, grooming, toileting, eating, language, reading and writing, quantitative skills, capacity for independent living, economic self-sufficiency and reduction of malada:?tive behaviors.
"Director." The Director of the Department of Mental Heal th and

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\' .59 IlL Adm. Code 120.10 Definitions

Page 2 of3

~Grant agreement." When fully executed the obligating instrument providing the basis for Departmental financial participation in grant-in-aid programs and which formalizes the contractual relationship between the Department and the provider indicating the amount of Department funds which will be paid to the provider for the provision of services as described in the grant agreement and the agency plan. Requirements for grant-in-aid funded providers are contained in the Department's rules at 59 Ill. Adm. Code 103.

~Guardian." A person appointed by the court as the plenary or limited guardian or conservator of the individual for an individual over age 18 so long as the limited guardian's duties enco~pass concerns related to service requirements or the natural or adoptive parent of a minor or a person acting as a parent of a minor.

"Habilitation." An effort directed toward the alleviation of a (:t<;;vel.opmental disability or toward increasing th'3 ).evel of physical, mental, social or economic functioning of a~ individual with a developmental disability. Habilitation may i~clude, but is not limited to diagnosis, evaluation, medical services. residential care, day care, special living arrangements, training,_ education, sheltered emplo~L supported employment, protective ser-_ices, counseling and other services provided to individuals with deve10pmental disabilities by developmental disabilities facilities. (Section 1-111 of the Code)

"Home individual program (HIP)." A program which provides support and

training to one or two individuals with developmental disabilities in

a home environment.

.

"Individual."

A person with developmental disabilities who is

requesting, is receiving or has received services under this Part.

"Individual service/support plan." A written plan of care, consistent with the individual's diagnosis and needs, which describes the habilitation goals and a projected timetable for their attainment and the services/support to be provided as defined in Section 4-309 of the Code.

"Intermediate care facility for the mentally retarded (ICF/MR)." Medicaid-certified long-term care facility as defined by 42 CFR 440.150 (1994) serving individuals with developmental disabilities. ICF/MR includes community facilities licensed by the Department of Public Health for skilled/pediatric nursing (77 Ill. Adm. Code 390) (if certified as ICF/MR), intermediate care for the developmentally disabled (77 Ill. Adm. Code 350), intermediate care for the developmentally disabled with 16 beds and under (77 Ill. Adm. Code 350) and State-operated developmental centers.

"Mental retardation." Significantly subaverage general intellectual functioning which exists concurrently with impairment in adaptive Q.,?havior and which originates before the age of 18 years. (Section 1-116 of the Code)

"Nursing facility." A Medicaid-certified long-term care facility. Nursing facilities include facilities licensed by the Department of Public Health for skilled/pediatric nursing (77 Ill. Adm. Code 390) (unless certified as ICF/MR), intermediate care and skilled nursing (77 Ill. Adm. Code 300) .

"Pre-admission screening and resident review (PASARR) agents." Community agencies or units of local government selected by the Department to act as agents of the Department in carrying out certain federal and State requirements related to the assessment,

A

.. .ldocview.htp?Query=%28%28%3CWORD%3E120.1 O+%29%:3 CfN%3EGB%29&SrcQuery= 12/9/01

PROCEDURES~UAL
FOR DEVELOPMENTAL DISABILITIES PRE-ADI\11SSION SCREENING AGENCIES
July, 2000
Office of Developmental Disabilities Illinois Department of HUInan Services
MDrh 000100

Procedures Manllal .fpr DD PAS Agencies .

Tnt roduction

INTRODUCTION

010.00

AUTHORITY AND RESPONSIBILITY

This manual provides the policies and procedures to be followed by Developmental Disabilities Pre-Admission Screening (PD PAS) agencies as set forth in the following documents:

(1) the Omnibus Reconciliation Act of 1987;

(2) the Illinois Nursing Home Care Act (210 ILeS 45/2-201.5);

(3) Illinois Department of Public Aid Rule 89, lUinois Administrative Code 140.642 (Screening Assessment for Nursing Facility and Alternative Residential Settings and Services);

(4) the State of Illinois Department of Human Services Community Service Agreement; and

(5) 89 Illinois Administrative Code. Part 144 Omtermediate Care Facility/Mental Retardation.

020.00

ROLE OF PAS AGENCIES

The role of the DD PAS agency is to ensure compliance with applicable Federal and State laws> arrange for and conduct assessments. make necess~l1)' determinations Iegard~g eligibility for services, educate individuals and famllies, and make referrals and provide linkage to appropriate and needed services. The PAS process will prevent inappropriate admissions to long tenn care facilities (nursing facilities and Intennedhte Care Facilities serving persons with Developmental Disabilities [ICFDDs] ) and inappwpriate enrollments in waiver programs.

July. 2000

lntroduction

/i2. Intro 1

MDrh 000102

If

"- "

1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

2

EASTERN DIVISION

3

EDWARD BOUDREAU, by and through

his parents nfr Edwin Boudreau

4

nfr Ann Boudreau, et al.,

Docket No. 00 C 5392

5

Plaintiffs,

6

v.

7

GEORGE H •. RYAN, in his official

capacity as Governor of the

8

State of Illinois, et al.,

Chicago, Illinois October 17, 2001 9:30 o'clock a.m.

9

Defendants.

10

TRANSCRIPT OF PROCEEDINGS - MOTIONS

BEFORE THE HONORABLE JOHN F. GRADY

11
APPEARANCES:

12

13

For the Plaintiffs:

ROBERT H. FARLEY, JR., LTD., by MR. ROBERT HUGH FARLEY, JR.

14

1155 South Washington

Naperville, Illinois 60540

15 MR. THOMAS G. MORRISSEY

16

10249 South Western Avenue

Chicago, Illinois 60643

17 For the Defendants:

HINSHAW & CULBERTSON, by

18

MR. MICHAEL· JOHN LEECH

222 North LaSalle Street

19

Suite 300

Chicago, Illinois 60601

20

HINSHAW & CULBERTSON, by

21

MS. RENDI L. MANN-STADT

400 South Ninth Street

22

Suite 200

Springfield, Illinois 62701

23

ALEXANDRA ROTH t CSR t RPR

24

Official Court Reporter

219 South Dearborn Streett Room 1744-A

25

Chicago, Illinois 60604

(312) 294-0134

....

3

1 proceed as a class action, your Honor should make what factual

2

inquiries are necessary. We think that would help, put the

3 parents, the guardians of the disabled on the stand that they

4

can adequately represent the class.

5

THE COURT: Mr. Leech?

6

MR. LEECH: Your Honor, this motion is one that

7

essentially is trying to cut us off from being able to do

8 discovery in order to address that very issue of class 9 certification. As your Honor will remember, you had suggested

10

that it makes sense to start with the strong ones. If you find

11 you are satisfied you have good class representatives there,

12

you can go forward.

13

What we find is with the four people who have been

14 added, who we learned about approximately three weeks ago were

15 going to be plaintiffs in this case, of those four people they

16 have -- the best way I can put it is, the issue is not

17 availability. The issue appears to be preference. And that's

18 the difference between whether there is any kind of arguable

19 cage or not.

20

NOw, having taken the depositions. of the plaintiffs

21 and having documents from the PAS agents is a start to

22 resolving that issue. But the people in the PAS agency

23

THE COURT: What do you mean by the issue being

24

preference rather than availability?

25

MR. LEECH: I'm sorry. Let me explain that.

...

.u.

_,

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What we are finding is t.hat people who don't - - among

2 the plaintiffs being tendered to us who don't have ICF/DD

3 placements, don't have ICF/DD placements because they place

4 limitations on where they are prepared to go. TheY'll be happy

5

to go and accept an rCF /DD placerr~ent at Misericordia or at

6 Lamb's Farm, places that are extr·emely sought after by people

7 in the community: But they are not willing to take other

8 options that are made available to them.

9

THE COURT: Let me interrupt a minute.

10

Mr. Farley, what do you say about that?

11

MR. FARLEY: Judge, we -- to address that, we filed

12 additional factual submissions in support of class

13 certification. We dealt with the issue that rCF/DDs are not

14 readily available. We attached deposition transcript from the

15 state's only people that say there are not plenty of rCF/DD

16 beds in the Chicago metropolitan area. And for one of the

17 plaintiffs who is mildly retarded the state admitted that there

18 are very few beds that would be available. Most rCF/DDs

19 wouldn't take him.

20

So it's not a question of preference, we don't want

21 anything. They sought placement at multiple locations and they

22 can't get in.

23

THE COURT: Let's assume that they can't get in but

24 they are only interested in one place.

25

tic " MR. FARLEY: No, Judge. The facts are that they have

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835 was a transitional plan in terms of how to address this.
THE COURT: All right. Mr. Leech, let me hear from you.
MR. LEECH: Your Honor, I have -- going to ask for your indulgence because I have a whole series of points. Our introspection really consisted of going through the recitation of how you described the issue. You said, if I've got the issue wrong, why, now is the time to tell me, and encouraged us to discuss it with you.
I donlt quite want to put it that waYI but there are -- I think just to read what your Honor said. liThe question is, are there persons who reside in the nine-county area who are eligible for residential services who because of the shortage of appropriate placements, wherever those appropriate placements might be found l are unable to be placed? And if the answer is yes/ then do these four plaintiffs more or less adequately represent the class of such persons?1I
Now, I realize you are doing that off the cuff. But it seemed to us that there were a number of issues that were lurking within that statement. And I want to start at the first part about are there persons. In that regard, I would see you looking at two issues. One would be the issue that classically arises In the setting of a class action, which is numerosity. If there were only t~ree persons I that isn't enough. If you get 30 or 40, why, you are in class action

836

1 territory.

/

2

But there is a second important issue that has to do

3

with the way the plaintiffs are putting on the case. You'll

4

recall in ruling on the motion to dismiss, you had cited the

5

Mallett case and pointed out that an individual denying of

6

services for a failure to follow the state plan, that's not

7 actionable. The Seventh Circuit says so.

8

It's the failure of the plan -- and we have a kind of

9

conceptional problem here. It isn't as if the plaintiffs have

10 pulled out and handed to you the Illinois Medicaid Plan and

11 said, here is where it's missing something. They've gone far

12 outside that. And I understand why. The priority placement

13

guidelines, for instance, are cen~ral to the operation of the

14

waiver part of the plan. And so it's appropriate to go there.

15

But it's a slippery slope down to a series of isolated

16 alleged failures to follow the plan being made out to say,

17 well, here is what the plan shows. So that it seems to me is 18 an issue, do we have something that/s a systemic, if you will,

19 kind of problem?

20

How you measure that I think is a difficult thing for

21 you to struggle with for a couple of reasons. And the law has

22 ways of addressing these things. In the context of employment

23 discrimination, you have a sort of standard operating procedure

24

standard. In the municipal liability c~ses the question is,

25 well, what's the policy of the municipality?

('IJ '(

CERTIFICATE OF SERV)[CE
I, Robert H. Farley, Jr., Attorney for the Plaintiffs, deposes and states that he served a copy of the foregoing Plaintiffs Memorandum of Law by hand delivering a copy to Hinshaw & Culbertson (Attn. Steven M. Puiszis / Michael Leech) 222 N. LaSalle Street, Suite 300, Chicago, IL on January 14,2002.
Robert H. Farley, Jr. Robert H. Farley, Jr., Ltd. 1155 S. Washington Street Naperville, IL 60540 Phone: 630-369-0103 Fax: 630-369-0105 Thomas G. Morrissey Thomas G. Morrissey, Ltd. 10249 S. Western Avenue Chicago, IL 60643 Phone: 773-233-7900 Fax: 773-239-0387
11

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

EDWARD BOUDREAU, by and through his

)

parents, Edwin and Ann Boudreau, et. aI.,

)

)

Plaintiffs,

)

)

vs.

)

)

)

GEORGE H. RYAN, in his official capacity as )

Governor of the State of Illinois, et aI.,

)

)

Defendants.

)

No. 00 C 5392

DOCKETED
DEC 2 8 2001

JUDGE GRADY

MAGISTRATE DENLOW

PLAINTIFFS' RESPONSE TO DEFENDANTS MOTION TO DISMISS PLAINTIFFS
THIRD AMENDED COMPLAINT

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

Thomas G. Morrissey, Ltd., and submits this Response to the Defendants Motion To Dismiss the

Plaintiffs Third Amended Complaint, as follows:

Introduction

The Defendants have requested leave of court to file a Motion to Dismiss the Plaintiffs

Third Amended Complaint. Plaintiffs do not procedurally object to the Defendants being

granted leave of Court to file the Motion to Dismiss the Plaintiffs Third Amended Complaint.

However, the Defendants in the Motion to Dismiss are once again raising the issue of immunity

under the Eleventh Amendment which was previously denied by this Court in denying the

Defendants Motion to Dismiss the Plaintiffs First Amended Complaint on May 1, 2001. The

1
cr/

Defendants did not appeal the order of May 1,2001, denying the claim of Eleventh Amendment immunity under the collateral order doctrine.
The Defendants Claim Of Eleventh Amendment Immunity Relates Back To Their Prior Motion To Dismiss.
The Plaintiffs filed a Third Amended Complaint in order to add four new Plaintiffs to be class representatives. In Olech v. Village ofWillowbrook, 138 F. Supp. 2d 1036, 1044 (N.D. Ill. 2000), Magistrate Schenkier addressed the issue of whether the amended complaint relates back to the date ofthe original complaint.
In determining whether the addition of claims by new plaintiffs will relate back, some courts within this district have applied a four-factor inquiry to determine whether the Rule 15(c) requirements offair notice and lack of prejudice have been met. These factors include whether or not (1) the new plaintiffs claim arose out of the "same conduct, transaction or occurrence" set forth in the original complaint; (2) the new plaintiff shares an "identity of interest" with the original plaintiff; (3) the defendants have "fair notice" of the new plaintiffs claim; and (4) the addition of the new plaintiff causes the defendants prejudice. See Sherwin Manor, 1997 U.S. Dist. LEXIS 9255, 1997 WL 367368 at *6 (citing Williams v. United States, 405 F.2d 234 (5th Cir. 1968)); J Pease Construction, 1994 U.S. Dist. LEXIS 12331, 1994 WL 499137, at *2-5. In the instant case, the claims of the new Plaintiffs seeking residential services relates back to the First Amended Complaint. Likewise, the Defendants raising the claim of Eleventh Amendment immunity relates back to the filing of their prior Motion to Dismiss which was denied on May 1, 2001.
2

WHEREFORE, the Plaintiffs requests that this Court deny the Defendants Motion To Dismiss the Plaintiffs Third Amended Complaint on the basis that the Defendants Motion To Dismiss the Third Amended Complaint relates back to the Defendants prior filing of a Motion To Dismiss which was denied on May 1, 2001.
Robert H. Farley, Jr. Robert H. Farley, Jr., Ltd.. 1155 S. Washington Street Naperville, IL 60540 Phone: 630-369-0103 Fax: 630-369-0105 Thomas G. Morrissey Thomas G. Morrissey, Ltd. 10249 S. Western Avenue Chicago, IL 60643 Phone: 773-233-7900
Fax: 773-239-0387
3

, .r

CERTIFICATE OF SERVICE

I, Robert H. Farley, Jr., Attorney for the Plaintiffs, deposes and states that he served a

copy of the foregoing Plaintiffs Response To Defendants Motion To Dismiss Plaintiffs Third

Amended Complaint by mailing a copy to Hinshaw & Culbertson (Attn. Stev M. Puiszis /

Michael Leech) 222 N. LaSalle Street, Suite 300, Chicago, I} n DeKj

001.

Robert H. F Ie

Robert H. Farley, Jr. Robert H. Farley, Jr., Ltd. 1155 S. Washington Street Naperville, IL 60540 Phone: 630-369-0103 Fax: 630-369-0195
Thomas O. Morrissey Thomas O. Morrissey, Ltd. 10249 S. Western Avenue Chicago, IL 60643 Phone: 773-233-7900 Fax: 773-239-0387

4

 
 Case: 1:00-cv-05392 Document #: 175 Filed: 06/30/04 Page 1 of 2 PageID #:655

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

BRIAN BRUGGEMAN, by and through his

)

parents, Kenneth and Carol Bruggeman, FRANCES

)

CORSELLO, by and through her parents, Vincent and Agnes

)

Corsello, ANGELA MOORE, by and through her parents,

)

James and Brenda Moore, GREG BLANEY, JR., by and through )

his parent, Yolanda Duncan, MELISSA COLE, by and through )

her parents, Frank and AnnieII Cole, JEFFREY FALCONE, by )

and through his parents, Salvatore and Frances Falcone,

)

SEAN STEELE, by and through his parents, Gregory and

)

Lee Pionke, DAVID STIMAN, by and through his parents,

)

Tony and Tammy Goodman, , CHRISTINE AUER, by and

)

though her parents, Alfred and Patricia Auer, and DOUG

)

WILSMAN, by and through his parent, Loretta Holme, LEAH )

JONES, by and through her parents, Lawrence and Kathy Jones, )

)

Plaintiffs,

)

)

vs.

)

)

ROD BLAGOJEVICH, in his official capacity as Governor ofthe )

State oflllinois, BARRY S. MARAM, in his official capacity as )

Director of the Illinois Department ofPublic Aid, CAROL L. )

ADAMS, in her official capacity as Secretary ofthe llIinois

)

Department of Human Services, JEROLENE JOHNSON, in her )

official capacity as Associate Director of the Office of

)

Developmental Disabilities,

)

)

Defendants.

)

DOCKETED
JUL 09 2004
No. OOC 5392 Judge Guzman Magistrate DenJow

STIPULAnON TO DISMISS

Now come the Plaintiffs, by and through their counsel, Robert Farley and Tho~as

Morrissey, and the Defendants, by and through their counsel, Michael Leech, speciallyappouited

Assistant Attorney General, and hereby stipulate to the dismissal ofthis case with prejudice. The

Plaintiffs and Defendants agree as folJows:

1. This lawsuit shall be dismissed with prejudice and without leave to reinstate.

2. Each party shall bear their own costs, attorney's fees and expenses.
JJS-

.-Case: 1:00-cv-05392 Document #: 175 Filed: 06/30/04 Page 2 of 2 PageID #:656
Dated: June 30, 2004 AGREED

Counsel for Plainti
Robert Farley 1155 S. Washington St. Suite 201 Naperville, IL 60540 (630) 369-0103
Thomas G. Morrissey Thomas G. Morrissey, Ltd. 10249 S. Western Avenue Chicago, IL 60643 (773)233-7900

J. William Roberts Michael J. Leech Steven M. Puiszis 222 N. LaSalle St., Suite 300 Chicago, llIinois 60601-1081 (312) 704-3000

S19663h179111S

 
 Case: 1:00-cv-05392 As of: 01/23/2011 03:00 PM CST 1 of 16
DENLOW, PROTO, TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 4.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:00−cv−05392

Boudreau, et al v. Ryan, et al Assigned to: Hon. Morton Denlow Demand: $0 related Case: 1:01−cv−00806 Case in other court: 02−01730 Cause: 42:1983 Civil Rights Act Plaintiff Edward Boudreau by and through his parents
Plaintiff Brian Bruggeman by and through his parents
Plaintiff Frances Corsello by and through her parents
Plaintiff Angela Moore by and through her parents next of friend James Moore

Date Filed: 09/01/2000 Date Terminated: 02/26/2002 Jury Demand: None 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
Thomas Gerard Morrissey Thomas G. Morrissey 10249 South Western Avenue Chicago, IL 60643 (773) 233−7900 Email: tgmlaw@ameritech.net ATTORNEY TO BE NOTICED
represented by Robert Hugh Farley , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Gerard Morrissey (See above for address) ATTORNEY TO BE NOTICED
represented by Robert Hugh Farley , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Gerard Morrissey (See above for address) ATTORNEY TO BE NOTICED
represented by Robert Hugh Farley , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Gerard Morrissey (See above for address) ATTORNEY TO BE NOTICED

Case: 1:00-cv-05392 As of: 01/23/2011 03:00 PM CST 2 of 16

Plaintiff Linda Semprevivo by and through her parents
Plaintiff Greg Blaney, Jr by and through his parent, Yolanda Duncan
Plaintiff Melissa Cole by and through her parents, Frank and Annie Cole
Plaintiff Jeffrey Falcone by and through his parents Salvatore and Frances Falcone
Plaintiff Sean Steele by and through his parents, Gregory and Lee Pionke
Plaintiff David Stiman by and through his parents, Tony and Tammy Goodman, individually and on behalf of a class
Plaintiff Christine Auer by and through her parents
Plaintiff Douglas Wilsman by and through his parent
Plaintiff Sharon Lowrey by and through her parents
Plaintiff Leah Jones by and through her parents next of friend Lawrence Jones

represented by Robert Hugh Farley , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Thomas Gerard Morrissey (See above for address) ATTORNEY TO BE NOTICED
represented by Robert Hugh Farley , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Robert Hugh Farley , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Robert Hugh Farley , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Robert Hugh Farley , Jr. (See above for address) ATTORNEY TO BE NOTICED

Case: 1:00-cv-05392 As of: 01/23/2011 03:00 PM CST 3 of 16

V. Defendant George H Ryan in his official capacity as Governor of the State of Illinois
Defendant Ann Patla in her official capacity as Director of the Illinois Department of Public Aid
Defendant Linda Renee Baker in her official capacity as Secretary of the Illinois Department of Human Services

represented by Steven M. Puiszis Hinshaw &Culbertson 222 North LaSalle Street Suite 300 Chicago, IL 60601−1081 (312) 704−3000 Email: spuiszis@hinshawlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
J William Roberts Hinshaw &Culbertson 222 North LaSalle Street Suite 300 Chicago, IL 60601−1081 (312) 704−3000 Email: broberts@hinshawlaw.com ATTORNEY TO BE NOTICED
Michael John Leech Hinshaw &Culbertson 222 North LaSalle Street Suite 300 Chicago, IL 60601−1081 (312) 704−3000 Email: mleech@hinshawlaw.com ATTORNEY TO BE NOTICED
Rendi L Mann−Stadt Hinshaw &Culbertson 222 North LaSalle Street Suite 300 Chicago, IL 60601−1081 (312) 704−3000
represented by Steven M. Puiszis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
J William Roberts (See above for address) ATTORNEY TO BE NOTICED
Michael John Leech (See above for address) ATTORNEY TO BE NOTICED
Rendi L Mann−Stadt (See above for address)
represented by Steven M. Puiszis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
J William Roberts

Case: 1:00-cv-05392 As of: 01/23/2011 03:00 PM CST 4 of 16

(See above for address) ATTORNEY TO BE NOTICED

Michael John Leech (See above for address) ATTORNEY TO BE NOTICED

Rendi L Mann−Stadt (See above for address)

Defendant
Melissa Wright in her official capacity as Associate Director of the Office of Developmental Disabilities

represented by Steven M. Puiszis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J William Roberts (See above for address) ATTORNEY TO BE NOTICED

Michael John Leech (See above for address) ATTORNEY TO BE NOTICED

Rendi L Mann−Stadt (See above for address)

Date Filed 09/01/2000
09/01/2000 09/05/2000 09/05/2000
09/08/2000 09/08/2000 09/11/2000 09/13/2000
09/18/2000 09/19/2000

# Docket Text
1 COMPLAINT for declaratory and injunctive relief − Civil cover sheet − Appearance(s) of Robert Hugh Farley Jr. as attorney(s) for plaintiffs ( Four original and four copies summons(es) issued.) ( Documents: 1−1 through 1−3) (kef) (Entered: 09/05/2000)
RECEIPT regarding payment of filing fee paid; on 9/1/00 in the amount of $ 150.00, receipt # 1045275. (kef) (Entered: 09/05/2000)
2 AMENDED COMPLAINT for declaratory and injunctive relief [1−1] by plaintiffs; Notice. (kef) Modified on 09/08/2000 (Entered: 09/06/2000)
3 RETURN OF SERVICE executed as to defendants George H Ryan, Ann Patla, Linda Renee Baker, Melissa Wright on 9/1/00 (3−1 thru 3−4). (kef) (Entered: 09/06/2000)
5 MOTION by plaintiffs for leave of court for Thomas G. Morrissey to file an additional appearance ; Notice. (kef) (Entered: 09/18/2000)
6 MOTION by plaintiffs for discovery prior to the filing of the motion for class certification . (kef) (Entered: 09/18/2000)
4 SUPPLEMENT by plaintiffs to plaintiffs' motion for discovery prior to the filing of the motion for class certification (Attachments). (kef) (Entered: 09/12/2000)
7 MINUTE ORDER of 9/13/00 by Hon. John F. Grady: Plaintiffs' motion for leave of court for Thomas G. Morrissey to file an appearance is granted [5−1]. Plaintiffs' motion for discovery prior to the filing of the motion for class certification is granted [6−1]. Mailed notice (kef) (Entered: 09/18/2000)
9 ATTORNEY APPEARANCE for plaintiffs by Thomas Gerard Morrissey. (kef) (Entered: 09/20/2000)
8 NOTICE by plaintiff of filing of supplement to plaintiffs to motion for discovery prior to the filing of the motion for class certification [4−1]. (kef) (Entered: 09/20/2000)

Case: 1:00-cv-05392 As of: 01/23/2011 03:00 PM CST 5 of 16

09/26/2000 09/26/2000 10/02/2000 10/02/2000 10/04/2000
11/09/2000 11/13/2000 11/13/2000 11/15/2000
11/15/2000 11/29/2000
12/05/2000 12/15/2000 01/16/2001 01/24/2001 01/29/2001 02/23/2001 02/23/2001 02/26/2001 02/26/2001

10 ATTORNEY APPEARANCE for defendants by Steven M. Puiszis, Michael John Leech, J William Roberts. (kef) (Entered: 09/28/2000)
11 MOTION by defendants for enlargement of time to file a responsive pleading to plaintiffs' amended complaint ; Notice. (kef) (Entered: 09/28/2000)
12 MOTION by defendants for enlargement of time to file a responsive pleading to plaintiffs' amended complaint ; Notice. (kef) (Entered: 10/05/2000)
13 MOTION by plaintiffs to compel discovery (Attachments); Notice. (kef) Modified on 10/05/2000 (Entered: 10/05/2000)
14 MINUTE ORDER of 10/4/00 by Hon. John F. Grady: Defendants' motion for enlargement of time (until 11/1/00 to answer or otherwise plead to the complaint) is granted [11−1], [12−1]. Plaintiffs' motion to compel discovery is denied [13−1]; oral depositions are stayed until 11/1/00. Mailed notice (kef) (Entered: 10/05/2000)
15 MOTION by plaintiffs to compel discovery (Attachments); Notice. (kef) (Entered: 11/20/2000)
16 MOTION by defendants to limit discovery . (kef) (Entered: 11/20/2000)
17 MOTION by defendants for leave to file motion to dismiss and memorandum of law ; Notice. (kef) (Entered: 11/20/2000)
18 MINUTE ORDER of 11/15/00 by Hon. John F. Grady: Plaintiffs' motion to compel discovery [15−1] is entered and continued to 11/29/00 at 10:00 a.m. Defendants' motion to limit discovery [16−1] is entered and continued to 11/29/00 at 10:00 a.m. Defendants' motion for leave to file motion to dismiss and memorandum of law is granted [17−1]. No notice (kef) (Entered: 11/20/2000)
19 MOTION by defendants to dismiss plaintiffs' first amended complaint . (kef) (Entered: 11/20/2000)
20 MINUTE ORDER of 11/29/00 by Hon. John F. Grady: Plaintiffs' motion to compel discovery is denied as discussed in open court [15−1]. Defendants' motion to limit discovery is denied [16−1]; the issue of discovery may be re−visited after ruling on the pending motion to dismiss. On defendants' motion to dismiss [19−1], response due by 12/27/00; Reply due by 1/10/01. Mailed notice (kef) (Entered: 12/04/2000)
21 TRANSCRIPT of proceedings for the following date(s): Held on 10/4/00 before Honorable John F. Grady. (kef) (Entered: 12/05/2000)
22 RESPONSE by plaintiffs and memorandum of law to defendant's motion and memorandum of law to dismiss plaintiffs' first amended complaint [19−1]; Notice. (maf) (Entered: 12/20/2000)
23 MOTION by defendants for enlargement of time to file their reply brief in support of their motion to dismiss (Attachments); Notice. (kef) (Entered: 01/29/2001)
24 MINUTE ORDER of 1/24/01 by Hon. John F. Grady: Defendants' motion for enlargement of time (until 1/31/01 to file their reply brief) is granted [23−1]. Mailed notice (kef) (Entered: 01/29/2001)
25 REPLY brief by defendants in support of motion to dismiss ; Notice. [19−1] (tlm) (Entered: 01/30/2001)
28 MOTION by defendants to supplement their motion to dismiss [19−1] (Attachments); Notice. (kef) (Entered: 03/02/2001)
29 MOTION by defendants to reassign based on relatedness (Attachments); Notice. (kef) (Entered: 03/02/2001)
26 RESPONSE by plaintiffs to defendants' motion to reassign based on relatedness (Attachments). (ac) Modified on 02/27/2001 (Entered: 02/27/2001)
27 RESPONSE by plaintiffs to defendants' supplemental memorandum of law; Notice. (ac) Modified on 02/27/2001 (Entered: 02/27/2001)

Case: 1:00-cv-05392 As of: 01/23/2011 03:00 PM CST 6 of 16

02/27/2001
03/07/2001 04/09/2001 04/11/2001 05/01/2001
05/07/2001 05/07/2001 05/07/2001 05/09/2001
05/18/2001 05/23/2001 05/25/2001 05/25/2001 05/31/2001
05/31/2001 05/31/2001 06/01/2001

30 MINUTE ORDER of 2/27/01 by Hon. John F. Grady: Defendants' motion to supplement (their motion to dismiss [19−1]) is granted [28−1]; reply due by 3/7/01. Defendants' motion to reassign based on relatedness is granted [29−1]. Mailed notice (kef) (Entered: 03/02/2001)
31 SUPPLEMENTAL REPLY by defendants on the availability of injunctive relief against state officials under the Title II of the ADA; Notice (jmp) (Entered: 03/09/2001)
32 MOTION by defendants to cite additional authority (Attachments); Notice. (mw) (Entered: 04/13/2001)
33 MINUTE ORDER of 4/11/01 by Hon. John F. Grady : Defendants' motion to cite additional authority is granted [32−1]. Plaintiff's further response due by 04/30/01; reply due by 05/07/01. Mailed notice (mw) (Entered: 04/13/2001)
34 MINUTE ORDER of 5/1/01 by Hon. John F. Grady : Defendants' motion to dismiss [19−1] is granted in part. We grant the motion as to the plaintiffs' ADA claim (Count III), but deny the motion as to Counts I, II, IV, and V. Further, this court orders that the parties make all of the initial disclosures set forth under the Federal Rule of Civil Procedure 26(a)(1) within 14 days of receipt of this opinion. A status hearing is scheduled for 5/30/01 at 9:30 a.m. (Entered Memorandum Opinion). Mailed notice (maf) (Entered: 05/02/2001)
SCHEDULE set on 5/7/01 by Hon. John F. Grady : Status hearing date of 5/30/01 is reset to 9:30 on 5/31/01 . Mailed notice (am) (Entered: 05/07/2001)
35 MOTION by plaintiffs to certify a class pursuant to Rule 23(b)(2) (Attachments). (cem) (Entered: 05/11/2001)
36 MOTION by plaintiffs to file second amended complaint instanter (Attachments); Notice. (cem) (Entered: 05/11/2001)
37 MINUTE ORDER of 5/9/01 by Hon. John F. Grady : Plaintiffs' motion to certify a class [35−1] and plaintiffs' motion to file second amended complaint instanter [36−1] are entered and continued to 5/31/01 at 10:00 a.m. Status hearing date of 5/31/01 to stand. Further, defendants are given until 5/18/01 to answer to complaint and provide mandatory disclosures as provided by the rules. Mailed notice (cem) (Entered: 05/11/2001)
38 MOTION by defendants to enlarge time for filing of answer ; Notice. (maf) (Entered: 05/25/2001)
39 MINUTE ORDER of 5/23/01 by Hon. John F. Grady : Defendants' motion to enlarge time (until 5/25/01) for filing of answer is granted [38−1]. Mailed notice (maf) (Entered: 05/25/2001)
40 TRANSCRIPT of proceedings for the following date(s): 5/9/01 Before Honorable John F. Grady (eav) (Entered: 05/29/2001)
41 MOTION by defendants' for leave to file answer instanter ; Notice. (vmj) (Entered: 06/05/2001)
42 MINUTE ORDER of 5/31/01 by Hon. John F. Grady: Status hearing held. Defendants' motion for leave to file answer instanter is granted [41−1]. Plaintiffs' motion for leave to file second amended complaint is granted [36−1]. Oral argument on plaintiffs' motion for class certification is set for 6/5/01 at 11:30 a.m.; any objections to said motion shall be filed by 6/4/01. No notice (vmj) (Entered: 06/05/2001)
43 ANSWER to amended complaint for declaratory and injunctive relief by defendant [2−1] (Attachments). (vmj) (Entered: 06/05/2001)
44 SECOND AMENDED COMPLAINT by plaintiff; adding Greg Blaney Jr, Melissa Cole, Jeffrey Falcone, Sean Steele, David Stiman. (vmj) (Entered: 06/05/2001)
45 OBJECTIONS by defendants' to plaintiffs' motion for class certification [35−1] (Attachments); Notice. (vmj) (Entered: 06/05/2001)

Case: 1:00-cv-05392 As of: 01/23/2011 03:00 PM CST 7 of 16

06/05/2001
06/12/2001 06/27/2001 07/09/2001 07/11/2001
07/11/2001 07/11/2001 07/11/2001 07/11/2001 07/17/2001 08/01/2001 08/10/2001 08/13/2001 08/15/2001 08/21/2001
08/21/2001 08/22/2001 08/29/2001 09/05/2001

46 MINUTE ORDER of 6/5/01 by Hon. John F. Grady : Oral argument held on plaintiffs' motion for class certication [35−1]. Plaintiffs will file a memorandum in support of their motion by 6/12/01, defendant may respond by 6/19/01 and plaintiffs may reply by 6/26/01. The court will set a further date after considering the memoranda. Mailed notice (maf) (Entered: 06/07/2001)
47 MEMORANDUM by plaintiffs of law in support of class certification [35−1] (Attachments) (eav) (Entered: 06/13/2001)
48 MOTION by plaintiffs for this court to rule on the issue of class certification without any further briefing ; Notice. (cem) (Entered: 07/16/2001)
49 MOTION by defendants for leave to file memorandum requested by court regarding class certification issues . (cem) (Entered: 07/16/2001)
50 MINUTE ORDER of 7/11/01 by Hon. John F. Grady : Defendants' motion for leave to file memorandum requested by court regarding class certification issues [49−1] and to file affidavit of Eugenia Cutler under seal is granted; plaintiffs' reply due by 8/7/01. Plaintiffs' motion for this court to rule on the issue of class certification without any further briefing [48−1] is entered and withdrawn. No notice (cem) (Entered: 07/16/2001)
51 MEMORANDUM by defendants opposing class certification; with remark (Attachments). (cem) (Entered: 07/16/2001)
51 ADDRESSING by defendants class certification determinations in similar cases; with memorandum opposing (Attachments). (cem) (Entered: 07/16/2001)
52 MEMORANDUM by defendants opposing class certification and addressing class certification determinations in similar cases [49−1] with affidavit (yap) (Entered: 07/17/2001)
52 AFFIDAVIT of Eugenia Cutler; Associate Director of Program Operations, Surburban Access with memorandum opposing class certification (yap) (Entered: 07/17/2001)
53 TRANSCRIPT of proceedings for the following date(s): 5/31/01, 6/5/01 before Honorable John F. Grady. (53−1 through 53−2). (maf) (Entered: 07/18/2001)
54 REPLY to defendants' memorandum opposing class certification by plaintiff [52−1]; (Attachments). (cgb) (Entered: 08/02/2001)
56 MOTION by defendants for entry of a protective order on mental health records (Attachments); Notice. (fce) (Entered: 08/17/2001)
55 RESPONSE by plaintiffs to defendants motion for entry of a protective order (Attachments). (fce) Modified on 08/14/2001 (Entered: 08/14/2001)
57 MINUTE ORDER of 8/15/01 by Hon. John F. Grady: Defendant's motion for entry of a protective order on mental health records [56−1] is taken under advisement. No notice. (fce) (Entered: 08/17/2001)
59 MINUTE ORDER of 8/21/01 by Hon. John F. Grady: Defendants' motion for entry of a protective order on mental health records [56−1] is granted in part, denied in part. Entered Memorandum Opinion. Mailed notice by judge's staff. (fce) (Entered: 08/24/2001)
60 MINUTE ORDER of 8/21/01 by Hon. John F. Grady: Entered Protective Order. Mailed notice by judge's staff. (fce) Modified on 08/24/2001 (Entered: 08/24/2001)
58 ATTORNEY APPEARANCE for Marklund Children's Home by Joseph C. Fench, Robin R. Welgat. (fce) (Entered: 08/23/2001)
61 MOTION by plaintiffs to compel discovery (Attachments); Notice. (mw) (Entered: 09/10/2001)
62 MINUTE ORDER of 9/5/01 by Hon. John F. Grady : Plaintiffs' motion to compel discovery is entered and withdrawn [61−1]. No notice (mw) (Entered: 09/10/2001)

Case: 1:00-cv-05392 As of: 01/23/2011 03:00 PM CST 8 of 16

09/10/2001 09/17/2001 09/18/2001 09/19/2001
09/20/2001 09/24/2001 09/24/2001 09/24/2001 09/25/2001 09/25/2001 09/26/2001
09/26/2001 10/01/2001 10/03/2001 10/04/2001 10/15/2001 10/15/2001 10/15/2001 10/17/2001

65 MOTION by plaintiffs to compel discovery (Attachments); Notice (fce) (Entered: 09/21/2001)
63 SUPPLEMENT by plaintiff to motion to compel discovery [61−1] (Attachment). (fce) (Entered: 09/18/2001)
64 RESPONSE by defendants to plaintiffs' motion to compel discovery [61−1]; Notice. (fce) (Entered: 09/19/2001)
66 MINUTE ORDER of 9/19/01 by Hon. John F. Grady: Plaintiffs' motion to compel discovery [65−1] is entered and continued to 10/24/01 at 10:00 a.m. Further, defendants are to furnish the name or names of person or persons that have personal knowledge as to the availability or non−availability of the documents sought by plaintiff in their motion to compel; that person or persons shall be made available for deposition within the next ten (10) days. Mailed notice. (fce) Modified on 09/24/2001 (Entered: 09/21/2001)
67 TRANSCRIPT of proceedings for the following date(s): 07/11/01 before Honorable John F. Grady. (fce) (Entered: 09/21/2001)
69 MOTION by defendants to continue plaintiffs' PAS Agent deposition ; Notice. (fce) (Entered: 09/27/2001)
70 MOTION by plaintiff to file third amended complaint instanter (Attachments); Notice. (fce) (Entered: 09/27/2001)
71 MOTION by defendants to clarify protective order (Attachment). (fce) (Entered: 09/27/2001)
68 RESPONSE by plaintiffs to defendants' motion to continue PAS Agent deposition (Attachments). (fce) (Entered: 09/26/2001)
72 AMENDED NOTICE by plaintiff regarding motion to file third amended complaint instanter [70−1]. (fce) (Entered: 09/27/2001)
73 MINUTE ORDER of 9/26/01 by Hon. John F. Grady: Defendants' motion to continue plaintiffs' PAS agent deposition [69−1] is considered entered and withdrawn. Plaintiffs' motion to file third amended complaint instanter [70−1] is granted; defendants are given until 11/13/01 to plead to the third amended complaint. Defendants' motion to clarify protective order is entered and continued to 10/3/01 at 10:00 a.m. Mailed notice. (fce) Modified on 10/02/2001 (Entered: 09/27/2001)
74 AMENDED COMPLAINT [44−1] by plaintiff; Adding plaintiff's Christine Auer, Douglas Wilsman, Sharon Lowrey, Leah Jones (Attachments); Notice. (fce) (Entered: 09/27/2001)
75 RESPONSE by plaintiffs to defendant's motion to clarify protective order [71−1] (Attachments). (fce) (Entered: 10/02/2001)
76 MINUTE ORDER of 10/3/01 by Hon. John F. Grady: Defendant's motion to clarify protective order [71−1] is taken under advisement. No notice. (fce) (Entered: 10/04/2001)
77 MINUTE ORDER of 10/4/01 by Hon. John F. Grady : (Entered protective order). Mailed notices by judge's staff (cem) (Entered: 10/05/2001)
78 TRANSCRIPT of proceedings for the following date(s): 09/19/01, 09/26/01 before Honorable John F. Grady (78−1 through 78−2). (fce) (Entered: 10/16/2001)
79 MOTION by plaintiffs to schedule an evidentiary hearing to determine whether the plaintiffs Auer, Jones, Lowrey and Wilsman can adequately represent the proposed class (Attachment); Notice. (cem) Modified on 10/18/2001 (Entered: 10/18/2001)
80 ADDITIONAL factual submissions by plaintiffs in support of class certification (Attachments). (cem) (Entered: 10/18/2001)
81 MINUTE ORDER of 10/17/01 by Hon. John F. Grady : Plaintiff's motion to schedule an evidentiary hearing to determine whether the plaintiffs Auer, Jones, Lowrey and Wilsman can adequately represent the proposed class is granted

Case: 1:00-cv-05392 As of: 01/23/2011 03:00 PM CST 9 of 16

10/24/2001 11/15/2001 11/15/2001 11/15/2001
11/15/2001
11/15/2001 11/15/2001 11/27/2001 11/27/2001
11/27/2001 11/27/2001 11/29/2001 11/29/2001
12/04/2001 12/06/2001 12/10/2001 12/10/2001 12/11/2001 12/13/2001 12/17/2001 12/18/2001

[79−1]. Hearing for the defendants to raise any objections to the adequacy of the four people plaintiff proposes as class representatives is set for 11/15/01 at 10:00 am . Mailed notice (cem) (Entered: 10/18/2001)
82 MINUTE ORDER of 10/24/01 by Hon. John F. Grady: Plaintiffs' motion to compel discovery [65−1] is withdrawn. No notice. (fce) (Entered: 10/29/2001)
SCHEDULE set on 11/15/01 by Hon. John F. Grady : Evidentiary hearing held and continued to 10:00 on 11/27/01. No notice (am) (Entered: 11/16/2001)
83 MOTION by defendants for leave to file motion to dismiss and memorandum of law ; Notice. (fce) (Entered: 11/29/2001)
84 MINUTE ORDER of 11/15/01 by Hon. John F. Grady: Defendants' motion for leave to file motion to dismiss and memorandum of law [83−1] is granted. No notice. (fce) (Entered: 11/29/2001)
85 MOTION by defendants to dismiss plaintiff's third amended complaint on the grounds that it is barred by the Eleventh Amendment ; Memorandum of law. (fce) (Entered: 11/29/2001)
104 MOTION by defendants to quash or excuse (Attachment); Notice. (yp) (Entered: 01/23/2002)
105 MOTION by plaintiffs to sanction defendants' for failure to produce officers at hearing ; Notice. (yp) (Entered: 01/23/2002)
SCHEDULE set on 11/27/01 by Hon. John F. Grady : Evidentiary hearing held and continued to 9:30 on 11/29/01 . No notice (am) (Entered: 11/28/2001)
86 MINUTE ORDER of 11/27/01 by Hon. John F. Grady: Defendants' oral motion for leave to file corrected memorandum of law is granted. No notice. (fce) (Entered: 11/29/2001)
87 CORRECTED MEMORANDUM by defendant of law. (fce) (Entered: 11/29/2001)
111 SUPPLEMENT by defendants to motion for leave to file motion to dismiss; (Attachments). (cdy) (Entered: 01/24/2002)
SCHEDULE set on 11/29/01 by Hon. John F. Grady : Evidentiary hearing held and continued to 10:00 on 12/4/01. No notice (am) (Entered: 11/30/2001)
88 ATTORNEY APPEARANCE for defendants George H Ryan, Ann Patla, Linda Renee Baker, Melissa Wright by Rendi L. Mann−Stadt. (fce) (Entered: 12/04/2001)
SCHEDULE set on 12/4/01 by Hon. John F. Grady : Evidentiary hearing held and is continued to 10:00 on 12/6/01 . Mo notice (am) (Entered: 12/05/2001)
SCHEDULE set on 12/6/01 by Hon. John F. Grady : Evidentiary hearing held and continued to 10:00 on 12/10/01 . No notice (am) (Entered: 12/06/2001)
SCHEDULE set on 12/10/01 by Hon. John F. Grady : Evidentiary hearing held and continued to 10:00 on 12/11/01 . No notice (am) (Entered: 12/11/2001)
89 MEMORANDUM of law by plaintiffs in response to the court's inquiry on 12/06/01 (Attachments). (fce) (Entered: 12/11/2001)
SCHEDULE set on 12/11/01 by Hon. John F. Grady : Evidentiary hearing held and continued to 10:00 on 12/13/01 . No notice (am) (Entered: 12/12/2001)
SCHEDULE set on 12/13/01 by Hon. John F. Grady : Evidentiary hearing held and continued to 11:00 on 12/17/01 No notice (am) (Entered: 12/19/2001)
SCHEDULE set on 12/17/01 by Hon. John F. Grady : Evidentiary hearing held and continued to 10:00 on 12/18/01 . No notice (am) (Entered: 12/19/2001)
SCHEDULE set on 12/18/01 by Hon. John F. Grady : Evidentiary hearing held and continued to 10:00 on 1/10/02 . No notice (am) (Entered: 12/19/2001)

Case: 1:00-cv-05392 As of: 01/23/2011 03:00 PM CST 10 of 16

12/18/2001
12/27/2001 01/07/2002 01/07/2002 01/09/2002
01/09/2002
01/10/2002 01/10/2002 01/10/2002 01/10/2002 01/10/2002 01/11/2002 01/11/2002 01/14/2002 01/14/2002 01/14/2002 01/16/2002 01/17/2002 01/17/2002

90 MINUTE ORDER of 12/18/01 by Hon. John F. Grady: Plaintiff may file a response to the defendants' motion to dismiss plaintiff's third amended complaint [85−1] by 12/28/01. Further, parties to file briefs on family participation and state wideness issue by 01/08/02; responses due by 01/15/02. Mailed notice. (fce) (Entered: 12/21/2001)
91 RESPONSE by plaintiffs to defendants' motion to dismiss plaintiff's third amended complaint [85−1]. (mw) (Entered: 12/28/2001)
92 AGREED ORDER by parties. (air) (Entered: 01/08/2002)
95 EMERGENCY MOTION by defendants for leave to file brief in excess of 15 pages and one day extension of time for filing ; Notice (yap) (Entered: 01/11/2002)
93 MOTION by defendants in limine to preclude the use of a particular demostrative exhibit which purports to reflect testimony given with regard to "waiting lists" , motion to strike use of exhibit and line of inquiry regading waiting lists (Attachments); Notice. (cem) (Entered: 01/10/2002)
98 MINUTE ORDER of 1/9/02 by Hon. John F. Grady: Defendants' emergency motion for leave to file brief in excess of 15 pages [95−1] and one day extension of time for filing [95−2] is granted; defendants may file brief up to thirty pages. Telephoned notice (yap) (Entered: 01/11/2002)
94 TRANSCRIPT of proceedings for the following date(s): 10/17/01 Before Honorable John F. Grady (hp) (Entered: 01/11/2002)
96 MEMORANDUM of law by plaintiffs on family participation and statement under the Medicaid Act (yap) (Entered: 01/11/2002)
97 STATEMENT of facts by plaintiffs in support of Memorandum of law on Family Participation and Statewideness with Exhibits (Attachments) (yap) (Entered: 01/11/2002)
97 EXHIBITS by plaintiffs in support of memorandum of law on Family Participation and Statewideness with Statements of Facts (Attachments) (yap) (Entered: 01/11/2002)
SCHEDULE set on 1/10/02 by Hon. John F. Grady : Evidentiary hearing held and continued to 10:00 on 1/14/02 . No notice (am) (Entered: 01/14/2002)
99 MEMORANDUM by defendants of law on statewideness and Medicaid recipients' right to placement in close geographic proximity to family; Notice. (mw) (Entered: 01/14/2002)
100 MINUTE ORDER of 1/11/02 by Hon. John F. Grady : Enter order requesting additional briefing. (Entered Order.) Faxed notices by judge's staff. (las) (Entered: 01/15/2002)
101 MEMORANDUM of law by plaintiffs in response to this court's order of 1/11/01 (Attachments) (las) (Entered: 01/15/2002)
102 MOTION by plaintiffs for a preliminary injunction (Attachments); Notice (las) (Entered: 01/15/2002)
SCHEDULE set on 1/14/02 by Hon. John F. Grady : Evidentiary hearing held and continued to 2:00 on 1/17/02 . No notice (am) Modified on 01/22/2002 (Entered: 01/15/2002)
103 MEMORANDUM of law by defendants in response to court's questions; Notice. (air) (Entered: 01/17/2002)
SCHEDULE set on 1/17/02 by Hon. John F. Grady : Evidentiary hearing held and is continued to 11:00 on 1/22/02 . No notice (am) (Entered: 01/22/2002)
106 MOTION by plaintiffs for defendants to produce all declarations , and to disclose identity of witnesses in advance of the hearing (Attachment); Notice. (yp) (Entered: 01/23/2002)

Case: 1:00-cv-05392 As of: 01/23/2011 03:00 PM CST 11 of 16

01/17/2002 01/17/2002
01/22/2002 01/22/2002 01/22/2002 01/24/2002 01/28/2002 01/29/2002 02/01/2002 02/04/2002 02/05/2002 02/05/2002
02/06/2002 02/06/2002 02/07/2002 02/07/2002
02/07/2002 02/13/2002 02/26/2002

107 EMERGENCY MOTION by defendants to quash plaintiffs' notice of deposition (Attachments); Notice. (yp) (Entered: 01/23/2002)
110 MINUTE ORDER of 1/17/02 by Hon. John F. Grady : Plaintiffs' motion for defendants to produce all declarations [106−1] and to disclose identity of witnesses in advance of the hearing is allowed [106−2]. Defendants' emergency motion to quash plaintiffs' notice of deposition is allowed [107−1]. Plaintiffs' motion for a preliminary hearing is taken under advisement. No notice (yp) (Entered: 01/23/2002)
SCHEDULE set on 1/22/02 by Hon. John F. Grady : Evidentiary hearing held and continued to 10:00 on 1/24/02 . No notice (am) (Entered: 01/23/2002)
108 MOTION by defendants to quash plaintiffs' subpoena (Attachments); Notice. (yp) (Entered: 01/23/2002)
109 REPLY MEMORANDUM by plaintiff in support of motion for leave to file motion to dismiss third amended complaint. (yp) (Entered: 01/23/2002)
SCHEDULE set on 1/24/02 by Hon. John F. Grady : Evidentiary hearing held and continued to 10:00 on 1/28/02 . No notice (am) (Entered: 01/25/2002)
SCHEDULE set on 1/28/02 by Hon. John F. Grady : Evidentiary hearing held and continued to 10:30 on 1/29/02 . No notice (am) (Entered: 01/30/2002)
SCHEDULE set on 1/29/02 by Hon. John F. Grady : Evidentiary hearing held and continued to 2:00 on 1/31/02 . No notice (am) (Entered: 01/30/2002)
SCHEDULE set on 2/1/02 by Hon. John F. Grady : Evidentiary hearing held and continued to 10:30 on 2/4/02 . No notice (am) (Entered: 02/01/2002)
SCHEDULE set on 2/4/02 by Hon. John F. Grady : Evidentiary hearing held and is continued to 11:00 on 2/5/02 . No notice (am) (Entered: 02/04/2002)
SCHEDULE set on 2/5/02 by Hon. John F. Grady : Evidentiary hearing held. Status hearing set to 10:00 on 2/6/02 . No notice (am) (Entered: 02/06/2002)
112 MINUTE ORDER of 2/5/02 by Hon. John F. Grady: The defendants' motion for leave to file their motion to dismiss the plaintiff's third amended complaint is granted. The plaintiff's raise no objection to the filing of the motion. No notice (cdy) Modified on 02/07/2002 (Entered: 02/07/2002)
SCHEDULE set on 2/6/02 by Hon. John F. Grady : Status hearing held. Evidentiary hearing continued to 10:00 on 2/7/02 . No notice (am) (Entered: 02/07/2002)
113 POINTS and authorities on standing by defendants (jmp) (Entered: 02/08/2002)
114 MOTION by plaintiffs to amend the pleadings to conform the pleadings to the evidence presented to this court during the evidentiary hearings which commenced on 11/14/01 ; Notice. (jmp) (Entered: 02/08/2002)
115 MINUTE ORDER of 2/7/02 by Hon. John F. Grady : Plaintiffs' motion to amend the pleadings to conform the pleadings to the presented to this court during the evidentiary hearings which commenced on 11/15/01 is granted [114−1]. Plaintiffs' have until 02/14/02 to file their amended complaint and defendants are given until 02/21/02 to file their motion to dismiss the fourth amended complaint. Mailed notice (jmp) (Entered: 02/08/2002)
SCHEDULE set on 2/7/02 by Hon. John F. Grady : Evidentiary hearing ends. No notice (am) (Entered: 02/26/2002)
116 FOURTH AMENDED COMPLAINT by plaintiffs (Attachments). (air) (Entered: 02/14/2002)
117 MINUTE ORDER of 2/26/02 by Hon. John F. Grady : This cause is hereby dismissed for lack of standing. Plaintiffs' motion for preliminary injunction is denied [102−1]. Entered Memorandum Opinion. Notice mailed by Judge's staff (ar) (Entered: 02/28/2002)

Case: 1:00-cv-05392 As of: 01/23/2011 03:00 PM CST 12 of 16

02/26/2002 02/26/2002 03/05/2002
03/21/2002 03/22/2002 03/22/2002 03/28/2002 04/16/2002
04/24/2002 04/29/2002 05/01/2002 05/01/2002 05/01/2002 05/01/2002 05/06/2002 05/06/2002 05/06/2002 05/06/2002 05/06/2002 05/06/2002

118 MINUTE ORDER of 2/26/02 by Hon. John F. Grady : This cause is hereby dismissed for lack of jurisdiction. (Entered Final Judgment). Terminating case. Notice mailed by Judge's staff (ar) (Entered: 02/28/2002)
119 MINUTE ORDER of 2/26/02 by Hon. John F. Grady : Any pending motions are administratively terminated moot [35−1], [85−1], [93−1 &93−2], [104−1], [108−1]. Notice mailed by Judge's staff (ar) (Entered: 02/28/2002)
120 TRANSCRIPT of proceedings for the following date(s): 11/15/01, 11/27/01, 11/29/01, 12/04/01, 12/06/01, 12/10/01, 12/11/01, 12/13/01, 12/17/01, 12/18/01, 01/10/02, 01/14/02, 01/17/02, 01/22/02, 01/24/02, 01/28/02, 01/29/02, 01/31/02, 02/04/02, 02/05/02, 02/06/02, 02/07/02 Before Honorable Grady (22 vols)(120−1 thru 120−22) (pmp) (Entered: 03/05/2002)
121 NOTICE OF APPEAL by plaintiffs from order Terminating case [118−1], minute order [118−2] order Entered Memorandum Opinion [117−1] minute order [117−2] ($105.00 PAID) (mak) (Entered: 03/22/2002)
122 DOCKETING STATEMENT by plaintiffs regarding appeal [121−1] . (mak) (Entered: 03/22/2002)
TRANSMITTED to the 7th Circuit the short record on appeal [121−1]. Mailed notice to all counsel. (mak) (Entered: 03/22/2002)
123 ACKNOWLEDGEMENT of receipt of short record on appeal [121−1] USCA 02−1730 (hmb) (Entered: 03/28/2002)
TRANSMITTED to the 7th Circuit the long record on appeal no. 02−1730 consisting of five volumes of pleadings, one box thirty volumes of transcripts in one box and two volumes ofloose pleadings under separate certificate on appeal [121−1] Mailed notice to all counsel. (mak) (Entered: 04/16/2002)
124 MOTION by defendant for leave to supplement appellate record (Attachments); Notice (cdy) (Entered: 05/02/2002)
127 MOTION by plaintiff for leave to supplement appellate record (Attachments); Notice (cdy) (Entered: 05/02/2002)
125 AMENDED LIST of exhibits by defendants (cdy) (Entered: 05/02/2002)
126 MINUTE ORDER of 5/1/02 by Hon. John F. Grady: Defendant's motion for leave to supplement appellate record [124−1], is granted. (Entered Order.) No notice (cdy) (Entered: 05/02/2002)
128 MINUTE ORDER of 5/1/02 by Hon. John F. Grady: Plaintiff's motion for leave to supplement appellate record [127−1], is granted. (Entered Order.) No notice (cdy) (Entered: 05/02/2002)
129 EXHIBITS by plaintiff evidentiary hearing commencing on 11/15/01 (129−1 through 129−9) (cdy) Modified on 05/02/2002 (Entered: 05/02/2002)
130 STATE MEDICAID PLAN by defendants (130−1 through 130−4) (cdy) Modified on 05/07/2002 (Entered: 05/07/2002)
131 EXHIBIT BOOKS by defendants (131−1 through 131−7) (cdy) Modified on 05/07/2002 (Entered: 05/07/2002)
132 301 ICF/MR Surveys and declarations by defendants from all ICF/DD providers in Illinois concerning vacancy information in 2001 (132−1 through 132−3) (cdy) (Entered: 05/07/2002)
133 Medicaid Waiver Manual by defendants (cdy) (Entered: 05/08/2002)
134 DECLARATION of Stephen M. Rudolph pursuant to 28 U.S.C. Section 1746 regarding ICF/DD (Attachments) (cdy) (Entered: 05/08/2002)
135 Illinois Nursing Home Care Act State Regulations and Medicare Conditions of Participation for Long Term Care Facilities and ICF/DD's Booklet by defendants (cdy) (Entered: 05/08/2002)

Case: 1:00-cv-05392 As of: 01/23/2011 03:00 PM CST 13 of 16

05/06/2002 05/06/2002 05/06/2002 05/06/2002 05/06/2002 05/06/2002
05/06/2002 05/06/2002 05/08/2002
05/21/2002 05/22/2002 06/12/2002
06/13/2002 06/13/2002
12/30/2002 12/30/2002
05/15/2003 05/15/2003

136 KANE KENDALL summary exhibits by defendants (cdy) (Entered: 05/08/2002)
137 CILA Act and State Regulations Booklet by defendants (cdy) (Entered: 05/08/2002)
138 ICF/DD photographs by defendants (Attachments) (cdy) (Entered: 05/08/2002)
139 PLEADINGS on civil docket but not tranmitted to Court of Appeal by defendants (Attachments) (cdy) (Entered: 05/08/2002)
140 SUBMISSION OF MATERIALS by defendants received from Dr. Susan Parish (Attachments) (cdy) (Entered: 05/08/2002)
141 DECLARATIONS of Connie Sims, Ron Wampler, Daniel Moore, Raymond Carmody, Tom Armitage, William Murphy, Lynn Handy, Ann Patla, John Rupcich, Sally Ritchey, J. Michal Bibo, Lynne Selinger, Alan Ryle by defendants not contained in exhibit Books one through seven (Attachments) (cdy) (Entered: 05/08/2002)
142 OPTIONS AND ADVOCACY SUMMARY EXHIBITS by defendants (Attachments) (cdy) (Entered: 05/08/2002)
143 CAU EXHIBITS by defendants not in exhibit books 1−7 (Attachments) (cdy) (Entered: 05/08/2002)
TRANSMITTED to the 7th Circuit supplement to appeal no. 02−1730 consisting of: twenty−five volumes of loose pleadings filed by the defendants (Items 124, 125, 126, 130 through 143.) Mailed notice to all counsel. (cdy) (Entered: 05/08/2002)
144 TRANSCRIPT of proceedings for the following date(s): 05/01/02 appeal [121−1] before Honorable John F. Grady (cdy) (Entered: 05/22/2002)
TRANSMITTED to the 7th Circuit supplement to appeal no. 02−1730 consisting of one volume of transcript. Mailed notice to all counsel. (cdy) (Entered: 05/22/2002)
145 CERTIFIED copy of Order dated 06/05/02 from the 7th Circuit. It is ordered that the motion is granted and this appeal is dismissed, pursuant to Federal Rule of Appellate Procedure 42(b), only as to appellant Linda Semprevivo. This appeal remains active as to the other parties (02−1730). (ntf) (Entered: 06/13/2002)
146 LETTER from the 7th Circuit: Retaining record on appeal no. 02−1730 for use in remainder of this appeal (cdy) (Entered: 06/14/2002)
147 CERTIFIED COPY of order from the 7th Circuit: Upon consideration of the plaintiffs−appellants motion to voluntarily dismiss one of the plaintiffs, Linda Semprevivo from this appeal, filed on 06/05/02, by counsel for the appellants: It is ordered that the motion is granted and this appeal is dismissed, pursuant to Federal Rule of Appellate Procedure 42(b), only as to appellant Linda Semprevivo. This appeal remains active as to the other aparties. ( 02−1730) (cdy) (Entered: 06/14/2002)
148 LETTER from the 7th Circuit retaining the record on appeal no. 02−1730 for use in remander of appeal (cdy) (Entered: 01/02/2003)
149 CERTIFIED COPY of order from the 7th Circuit: This appeal is dismissed only as to appellant Edward Boudreau, pursuant to Fed. R. App. P. 42(b). This appeal remains active as to the other parties [121−1]. ( 02−1730) (cdy) (Entered: 01/02/2003)
150 LETTER from the 7th Circuit returning the record on appeal no. 02−1730 consisting of five volumes of pleadings, 28 volumes of loose pleadings, 31 volumes of transcripts (cdy) (Entered: 05/16/2003)
151 CERTIFIED COPY of order from the 7th Circuit: The judgment of the District Court is affirmed in part, vacated in part, and the appeal id remanded, in accordance with the decision of this court entered on this date. No costs are awarded. [Appeal [121−1]. ( 02−1730) (cdy) (Entered: 05/16/2003)

Case: 1:00-cv-05392 As of: 01/23/2011 03:00 PM CST 14 of 16

05/15/2003
05/15/2003 05/15/2003 09/03/2003 09/08/2003 09/10/2003
09/12/2003 09/15/2003 09/30/2003 10/02/2003
10/07/2003 10/07/2003
10/27/2003 10/29/2003 11/04/2003 11/04/2003 11/07/2003 11/07/2003 11/17/2003

152 CERTIFIED copy of Order dated 05/09/03 from the 7th Circuit. It is ordered that #1 is granted and the petition for rehearing filed on 04/21/03, as well as the answer thereto shall be returned to the parties who filed them. It is further ordered that #2 is denied as moot and the tendered response shall be returned to the government. A copy of this order shall be distributed En Banc. ( 02−1730) (cdy) (Entered: 05/16/2003)
153 OPINION from the 7th Circuit: Argued 12/31/02; Decided 01/03/03. ( 02−1730) (cdy) (Entered: 05/16/2003)
154 OPINION from the 7th Circuit: Argued 01/06/03; Decided 04/07/03. ( 02−1730) (cdy) (Entered: 05/16/2003)
SCHEDULE set on 9/3/03 by Hon. John F. Grady : Status hearing set to 10:30 on 10/22/03 . Mailed notice (am) (Entered: 09/05/2003)
155 MOTION by defendants to stay , and/or for an extension of time (Attachments); Notice (cdy) (Entered: 09/12/2003)
156 MINUTE ORDER of 9/10/03 by Hon. John F. Grady: Defendants' motion to stay [155−1], and/or for an extension of time [155−2], is granted until further order of court. Further, this cause to be referred to the Executive Committee for reassignement by lot to another judge. No notices (cdy) (Entered: 09/12/2003)
157 REASSIGNMENT ORDER of 9/12/03 This case is reassigned to the Hon. Ronald A. Guzman from Hon. John F. Grady pursuant to Local Rule 40.5(a). (For further detail see order.) Mailed notice (aga) (Entered: 09/15/2003)
SCHEDULE set on 9/15/03 by Hon. Ronald A. Guzman : Status hearing set to 9:30 10/27/03 . Mailed notice (cjg) (Entered: 09/15/2003)
159 MOTION by plaintiffs to set a date for the defendants to answer plaintiffs request for admissions (Attachments); Notice (cdy) (Entered: 10/08/2003)
160 MINUTE ORDER of 10/2/03 by Hon. Ronald A. Guzman: Plaintiffs' motion to set a date for the defendants to answer plaintiffs request for admissions [159−1], is granted to and including 11/03/03. All discovery supervision and motions are referred to Magistrate Judge Denlow. No notices (cdy) (Entered: 10/08/2003)
158 REFERRAL ORDER: Case referred to Hon. Morton Denlow for discovery supervision , and discovery motions Mailed notice. (cjg) (Entered: 10/07/2003)
SCHEDULE set on 10/7/03 by Hon. Morton Denlow : Status hearing set to 10:00 11/4/03 before Magistrate Judge Morton Denlow in Courtroom 1350. Parties shall deliver a copy of an initial status report to chambers, Room 1356, 3 business days before the initial status hearing. If the parties have recently prepared and filed an initial status report, the submission of the previously filed initial status report is sufficient. Mailed notice (dmk) (Entered: 10/07/2003)
SCHEDULE set on 10/27/03 by Hon. Ronald A. Guzman : Status hearing reset to 9:30 11/7/03 on parties request . Mailed notice (cjg) (Entered: 10/27/2003)
161 INITIAL STATUS REPORT AND DISCOVERY PLAN by plaintiffs (cdy) (Entered: 11/04/2003)
SCHEDULE set on 11/4/03 by Hon. Morton Denlow : Status hearing held and continued to 10:00 2/10/04. Fact discovery ordered closed on 5/7/04 . Mailed notice (dmk) (Entered: 11/04/2003)
162 INITIAL STATUS REPORT by defendants (cdy) (Entered: 11/05/2003)
SCHEDULE set on 11/7/03 by Hon. Ronald A. Guzman : Status hearing held and continued to 9:30 5/7/04 . Mailed notice (cjg) (Entered: 11/07/2003)
163 REFERRAL ORDER: Case referred to Hon. Morton Denlow for settlement conference Mailed notice. (cjg) (Entered: 11/07/2003)
164 MOTION by plaintiffs to compel discovery (Attachments); Notice (cdy) (Entered: 11/20/2003)

Case: 1:00-cv-05392 As of: 01/23/2011 03:00 PM CST 15 of 16

11/19/2003
12/03/2003 12/04/2003 12/08/2003 12/10/2003 01/08/2004
02/10/2004 03/11/2004
05/03/2004 05/24/2004 05/25/2004 05/26/2004 06/16/2004 06/23/2004 06/24/2004

165 MINUTE ORDER of 11/19/03 by Hon. Morton Denlow: Answer brief to plaintiff's motion to compel production of documents described in plaintiff's production request Nos. 17, 18, 19, 29, 21, 31 [164−1] due 12/03/03. Reply to answer brief due 12/08/03. Hearing on motion to compel plaintiff's production requests set for 12/10/03 at 9:15 a.m. Motion hearing held on plaintiffs' motion to compel discovery. Plaintiffs' motion to compel discovery is entered and continued to 12/10/03 at 9:15 a.m. Notices mailed by judge's staff (cdy) (Entered: 11/20/2003)
167 RESPONSE by defendants to plaintiffs motion to compel discovery [164−1]; Notice. (ntf) (Entered: 12/08/2003)
166 STIPULATION to spread proper parties' names of record; Notice (cdy) (Entered: 12/05/2003)
168 REPLY by plaintiffs to defendants objection to production. (jmm) (Entered: 12/09/2003)
169 MINUTE ORDER of 12/10/03 by Hon. Morton Denlow : Oral argument held on plaintiff's motion to compel [164−1]. Plaintiff's motion to compel [164−1] is taken under advisement. Ruling on plaintiff's motion to compel [164−1] by mail on or by 1/7/04. Mailed notice by judge's staff (eav) (Entered: 12/12/2003)
170 MINUTE ORDER of 1/8/04 by Hon. Morton Denlow: Plaintiff's motion to compel discovery is denied as follows [164−1]: Plaintiffs' motion to compel document production requests numbered 17, 18, 19, 20 and 21 is denied except to the extent that an existing or a proposed budget includes efforts by defendants to gain federal matching or Medicaid funding. Plaintiff's motion to compel document production for request number 31 is denied, except to the extent that defendants' documents directly state that the Illinois Medicaid Plan and/or Illinois Medicaid Waiver Plan which services the developmentally disabled is not in compliance with the ADA or the RA. Entered Memorandum Opinion and Order. Notices mailed by judge's staff (vmj) (Entered: 01/09/2004)
SCHEDULE set on 2/10/04 by Hon. Morton Denlow : Status hearing held and continued to 10:00 3/11/04 . Mailed notice (dmk) (Entered: 02/10/2004)
SCHEDULE set on 3/11/04 by Hon. Morton Denlow : Status hearing held. Fact discovery ordered closed on 9/1/04. Settlement conference set for 2:00 5/24/04. Plaintiff to submit written itemization of damages and settlement demand by 3/35/04. Defendant to submit written settlement offer by 4/15/04. Mailed notice (dmk) (Entered: 03/11/2004)
SCHEDULE set on 5/3/04 by Hon. Ronald A. Guzman : Status hearing reset to 9:30 5/26/04 to follow settlement conference . Mailed notice (cjg) (Entered: 05/03/2004)
SCHEDULE set on 5/24/04 by Hon. Morton Denlow : Settlement conference held. Progress made. Status hearing set to 10:00 6/24/04 . Mailed notice (dmk) (Entered: 05/25/2004)
SCHEDULE set on 5/25/04 by Hon. Ronald A. Guzman : Status hearing reset to 9:30 6/28/04 to follow Magistrate's status . Mailed and telephoned notice (cjg) (Entered: 05/25/2004)
SCHEDULE set on 5/26/04 by Hon. Morton Denlow : Settlement conference set for 2:00 6/16/04 . Mailed notice (dmk) (Entered: 05/26/2004)
SCHEDULE set on 6/16/04 by Hon. Morton Denlow : Settlement conference held. No Agreement reached. No notice (dmk) (Entered: 06/16/2004)
SCHEDULE set on 6/23/04 by Hon. Morton Denlow : Settlement Conferense held. Agreement in principle reached. Status hearing reset to 10:00 6/30/04. Status hearing set for 6/24/04 is stricken. Mailed notice (dmk) (Entered: 06/23/2004)
SCHEDULE set on 6/24/04 by Hon. Ronald A. Guzman : Status hearing reset to 9:30 7/9/04 on parties request . Mailed and telephoned notice (cjg) (Entered: 06/24/2004)

Case: 1:00-cv-05392 As of: 01/23/2011 03:00 PM CST 16 of 16

06/30/2004
06/30/2004 06/30/2004 06/30/2004 07/02/2004
07/08/2004

171 MINUTE ORDER of 6/30/04 by Hon. Morton Denlow: Status hearing held. Parties report they have reached an agreement. The parties consent to proceed before Magistrate Judge Denlow. Mailed notice (cdy) (Entered: 07/01/2004)
172 CONSENT by plaintiffs in 1:00−cv−05392 to exercise of jurisdiction by a United States Magistrate Judge. (ntf) (Entered: 07/06/2004)
173 CONSENT by defendants in 1:00−cv−05392 to exercise of jurisdiction by a United States Magistrate Judge. (ntf) (Entered: 07/06/2004)
175 STIPULATION by the parties to dismiss (cdy) (Entered: 07/09/2004)
174 REASSIGNMENT ORDER of 7/2/04 This case is reassigned to the Honorable Morton Denlow from Honorable Ronald Guzman pursuant to Local Rule 73.1 (For further detail see order.) Mailed notice (ntf) (Entered: 07/06/2004)
176 MINUTE ORDER of 7/8/04 by Hon. Morton Denlow: Pursuant to the stipulation to dismiss, the litigation is dismissed with prejudice and without leave to reinstate, each party shall bear its own costs, attorney's fees and expenses terminating case. Notices mailed by judge's staff (cdy) (Entered: 07/09/2004)

 
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« up

318 F.3d 716

Brian BRUGGEMAN, et al., Plaintiffs-Appellants, v.
George H. RYAN, et al., Defendants-Appellees.

No. 02-1730.

United States Court of Appeals, Seventh Circuit.

Submitted December 31, 2002. Decided January 3, 2003. Opinion January 27, 2003.

Robert H. Farley, Jr. (submitted), Naperville, IL, for Plaintiffs-Appellants. Steven M. Puiszis (submitted), Hinshaw & Culbertson, Chicago, IL, for Defendants-Appellees. Before POSNER, DIANE P. WOOD, and WILLIAMS, Circuit Judges. POSNER, Circuit Judge.

1

The United States filed an amicus curiae brief in this appeal on June 24, 2002, and

later a brief as an intervenor, pursuant to 28 U.S.C. § 2403(a), which provides that the

court "shall permit" the United States to intervene in a case when the constitutionality of

any Act of Congress affecting the public interest is challenged. The requirement that the

act affect the public interest is intended to exclude the occasional federal statute that has

a purely local or otherwise extremely circumscribed application, see, e.g., Cox v.

Schweiker, 684 F.2d 310, 319 (5th Cir.1982), and that is not the character of the statute at

issue here, as will appear. The appellees have moved to strike the second brief on the

ground that by filing it the government was trying to circumvent Fed. R.App. P. 29's

prohibition against the filing of reply briefs by amici curiae, and that in any event the

constitutionality of an Act of Congress is not being challenged and so the government has

no right to intervene. We allowed the government to submit both an amicus curiae brief

and an intervenor's brief in Doe v. University of Illinois, 200 F.3d 499 (7th Cir.1999), but

we did not discuss the propriety of the dual filing.

2

The government's amicus brief in this case, which was filed in support of the

appellants, was limited to the question whether, consistent with the principle of Ex parte

Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), suits seeking prospective

injunctive relief against state officials in their official capacity may be brought under Title

II of the Americans with Disabilities Act. Because an amicus brief must be filed within

seven days after the principal brief of the party in support of whom the amicus brief is

filed, Fed. R.App. P. 29, the government had no right to intervene at the time it filed its

amicus brief unless the constitutionality of a federal statute affecting the public interest

was at issue in the appeal. In their response to the appellants' brief, which obviously was

filed after the government filed its amicus brief, the appellees argued that the district

court had erred in denying their Eleventh Amendment defense to the plaintiffs' claim

under section 504 of the Rehabilitation Act. In doing this, the appellees were necessarily

challenging the constitutionality of 42 U.S.C. § 2000d-7(a)(1) which states in words that

could not be clearer that "a State shall not be immune under the Eleventh Amendment of

the Constitution of the United States from suit in Federal court for a violation of section

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« up504 of the Rehabilitation Act."

3

If the government could not reasonably have been expected to anticipate the

constitutional challenge in the appellees' brief, then as a practical matter there was no

alternative to the government's filing the two briefs at different times and so the dual filing was proper. See Fordyce v. City of Seattle, 55 F.3d 436, 441-42 (9th Cir.1995);

Mitchell v. Donovan, 290 F.Supp. 642, 645 (D.Minn.1968), vacated on other grounds,

398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970) (per curiam). Analysis is complicated,

however, by the fact that the government should have anticipated that the appellees

would raise the Eleventh Amendment as an alternative ground for upholding the district court's decision, thus inescapably presenting the issue of the constitutionality of the

provision of the civil rights act that we just quoted. For the appellees had moved to dismiss the case on Eleventh Amendment grounds in the district court, though

apparently no one had mentioned section 2000d-7(a)(1) and the district court had not, as

28 U.S.C. § 2403(a) requires when a federal statute's constitutionality is drawn into question, notified the Justice Department. In these circumstances, we do not think that

the Department's failure to intervene before the filing of the appellees' brief should operate as a forfeiture. The motion to strike is therefore

4

DENIED.

CC∅ | TRANSFORMED BY PUBLIC.RESOURCE.ORG

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« up

324 F.3d 906

Brian BRUGGEMAN by and through his parents, Kenneth and Carol Bruggeman, et al., Plaintiffs-Appellants, v.
Rod BLAGOJEVICH, et al., Defendants-Appellees.

No. 02-1730.

United States Court of Appeals, Seventh Circuit.

Argued January 6, 2003. Decided April 7, 2003.

COPYRIGHT MATERIAL OMITTED Robert H. Farley, Jr. (Argued), Naperville, IL, for PlaintiffsAppellants. Steven M. Puiszis (Argued), Hinshaw & Culbertson, Chicago, IL, for Defendants-Appellees. Before POSNER, DIANE P. WOOD, and WILLIAMS, Circuit Judges. POSNER, Circuit Judge.

1

Several developmentally disabled (i.e., mentally retarded) adults, residents of Illinois,

sue the responsible state officials, in their official capacity, for alleged violations of the

federal Medicaid statute, the Rehabilitation Act, and the Americans with Disabilities Act.

The district judge dismissed the Medicaid claim on the ground that the plaintiffs lacked

standing; he dismissed the Rehabilitation Act claim at the same time also for lack of

standing but without explaining why. Earlier he had dismissed the ADA claim on the

basis of our decision in Walker v. Snyder, 213 F.3d 344, 347 (7th Cir.2000), which holds

that only a state, and not state officials, may be sued for violations of the ADA and that

the state is immune from suit by virtue of the Eleventh Amendment.

2

The Medicaid statute, administered by each state that enrolls in the Medicaid program

but funded 50-50 by the state and the federal government, defrays certain medical

expenses of individuals such as these plaintiffs who lack the wherewithal to pay the

expenses themselves. The plaintiffs live at home with their parents in the Chicago

metropolitan area. The parents would prefer their children to live in institutions known

as "Intermediate Care Facilities for the Developmentally Disabled," most of which

however are located in southern Illinois, far from Chicago. The vacancy rate for ICF/DDs

in the Chicago area is very low, and the parents do not want to ship their children off to

ICF/DDs in the southern part of the state because of the time and expense that would be

entailed in traveling to visit them, and so they want the defendants to adopt a plan for

expanding the number of ICF/DDs in the northern part of the state. They argue, and for

purposes of this appeal we accept, that the defendants prefer the plaintiffs to live at

home because it would cost the state more to pay for their care in an institution, and so

the defendants refuse to write letters urging authorization of additional ICF/DDs in the

northern part of the state to the planning agency that is responsible for such

authorizations and without the letters the planning agency will not grant the

authorizations. The defendants' refusal to write the letters, the plaintiffs argue, violates

provisions of the Medicaid statute requiring that "medical assistance ... shall be furnished

with reasonable promptness to all eligible individuals," that the state's system of medical

assistance to Medicaid patients "shall be in effect in all political subdivisions of the State,"

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« upthat the assistance made available to any such patient "shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual," that any eligible individual "may obtain such assistance from any institution ... qualified to perform the ... services required... who undertakes to provide him such services," and that "services will be provided in a manner consistent with ... the best interests of the recipients." 42 U.S.C. §§ 1396a(a)(1), (8), (10)(B)(i), (19), (23).

3

The district judge ruled that none of these provisions entitled the plaintiffs to what

they were seeking and that therefore the plaintiffs had not been injured by a violation of

the statute and so lacked standing to sue. This is a misunderstanding of standing. A

plaintiff has standing to sue—that is, he can invoke the jurisdiction of the court—if he is

tangibly, materially, injured by the conduct of the defendant that he claims is unlawful

and if the relief he seeks would redress the injury in whole or in part and thus confer a

material benefit on him. Of course if his claim has no merit, then he has not been injured

by any wrongful conduct of the defendant; but if the consequence were that he lacked

standing, then every decision in favor of a defendant would be a decision that the court

lacked jurisdiction, entitling the plaintiff to start over in another court. The district court

decided that the plaintiffs have no right to live in an ICF/DD that is near their parents'

home and so the defendants' refusal to adopt a plan that would create vacancies in

ICF/DDs near the parents' home did not invade a legal right of the plaintiffs and so did

not cause them an injury for which they are entitled to redress. This was a ruling on the

merits, having nothing to do with jurisdiction.

4

Not that standing and the merits are always or in this case clearly distinct. The more

extreme a plaintiff's claim, the more likely he is to have standing to prosecute it; the more

moderate his claim, the less likely he is to have standing. If all that the plaintiffs were

seeking was a plan entitling them to reimbursement for the expense of residing in an

ICF/DD anywhere in Illinois, they would, we may assume, have a legally sound claim; but

they would have no standing to maintain it because there are ample vacancies in the

southern part of the state, and so the absence of a plan would not impair any right that

they claimed under the Medicaid statute. But if they claim a right to a wider choice of

ICF/DD vacancies than the defendants are willing to permit the planning agency to

authorize, then they are likely to have standing, because the absence of the plan they seek

is a denial of such an entitlement. Although their brief could be clearer on the point, it

seems that they are indeed pressing this more extreme claim. The district court rejected

the claim, but that was a rejection on the merits inaccurately described as a ruling that

the plaintiffs lack standing.

5

But notice that we said only that the plaintiffs are likely to have standing; the doubt

implicit in such a formulation arises from the tenuousness of the relation between the

relief sought in the lawsuit and an actual benefit to the plaintiffs if they prevail. They seek

merely a plan, which might not lead to an increase in the ICF/DD capacity in their

immediate geographical area. Even if it did, they might not benefit. An increase in supply

would evoke an increase in demand, since the plaintiffs are not the only developmentally

disabled adults in northern Illinois whose parents would like to place them in a nearby

ICF/DD and this is not a class action. So the plan the plaintiffs seek might not actually

increase the vacancy rate. Meanwhile, there are some vacancies in ICF/DDs located near

the plaintiffs' homes and for all that appears the plaintiffs will find places in an existing

such facility long before the plan they seek would enable them to find a place in a new

facility. The potential benefit to them from the relief that they seek thus is speculative.

6

But not so speculative as to negate standing, which is a matter of probabilities rather

than certainties. North Shore Gas Co. v. EPA, 930 F.2d 1239, 1242 (7th Cir.1991). The suit

seeks to remove a logjam that is preventing the creation of facilities desired by the

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« upplaintiffs, and if the likelihood of success is conjectural so is the argument for failure based on the possibility that any new facilities will be overwhelmed by other applicants.

7

So let us turn to the merits of the Medicaid claim, which have been fully argued despite

the district judge's ruling that the plaintiffs lack standing. The statutory entitlement to

reasonable promptness of medical services (42 U.S.C. § 1396a(a)(8)) is not infringed by

the maldistribution (as it seems to the plaintiffs) of ICF/DDs across the state. It is not as

if the plaintiffs require relocation to such a facility on an emergency basis, in which event

the remoteness of any such facility from their homes, where they are living at present,

would deprive them of prompt treatment. Even if they did require emergency treatment,

their theory of violation would be a considerable stretch because the statutory reference

to "assistance" appears to have reference to financial assistance rather than to actual

medical services, though the distinction was missed in Bryson v. Shumway, 308 F.3d 79,

81, 88-89 (1st Cir.2002), and Doe v. Chiles, 136 F.3d 709, 714, 717 (11th Cir.1998).

Medicaid is a payment scheme, not a scheme for state-provided medical assistance, as

through state-owned hospitals. The regulations that implement the provision indicate

that what is required is a prompt determination of eligibility and prompt provision of

funds to eligible individuals to enable them to obtain the covered medical services that

they need, see 42 C.F.R. §§ 435.911(a), .930(a)-(b); a requirement of prompt treatment

would amount to a direct regulation of medical services.

8

The plaintiffs argue that the state is not providing identical service statewide because

the vacancy rate is lower in the southern part of the state and this favors the people living

there over those who live in the northern part. The plaintiffs insist on a right of access to

facilities not merely in the county or the metropolitan area in which they live but within a

45-minute drive (or 30 miles) from their homes, as if every Medicaid recipient in Illinois

were entitled to be equidistant with every other from every facility that rendered services

for which such a recipient might be eligible. But the plaintiffs' argument carries even

further, because the plaintiffs vary in the degree and precise character of their disability

and as a result each has a unique set of needs and is demanding that an ICF/DD that is

tailored to his unique needs be within the 45-minute driving radius of his parents' home.

An unattainable goal that cannot rationally be attributed to the statute, Harris v. James,

127 F.3d 993, 1011 (11th Cir.1997); cf. Boatman v. Hammons, 164 F.3d 286, 290-92 (6th

Cir.1998), it doesn't even have a purchase in the statutory language, which requires

merely that the state not exclude any of its political subdivisions from the state's

Medicaid plan. The plan "shall be in effect in all political subdivisions of the State," 42

U.S.C. § 1396a(a)(1), but this doesn't mean that, as implemented, the plan has to assure

identical convenience of service everywhere in the state. Even less plausible is the

suggestion that lack of uniform proximity to medical facilities constitutes discrimination

among Medicaid recipients. 42 U.S.C. § 1396a(a)(10)(B). See Alexander v. Choate, 469

U.S. 287, 302-03, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985).

9

As for the right to obtain a needed medical service from a provider "who undertakes to

provide him such services," 42 U.S.C. § 1396a(a)(23), the aim is to give the recipient a

choice among available facilities, not to require the creation or authorization of new

facilities. See O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 785-86, 100 S.Ct.

2467, 65 L.Ed.2d 506 (1980); Kelly Kare, Ltd. v. O'Rourke, 930 F.2d 170, 177 (2d

Cir.1991); see also Catanzano v. Wing, 103 F.3d 223, 231 (2d Cir.1996). The language we

have quoted makes this clear. Finally, the "best interests" provision, 42 U.S.C. §

1396a(a)(19), is insufficiently definite to be justiciable, and in addition 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, 536 U.S. 273, 122

S.Ct. 2268, 2273-75, 153 L.Ed.2d 309 (2002), to implying such rights in spending

statutes. So the other circuits had held without even waiting for the Court to give them

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« uptheir marching orders in Gonzaga. Harris v. James, supra, 127 F.3d at 1009-11 and 1010 n. 24; Stewart v. Bernstein, 769 F.2d 1088, 1093 and n. 7 (5th Cir.1985); Bumpus v. Clark, 681 F.2d 679, 683-84 (9th Cir.1982), opinion withdrawn as moot, 702 F.2d 826 (9th Cir.1983).

10

In summary, the plaintiffs' Medicaid claim fails—on the merits—and we move on to the

other claims. We do not understand the district court's unexplained conclusion that the

plaintiffs lack standing to sue under the Rehabilitation Act. So far as bears on this case,

both that Act and the Americans with Disabilities Act entitle disabled persons (as the

plaintiffs undoubtedly are) to care in the least restrictive possible environment. There

may seem to be an element of paradox in the idea that a residential institution, such as an

ICF/DD (or an alternative called "Community Integrated Living Arrangements" (CILA),

which provides care in facilities that generally are smaller than ICF/DDs and offer the

residents somewhat more freedom, see http://w ww.thearcofil.org/newsletter

/n011102.html), provides a less restrictive alternative than living at home, especially

when some of the plaintiffs are seeking nonresidential services, enabling them to

continue to live at home, though this may be their second choice. The paradox is

dispelled by recognizing that parents, by reason of age or incapacity, may not be capable

of taking good care of their adult disabled children, in which event the home environment

may, realistically, be more restrictive of the child's opportunity to develop than an

institutional alternative.

11

At all events, the plaintiffs claim that by failing to offer an alternative to the home the

defendants are violating section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and

more specifically an implementing regulation which provides that "recipients [of federal

funding—the Rehabilitation Act is limited to such entities] shall administer programs and

activities in the most integrated setting appropriate to the needs of qualified

handicapped persons," 28 C.F.R. § 41.51(d), along with the corresponding and materially

identical provision of the ADA and a regulation under the ADA. 42 U.S.C. § 12132; 28

C.F.R. § 35.130(d). The district court did not consider the merits of these claims and the

briefs are virtually silent on their merits. So we shall have to remand this part of the case

unless we agree that it was properly dismissed on other grounds.

12

As with the Medicaid claim, the plaintiffs are seeking injunctive relief against state

officials in their official capacity. Such a suit is a suit against the state, and unless a state

consents to be sued in federal court, which Illinois has not done, the suit is barred by the

Eleventh Amendment. There is the Ex parte Young exception discussed below and there

is also the provision of the Civil Rights Act of 1964 that "a State shall not be immune

under the Eleventh Amendment of the Constitution of the United States from suit in

Federal court for a violation of section 504 of the Rehabilitation Act." 42 U.S.C. § 2000d-

7(a)(1). The defendants argue that this provision is unconstitutional. Their argument is

barred by Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir.2000), where we held that

because section 504 is applicable only to state activities that receive financial assistance

from the federal government, a state's decision to accept such assistance is a decision to

waive its Eleventh Amendment immunity. See also Koslow v. Commonwealth of

Pennsylvania, 302 F.3d 161, 170-71 (3d Cir.2002); Nihiser v. Ohio EPA, 269 F.3d 626, 628

(6th Cir.2001); Jim C. v. United States, 235 F.3d 1079, 1081-82 (8th Cir.2000) (en banc);

Pederson v. Louisiana State University, 213 F.3d 858, 875-76 (5th Cir.2000); Sandoval

v. Hagan, 197 F.3d 484, 493-94 (11th Cir.1999), rev'd on other grounds, 532 U.S. 275, 121

S.Ct. 1511, 149 L.Ed.2d 517 (2001). The defendant's constitutional argument not only is

blocked by stare decisis but is also forfeited, for by failing to cite Stanley (except on an

unrelated point) or to discuss the reasoning underlying it the defendants failed to

preserve their constitutional challenge to 42 U.S.C. § 2000d-7(a)(1).

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« up Stanley does not bar an Eleventh Amendment defense against the plaintiffs' ADA claim, however, because 42 U.S.C. § 2000d-7(a)(1) does not mention the ADA and so creates one of the few differences between that statute and the Rehabilitation Act. But Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), authorizes, notwithstanding the Eleventh Amendment, suits for prospective injunctive relief against state officials who as in this case are sued in their official capacity. It is true that Walker v. Snyder, cited earlier, held that only the state, and not state officials, may be sued for violating Title II of the ADA. But that holding, uniformly rejected by the other courts to have considered the issue, see Carten v. Kent State University, 282 F.3d 391, 396-97 (6th Cir.2002); Randolph v. Rodgers, 253 F.3d 342, 348 (8th Cir.2001); Roe v. Ogden, 253 F.3d 1225, 1233-34 (10th Cir.2001); Nelson v. Miller, 170 F.3d 641, 646-47 (6th Cir.1999); Armstrong v. Wilson, 124 F.3d 1019, 1025-26 (9th Cir.1997), did not survive Board of Trustees v. Garrett, 531 U.S. 356, 374 n. 9, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), where the Supreme Court said that such a suit is indeed authorized by Ex parte Young. Although Garrett was a suit under Title I of the ADA, which governs the employment of disabled persons, there is, as Walker had noted, 213 F.3d at 346, no relevant difference between Title I and Title II, which governs access to services, so far as the applicability of Ex parte Young is concerned.

14

So the dismissal of the plaintiffs' claims under the Rehabilitation Act and the ADA must

be set aside and the case remanded. For guidance on remand, we commend to the parties

and the district court Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540

(1999). With reference to 42 U.S.C. § 12132 and its implementing regulation, 28 C.F.R. §

35.130, the Court explained that "if ... the State were to demonstrate that it had a

comprehensive, effectively working plan for placing qualified persons with mental

disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace

not controlled by the State's endeavors to keep its institutions fully populated," the state

would not be violating the regulation. 527 U.S. at 605-06, 119 S.Ct. 2176. The purpose of

the regulation is not to constitute the federal courts the supervisors of the care and

treatment of disabled persons. It is to prevent the isolation or segregation of the disabled.

The issue on remand will be whether Illinois has a plan oriented to that end for

developmentally disabled adults.

15

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

CC∅ | TRANSFORMED BY PUBLIC.RESOURCE.ORG

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 TABLE OF CONTENTS

PAGE

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT:

Congress Validly Conditioned Receipt Of Federal Funds On A Waiver Of Eleventh Amendment Immunity For Private Claims Under Section 504 Of The Rehabilitation Act Of 1973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

-i-

CASES:

TABLE OF AUTHORITIES

PAGE

Alden v. Maine, 527 U.S. 706 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 18

Alexander v. Sandoval, 532 U.S. 275 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Arecibo Cmty. Health Care, Inc. v. Puerto Rico, 270 F.3d 17 (1st Cir. 2001), cert. denied, 123 S. Ct. 73 (2002) . . . . . . . . . 14

Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) . . . . . . . . . . . . 3, 9, 10, 15

Barnes v. Gorman, 122 S. Ct. 2097 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Boudreau v. Ryan, 2001 WL 840583 (N.D. Ill. May 2, 2001) . . . . . . . . . . . . . . . . 8

Carter v. Orleans Parish Pub. Schs., 725 F.2d 261 (5th Cir. 1984) . . . . . . . . . . . . 3

Cherry v. University of Wisc. Sys. Bd. of Regents, 265 F.3d 541 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) . . . . . . . . . . . . . . 18

Clark v. California, 123 F.3d 1267 (9th Cir. 1997), cert. denied, 524 U.S. 937 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 17

College Sav. Bank v. Florida Prepaid Postsec. Educ. Expense Bd., 527 U.S. 666 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 18

Garcia v. SUNY Health Scis. Ctr., 280 F.3d 98 (2d Cir. 2001) . . . . . . . . . . . passim

Grove City Coll. v. Bell, 465 U.S. 555 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . 13, 18

Jim C. v. Arkansas Dep’t of Educ., 235 F.3d 1079 (8th Cir. 2000) (en banc), cert. denied, 533 U.S. 949 (2001) . . . . . . . . . . . . . . . . . . . . . 11, 17

Koslow v. Pennsylvania, 302 F.3d 161 (3d Cir. 2002) . . . . . . . . . . . . . . . . . . 11, 17

-ii-

CASES (continued):

PAGE

Lane v. Peña, 518 U.S. 187 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Lapides v. Board of Regents, 122 S. Ct. 1640 (2002) . . . . . . . . . . . . . . . . . . . . . . 14

Lau v. Nichols, 414 U.S. 563 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 18

Litman v. George Mason Univ., 186 F.3d 544 (1999), cert. denied, 528 U.S. 1181 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

NCAA v. Smith, 525 U.S. 459 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Nihiser v. Ohio E.P.A., 269 F.3d 626 (6th Cir. 2001), cert. denied, 122 S. Ct. 2588 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 17

Pederson v. Louisiana State Univ., 213 F.3d 858 (5th Cir. 2000) . . . . . . . . . . . . 11

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) . . . . . . . . . . 16, 18

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) . . . . . . . . . . . . 16

Robinson v. Kansas, 295 F.3d 1183 (10th Cir. 2002) . . . . . . . . . . . . . . . . . . . 11, 17

Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999), rev’d on other grounds, 532 U.S. 275 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987) . . . . . . . . . 2, 3, 12, 18

Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) . . . . . . . . . . . . . . . . . . . . . . 8

South Dakota v. Dole, 483 U.S. 203 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Stanley v. Litscher, 213 F.3d 340 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5, 7, 8

Walker v. Snyder, 213 F.3d 344 (2000), cert. denied, 531 U.S. 1190 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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CONSTITUTION AND STATUTES:

PAGE

United States Constitution: Spending Clause, Art. I, § 8, Cl. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Eleventh Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Age Discrimination Act of 1975, 42 U.S.C. 6101 et seq. . . . . . . . . . . . . . . . . . . . . 4

Americans with Disabilities Act of 1990 (ADA) 42 U.S.C. 12131-12165 (Title II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. 12201(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 42 U.S.C. 12201(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Civil Rights Act of 1964, 42 U.S.C. 2000d et seq. (Title VI) . . . . . . . . . . . . passim

Education Amendments of 1972, 20 U.S.C. 1681 et seq. (Title IX) . . . . . . . passim

Medicaid Act, 42 U.S.C. 1396 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Rehabilitation Act of 1973, 29 U.S.C. 794 et seq. 29 U.S.C. 701(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 29 U.S.C. 701(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 29 U.S.C. 794 (Section 504) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 29 U.S.C. 794(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 29 U.S.C. 794(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506 (Tit. X) . . . . . . . . . 4 42 U.S.C. 2000d-7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. 2000d-7(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 11

11 U.S.C. 106(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

28 U.S.C. 2403(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

-iv-

LEGISLATIVE HISTORY:

PAGE

132 Cong. Rec. 28,624 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

MISCELLANEOUS:

22 Weekly Comp. Pres. Doc. 1421 (Oct. 27, 1986), reprinted in 1986 U.S.C.C.A.N. 3554 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

-v-

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 02-1730 EDWARD BOUDREAU, by and through his parents, Edwin and Ann Boudreau,
BRIAN BRUGGEMAN, by and through his parents, Kenneth and Carol Bruggeman, FRANCES CORSELLO, by and through his parents, Vincent and Agnes Corsello, et al., Plaintiffs - Appellants v.
GEORGE H. RYAN, in his official capacity as Governor of the State of Illinois, ANN PATLA, in her official capacity as Director of the Illinois Department of Public Aid, LINDA BAKER, in her official capacity as Secretary of the Illinois Department of Human Services, MELISSA WRIGHT, in her official capacity as
Associate Director of the Office of Developmental Disabilities, Defendants - Appellees
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS Honorable John F. Grady
BRIEF FOR THE UNITED STATES AS INTERVENOR
JURISDICTIONAL STATEMENT The plaintiffs-appellants’ jurisdictional statement is complete and correct.

STATEMENT OF THE ISSUES The United States will address the following question: Whether Congress validly conditioned the receipt of federal financial assistance on a waiver of States’ Eleventh Amendment immunity for suits under Section 504 of the Rehabilitation Act, 29 U.S.C. 794.
STATEMENT OF THE CASE 1. Section 504 of the Rehabilitation Act of 1973 provides that “[n]o otherwise qualified individual with a disability in the United States * * * shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. 794(a). Section 504 contains an “antidiscrimination mandate” that was enacted to “enlist[] all programs receiving federal funds” in Congress’s effort to eliminate discrimination against individuals with disabilities. School Bd. of Nassau County v. Arline, 480 U.S. 273, 286 n.15, 277 (1987). Congress found that “individuals with disabilities constitute one of the most disadvantaged groups in society,” and that they “continually encounter various forms of discrimination in such critical areas as employment, housing, public accommodations, education, transportation, communication,
-2-

recreation, institutionalization, health services, voting, and public services.” 29 U.S.C. 701(a)(2) & (a)(5).
Section 504 applies to a “program or activity,” a term defined to include “all of the operations” of a state agency, university, or public system of higher education “any part of which is extended Federal financial assistance.” 29 U.S.C. 794(b). Protections under Section 504 are limited to “otherwise qualified” individuals, that is, those persons who can meet the “essential” eligibility requirements of the relevant program or activity with or without “reasonable accommodation[s].” Arline, 480 U.S. at 287 n.17. An accommodation is not reasonable if it either imposes “undue financial and administrative burdens” on the grantee or requires “a fundamental alteration in the nature of [the] program.” Ibid. Section 504 may be enforced through private suits against recipients of federal funds. See Barnes v. Gorman, 122 S. Ct. 2097 (2002); Carter v. Orleans Parish Pub. Schs., 725 F.2d 261, 262 n.2 (5th Cir. 1984).
2. In 1985, the Supreme Court held that the language of Section 504 was not clear enough to evidence Congress’s intent to condition the acceptance of federal funding on a waiver of Eleventh Amendment immunity for private damages actions against state entities. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 245246 (1985). In response to Atascadero, Congress enacted 42 U.S.C. 2000d-7 as
-3-

part of the Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, Tit. X, §
1003, 100 Stat. 1845. Section 2000d-7(a)(1) provides in pertinent part:
A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 [29 U.S.C. 794], title IX of the Education Amendments of 1972 [20 U.S.C. 1681 et seq.], the Age Discrimination Act of 1975 [42 U.S.C. 6101 et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
3. In this case, individuals with disabilities brought suit against state
officials, sued in their official capacities, alleging that their practices violated, inter
alia, the Medicaid Act (through 42 U.S.C. 1983), Title II of the Americans with
Disabilities Act, and Section 504, and seeking “purely” prospective relief. Short
App. C at 7. The state officials moved to dismiss the action on the ground that the
Eleventh Amendment barred the suit. Id. at 6. The district court denied the motion
as to the Medicaid claims, holding that, under the Ex parte Young doctrine, state
officials sued in their official capacities for prospective injunctive relief are not
entitled to Eleventh Amendment immunity. Id. at 6-9. The district court also
denied the motion to dismiss the Section 504 claim on Eleventh Amendment
grounds, relying on this Court’s holding in Stanley v. Litscher, 213 F.3d 340, 344
(2000), that Congress validly conditioned the receipt of federal financial assistance
on the waiver of a state agency’s Eleventh Amendment immunity to Section 504
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claims. Id. at 6. The district court granted the defendants’ motion to dismiss the Title II claims, relying on this Court’s holding in Walker v. Snyder, 213 F.3d 344 (2000), cert. denied, 531 U.S. 1190 (2001), that Congress did not validly abrogate States’ Eleventh Amendment immunity to Title II claims. Id. at 9. The district court also held that the Ex parte Young doctrine was “inapplicable to Title II cases.” Ibid. After an evidentiary hearing, the court dismissed the Medicaid claims. Short App. B. Without referring to the remaining claim under Section 504, the district court entered a final judgment dismissing the action. Short App. A. This timely appeal followed.
The United States filed a brief on appeal as amicus curiae in support of the plaintiffs-appellants, arguing that this Court should overturn the holding in Walker that Ex parte Young suits are not available to enforce Title II claims. In its brief as appellee, the state defendant asserted (Def. Br. 61-64) that it enjoys Eleventh Amendment immunity to suits brought under Section 504 because it did not waive its immunity by accepting federal financial assistance. The United States now intervenes in this action pursuant to 28 U.S.C. 2403(a)1 in order to defend the
1 28 U.S.C. 2403(a) provides that, “[i]n any action, suit or proceeding in a court of the United States to which the United States * * * is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court * * * shall permit the United States to intervene * * * for
(continued...)
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constitutionality of 42 U.S.C. 2000d-7, which conditions the state defendant’s receipt of federal financial assistance on its agreement to waive its Eleventh Amendment immunity to private suits under Section 504.
SUMMARY OF ARGUMENT As this Court has held, the Eleventh Amendment is no bar to this action brought by a private plaintiff under Section 504 of the Rehabilitation Act to remedy discrimination on the basis of disability. Congress validly conditioned receipt of federal financial assistance on waiver of a State’s immunity to private suits brought to enforce Section 504 of the Rehabilitation Act. Any state agency or department is subject to the requirements of Section 504 if it accepts federal financial assistance conditioned upon a waiver of sovereign immunity. By enacting 42 U.S.C. 2000d-7, Congress put state agencies on clear notice that acceptance of any federal financial assistance was conditioned on a waiver of their Eleventh Amendment immunity to discrimination suits under Section 504. Congress validly conditioned federal funding on a state agency’s waiver of sovereign immunity. Thus, by accepting Medicaid funds, the state defendant waived its immunity to claims under Section 504. There is no reason for this Court to reconsider its
1(...continued) argument on the question of constitutionality.”
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holding in Stanley v. Litscher, 213 F.3d 340 (7th Cir. 2000), that States waive their
immunity to claims under Section 504 when they accept federal financial
assistance.
ARGUMENT
Congress Validly Conditioned Receipt Of Federal Funds On A Waiver Of Eleventh Amendment Immunity For Private Claims Under Section 504 Of
The Rehabilitation Act Of 1973
The Eleventh Amendment bars private suits against a State, absent a valid
abrogation by Congress or waiver by the State. See Alden v. Maine, 527 U.S. 706,
755-756 (1999). In Stanley v. Litscher, 213 F.3d 340 (7th Cir. 2000), this Court
held that Section 2000d-7 of Title 42 validly conditions the receipt of federal
financial assistance on a State’s waiver of Eleventh Amendment immunity to
private suits under Section 504. See id. at 344 (holding that Section 2000d-7 “is a
condition on the receipt of federal funds,” and is “enforceable in federal court
against recipients of federal largess”).2 For the reasons stated in this brief, there is
2 Although the defendants claim (Def. Br. 62) that “[r]esearch has disclosed no case from this Court addressing the issue” of whether a State waives its Eleventh Amendment immunity when it accepts federal funds, in fact the district court in this very case cited this Court’s decision in Stanley when it rejected these very defendants’ assertion that they are immune from suit on the plaintiffs’ Section 504 claims. See Boudreau v. Ryan, 2001 WL 840583, at *2 (N.D. Ill. May 2, 2001) (“As an initial matter, we note that the Eleventh Amendment does not bar the plaintiffs’ Rehabilitation Act claim. Stanley v. Litscher, 213 F.3d 340, 344 (7th
(continued...)
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no reason for this Court to reconsider its correct conclusion that Congress validly conditioned the receipt of federal financial assistance on a State’s waiver of its Eleventh Amendment immunity from suit under Section 504.
Section 2000d-7 is a valid exercise of Congress’s power under the Spending Clause, Art. I, § 8, Cl. 1, to condition receipt of federal financial assistance on waiver of sovereign immunity.3 States are free to waive their Eleventh Amendment immunity. See College Sav. Bank v. Florida Prepaid Postsec. Educ. Expense Bd., 527 U.S. 666, 674 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 64 (1996); Cherry v. University of Wisc. Sys. Bd. of Regents, 265 F.3d 541, 554 (7th Cir. 2001). And both this Court and the Supreme Court have held that “Congress may, in the exercise of its spending power, condition its grant of funds to the States upon their taking certain actions that Congress could not require them to take, and * * * acceptance of the funds entails an agreement to the actions.” College Sav. Bank, 527 U.S. at 686; see also Cherry, 265 F.3d at 554 (finding that, because “federal funds under Title IX are ‘gifts’ to the States, * * * Congress may, in its exercise of its spending power, condition its grant of funds to the States on
2(...continued) Cir. 2000).”). 3 Because the defendants admit that they have applied for and accepted Medicaid funds, there is no dispute about whether they receive federal financial assistance.
-8-

their consent to waive their immunity from suit” (quoting College Sav. Bank, 527 U.S. at 687)). Thus, Congress may, and has, conditioned the receipt of federal funds on the defendants’ waiver of Eleventh Amendment immunity to Section 504 claims. The defendants contend, nonetheless, that they have not waived their immunity because Section 2000d-7 does not clearly condition the receipt of federal financial assistance such as Medicaid funding on a waiver of immunity. This contention is without merit.
1. Section 2000d-7 was enacted in response to Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985), in which the Supreme Court held that Congress had not provided sufficiently clear statutory language to condition the receipt of federal financial assistance on a waiver of States’ Eleventh Amendment immunity for Section 504 claims and reaffirmed that “mere receipt of federal funds” was insufficient to constitute a waiver. Id. at 246. But the Court stated that, if a statute “manifest[ed] a clear intent to condition participation in the programs funded under the Act on a State’s consent to waive its constitutional immunity,” the federal courts would have jurisdiction over States that accepted federal funds. Id. at 247.
Section 2000d-7 makes clear that Congress intended to condition federal funding on a State’s waiver of Eleventh Amendment immunity to suit in federal court under Section 504 (and other non-discrimination statutes tied to federal
-9-

financial assistance). Any state agency reading the U.S. Code would have known
that after the effective date of Section 2000d-7 it would not have immunity to
private suits in federal court for violations of Section 504 if it accepted federal
funds. Section 2000d-7 thus embodies exactly the type of unambiguous condition
discussed by the Court in Atascadero, putting a State on express notice that part of
the “contract” for receiving federal funds was the requirement that it consent to suit
in federal court for alleged violations of Section 504 for those agencies that
received financial assistance.
The Supreme Court, in Lane v. Peña, 518 U.S. 187, 200 (1996),
acknowledged “the care with which Congress responded to our decision in
Atascadero by crafting an unambiguous waiver of the States’ Eleventh Amendment immunity” in Section 2000d-7.4 The Fourth Circuit, after an extensive analysis of
the text and structure of the Act, held in Litman v. George Mason University, 186
4 The Department of Justice explained to Congress while the legislation was under consideration, “[t]o the extent that the proposed amendment is grounded on congressional spending powers, [it] makes it clear to [S]tates that their receipt of Federal funds constitutes a waiver of their [E]leventh [A]mendment immunity.” 132 Cong. Rec. 28,624 (1986). On signing the bill into law, President Reagan similarly explained that the Act “subjects States, as a condition of their receipt of Federal financial assistance, to suits for violation of Federal laws prohibiting discrimination on the basis of handicap, race, age, or sex to the same extent as any other public or private entities.” 22 Weekly Comp. Pres. Doc. 1421 (Oct. 27, 1986), reprinted in 1986 U.S.C.C.A.N. 3554.
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F.3d 544, 554 (1999), cert. denied, 528 U.S. 1181 (2000), that “Congress succeeded in its effort to codify a clear, unambiguous, and unequivocal condition of waiver of Eleventh Amendment immunity in 42 U.S.C. § 2000d-7(a)(1).” Seven other courts of appeals have agreed with this Court’s holding in Stanley that the language in Section 2000d-7 clearly manifests an intent to condition receipt of federal financial assistance on waiver of Eleventh Amendment immunity, and there is no reason to reconsider that holding. See Koslow v. Pennsylvania, 302 F.3d 161 (3d Cir. 2002) (Section 504); Robinson v. Kansas, 295 F.3d 1183, 1189-1190 (10th Cir. 2002); Garcia v. SUNY Health Scis. Ctr., 280 F.3d 98, 113 (2d Cir. 2001) (Section 504); Nihiser v. Ohio E.P.A., 269 F.3d 626 (6th Cir. 2001) (Section 504), cert. denied, 122 S. Ct. 2588 (2002); Jim C. v. Arkansas Dep’t of Educ., 235 F.3d 1079, 1081-1082 (8th Cir. 2000) (en banc) (Section 504), cert. denied, 533 U.S. 949 (2001); Pederson v. Louisiana State Univ., 213 F.3d 858, 875-876 (5th Cir. 2000) (Title IX); Sandoval v. Hagan, 197 F.3d 484, 493-494 (11th Cir. 1999) (Title VI), rev’d on other grounds, 532 U.S. 275 (2001); Clark v. California, 123 F.3d 1267, 1271 (9th Cir. 1997) (Section 504), cert. denied, 524 U.S. 937 (1998).
The defendants appear to be arguing (Def. Br. 62) that they have not waived their immunity because they have not received any funds under the Rehabilitation Act itself. But this argument is contrary to the unambiguous language of both
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Section 504 and Section 2000d-7. The obligations in Section 504 apply to any program or activity receiving federal financial assistance. The waiver of immunity in Section 2000d-7 similarly applies to “recipients of Federal financial assistance.”
It is well-settled that Congress can impose in a single statute a condition that applies to all federal financial assistance. Section 504’s nondiscrimination requirement is patterned on Title VI and Title IX, which prohibit race and sex discrimination by “programs” that receive federal funds. See NCAA v. Smith, 525 U.S. 459, 466 n.3 (1999); School Bd. of Nassau County v. Arline, 480 U.S. 273, 278 n.2 (1987). Both Title VI and Title IX have been upheld as valid Spending Clause legislation. In Lau v. Nichols, 414 U.S. 563 (1974), the Supreme Court held that Title VI, which the Court interpreted to prohibit a school district from ignoring the disparate impact its policies had on limited-English proficiency students, was a valid exercise of the Spending Power. “The Federal Government has power to fix the terms on which its money allotments to the States shall be disbursed. Whatever may be the limits of that power, they have not been reached here.” 414 U.S. at 569 (citations omitted).5 The Court made a similar finding in Grove City College v.
5 In Alexander v. Sandoval, 532 U.S. 275, 285 (2001), the Court noted that it has “rejected Lau’s interpretation of § 601 [of the Civil Rights Act of 1964, 42 U.S.C. 2000d] as reaching beyond intentional discrimination.” The Court did not cast doubt on the Spending Clause holding in Lau.
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Bell, 465 U.S. 555 (1984). In Grove City, the Court addressed whether Title IX, which prohibits education programs or activities receiving federal financial assistance from discriminating on the basis of sex, infringed on the college’s First Amendment rights. The Court rejected that claim, holding that “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept.” Id. at 575.
The obligation to answer to private suits filed under Section 504 is incurred only when a recipient elects to accept federal financial assistance conditioned on a waiver of sovereign immunity. If a state agency does not wish to accept these conditions, it is free to decline the assistance. But if it does accept federal money, then it is clear that it is bound by the conditions.
Because Congress has made it entirely clear that a State’s decision to accept federal funds subjects it to suit under Section 504, there is no requirement – contrary to the defendants’ suggestion (Def. Br. 63-64) – that a state agency’s assent to the waiver be manifested in a manner apart from its voluntary action in accepting the federal funds. The same is true in other settings in which a waiver of Eleventh Amendment immunity is triggered by an action completely within the control of a state agency. For example, in the bankruptcy context, the courts of appeals are in agreement that, after Congress made clear in 11 U.S.C. 106(b) that
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the effect of filing a proof of claim in bankruptcy court would be a waiver of immunity from claims arising out of the same transaction or occurrence, state agencies waive their Eleventh Amendment immunity by filing a proof of claim. See, e.g., Arecibo Cmty. Health Care, Inc. v. Puerto Rico, 270 F.3d 17, 27-28 (1st Cir. 2001) (so holding and collecting cases), cert. denied, 123 S. Ct. 73 (2002); see also Lapides v. Board of Regents, 122 S. Ct. 1640, 1643-1645 (2002) (discussing ability of the States to waive Eleventh Amendment immunity through litigation conduct).
2. The defendants rely on the Second Circuit’s decision in Garcia v. SUNY Health Sciences Center, 280 F.3d 98 (2001), to support their claim that the waiver condition in Section 2000d-7 is invalid. The Garcia court agreed with every other court of appeals (including this one) that has considered the question whether Section 2000d-7 unambiguously conditions the acceptance of federal financial assistance on a State’s waiver of Eleventh Amendment immunity. The court held that Section 2000d-7 “constitutes a clear expression of Congress’s intent to condition acceptance of federal funds on a state’s waiver of its Eleventh Amendment immunity.” Id. at 113. The court went on to hold that the waiver was not effective in that case because the state agency did not “know” in 1995 (the latest point the alleged discrimination had occurred) that the abrogation in Title II
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of the ADA was not effective and thus would have thought (wrongly, in the view of the Second Circuit) that the abrogation for Title II claims made the waiver for Section 504 redundant, id. at 114.
This Court should not follow that reasoning because it is incorrect. The Garcia panel recognized that Congress could condition the receipt of funds on a waiver of immunity, so long as the waiver was “knowing,” but it misconstrued what that term means in the context of a Spending Clause statute. The reason the Supreme Court, in Atascadero, required that Congress make its intention clear is so that, when a State applies for and receives federal financial assistance, there can be no question that it made the decision with knowledge that it could be subjected to private suits. The clarity required by Atascadero and provided by Section 2000d-7 exists to ensure, as a matter of law, that recipients “exercise their choice knowingly, cognizant of the consequence of their participation.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). A State could not have thought that it was not waiving immunity to suit under Section 504. The language of Section 2000d-7 is absolute. Congress did not repeal Section 504 or Section 2000d-7 when it enacted the Americans with Disabilities Act of 1990. Although Title II must be interpreted to be at least as protective as Section 504, see 42 U.S.C. 12201(a), Congress did not abolish the Section 504 cause of action. To the
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contrary, Congress preserved it. See 42 U.S.C. 12201(b). Thus, whatever functional equivalence the two causes of action have, they remain formally distinct causes of action and require separate provisions removing immunity. Cf. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 103 n.12 (1984) (Eleventh Amendment immunity must be assessed claim by claim).
The Garcia panel’s theory produces anomalous results. A state agency that accepted funds after Congress enacted Section 2000d-7 in 1986 did waive its immunity to suit. This waiver was effective at least until 1990 – when Title II was enacted – and possibly until 1992 – when Title II became effective. But at that time, according to the Garcia panel, although Section 504 and Section 2000d-7 remained the same, the State’s knowing waiver became unknowing. Indeed, the panel would have a State’s Section 504 waiver depend upon the current state of the case law adjudicating the abrogation provision of the ADA.
In any event, the panel was incorrect in holding that a party who may have relied on the current state of the law in making a choice to waive constitutional rights cannot be said to have made an effective waiver simply because of subsequent changes of law. Thus, the panel opinion in Garcia is not persuasive and should not be followed. This Court should instead continue to align itself with the five other courts of appeals to address the issue in holding that Section 2000d-7
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put state agencies on notice that acceptance of federal financial assistance constituted a waiver of Eleventh Amendment immunity to Section 504 suits. See Koslow v. Pennsylvania, 302 F.3d 161 (3d Cir. 2002); Robinson v. Kansas, 295 F.3d 1183 (10th Cir. 2002); Nihiser v. Ohio E.P.A., 269 F.3d 626 (6th Cir. 2001), cert. denied, 122 S. Ct. 2588 (2002); Jim C. v. Arkansas Dep’t of Educ., 235 F.3d 1079, 1081-1082 (8th Cir. 2000) (en banc), cert. denied, 533 U.S. 949 (2001); Clark v. California, 123 F.3d 1267, 1271 (9th Cir. 1997), cert. denied, 524 U.S. 937 (1998).
3. The defendants do not dispute that Congress has the power under the Spending Clause, Art. I, § 8, Cl. 1, to condition the receipt of federal financial assistance on a State’s waiver of its Eleventh Amendment immunity to Section 504 claims. See College Sav. Bank, 527 U.S. at 686; Alden, 527 U.S. at 755. Nor do they dispute, except with respect to the clear statement issue addressed supra, that Sections 504 and 2000d-7 meet the four primary limitations on Congress’s Spending Power identified in South Dakota v. Dole, 483 U.S. 203 (1987): (1) the general welfare is served by prohibiting discrimination against persons with disabilities, see City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 443-444 (1985) (discussing Section 504 with approval); Dole, 483 U.S. at 207 n.2 (noting substantial judicial deference to Congress on this issue); (2) the language of Section
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504 makes clear that the obligations it imposes are a condition on the receipt of federal financial assistance, see Arline, 480 U.S. at 286 n.15 (contrasting “the antidiscrimination mandate of § 504” with the statute in Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981)); (3) the condition is related to the federal government’s overarching interest in not supporting or subsidizing discrimination, cf. Lau, 414 U.S. at 569 (Title VI is valid Spending Clause legislation); Grove City Coll., 465 U.S. at 575(same for Title IX); and (4) neither providing meaningful access to people with disabilities nor waiving sovereign immunity violates any constitutional rights.6
6 The plaintiffs may also proceed with their Section 504 claims against the named state officials in their official capacities for prospective injunctive relief under the doctrine of Ex parte Young.
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CONCLUSION This Court should affirm the district court’s finding that Section 504 and Section 2000d-7 validly condition the receipt of federal financial assistance on a State’s waiver of Eleventh Amendment immunity and that the state defendant in this case has waived its immunity to claims under Section 504.
Respectfully submitted, RALPH F. BOYD, JR. Assistant Attorney General
JESSICA DUNSAY SILVER SARAH E. HARRINGTON
Attorneys U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave. NW, PHB 5020 Washington, D.C. 20530 (202) 305-7999
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CERTIFICATE OF COMPLIANCE I certify that, pursuant to Fed. R. App. P. 32(a)(7)(C), the attached brief is proportionately spaced, has a typeface of 14 points and contains 4,130 words.

November 25, 2002

____________________________ SARAH E. HARRINGTON
Attorney U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave. NW, PHB 5020 Washington, DC 20350 (202) 305-7999

CERTIFICATE OF SERVICE

I hereby certify that, on November 25, 2002, two copies of the foregoing

Brief for the United States as Intervenor, along with a digital copy of the brief,

were served by overnight mail, postage prepaid, on the following counsel:

Robert H. Farley, Jr. 1155 S. Washington Street, Suite 202 Naperville, IL 60540
Steven M. Puiszis Hinshaw & Culbertson 222 N. LaSalle Street, Suite 300 Chicago, IL 60601-1081

Access Living of Metropolitan Chicago 614 West Roosevelt Road Chicago, Illinois 60607

John W. Whitcomb Equip For Equality, Inc. 11 East Adams Street, Suite 1200 Chicago, Illinois 60603
Benjamin S. Wolf Roger Baldwin Foundation American Civil Liberties Union of Illinois 180 North Michigan, Suite 2300 Chicago, Illinois 60601

SARAH E. HARRINGTON Attorney
U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave. NW, PHB 5020 Washington, D.C. 20530 (202) 305-7999

Kenneth M. Walden

 
 TABLE OF CONTENTS

PAGE

INTEREST OF THE UNITED STATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT:

SUITS UNDER TITLE II MAY BE BROUGHT AGAINST STATE OFFICIALS IN THEIR OFFICIAL CAPACITIES FOR PROSPECTIVE RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The Eleventh Amendment Is No Bar To Private Suits Against State Officials To Enjoin Future Violations Of Federal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. Congress Did Not Display Any Intent To Foreclose Jurisdiction Under Ex parte Young For Suits Under Title II And Section 504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

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CASES:

TABLE OF AUTHORITIES

PAGE

ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . 19

Alden v. Maine, 527 U.S. 706 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Alexander v. Choate, 469 U.S. 287 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Alexander v. Sandoval, 532 U.S. 275 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Armstrong v. Wilson, 124 F.3d 1019 (9th Cir. 1997), cert. denied, 524 U.S. 937 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Ashley v. United States, 266 F.3d 671 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . 5

Baker v. Bell, 630 F.2d 1046 (5th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Barnes v. Gorman, No. 01-682, 2002 WL 1305773 (June 17, 2002) . . . . . . . . . . 13

Bazemore v. Friday, 478 U.S. 385 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Brennan v. Stewart, 834 F.2d 1248 (5th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . 17

Califano v. Yamasaki, 442 U.S. 682 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Campbell v. Kruse, 434 U.S. 808 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Cannon v. University of Chicago, 441 U.S. 677 (1979) . . . . . . . . . . . . . . . . . . . . 16

Carten v. Kent State Univ., 282 F.3d 391 (6th Cir. 2002) . . . . . . . . . . . . . . . . 19, 21

Disabled In Action v. Sykes, 833 F.2d 1113 (3d Cir. 1987), cert. denied, 485 U.S. 989 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Edelman v. Jordan, 415 U.S. 651 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Edwards v. Illinois Bd. of Admissions, 261 F.3d 723 (7th Cir. 2001) . . . . . . . . . . . 7

-ii-

CASES (continued):

PAGE

EEOC v. Board of Regents of Univ. of Wis. Sys., 288 F.3d 296 (7th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Ellis v. University of Kan. Med. Ctr., 163 F.3d 1186 (10th Cir. 1998) . . . . . . . . . 12

Ex parte Young, 209 U.S. 123 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992) . . . . . . . . . . . . . 12, 13

Garrity v. Sununu, 752 F.2d 727 (1st Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Gibson v. Arkansas Dep’t of Corr., 265 F.3d 718 (8th Cir. 2001) . . . . . . . . . 12, 14

Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030 (7th Cir. 1987) . . . . . . . . . . 16

Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Green v. Mansour, 474 U.S. 64 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Hafer v. Melo, 502 U.S. 21 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Helms v. McDaniel, 657 F.2d 800 (5th Cir. 1981), cert. denied, 455 U.S. 946 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Hendrickson v. Griggs, 672 F. Supp. 1126 (N.D. Iowa 1987) . . . . . . . . . . . . . . . 19

Honig v. Students of Cal. Sch. for the Blind, 471 U.S. 148 (1985) . . . . . . . . . . . . 16

Hurry v. Jones, 734 F.2d 879 (1st Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997) . . . . . . . . . . . . . . . . 20

In re Ellett, 254 F.3d 1135 (9th Cir. 2001), cert. denied, 122 S. Ct. 1064 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 20

J.B. ex rel. Hart v. Valdez, 186 F.3d 1280 (10th Cir. 1999) . . . . . . . . . . . . . . . . . 21

Joseph A. v. Ingram, 275 F.3d 1253 (10th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . 12

Joyner v. Dumpson, 712 F.2d 770 (2d Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . 17

-iii-

CASES (continued):

PAGE

Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . 17

Kentucky Ass’n for Retarded Citizens, Inc. v. Conn, 674 F.2d 582 (6th Cir.), cert. denied, 459 U.S. 1041 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Kentucky v. Graham, 473 U.S. 159 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 18

Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Lau v. Nichols, 414 U.S. 563 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Lieberman v. University of Chicago, 660 F.2d 1185 (7th Cir. 1981), cert. denied, 456 U.S. 937 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Lorillard v. Pons, 434 U.S. 575 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Lussier v. Dugger, 904 F.2d 661 (11th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . 17

Marie O. v. Edgar, 131 F.3d 610 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . 12

Miener v. Missouri, 673 F.2d 969 (8th Cir.), cert. denied, 459 U.S. 909 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17

Monell v. Department of Soc. Servs., 436 U.S. 658 (1978) . . . . . . . . . . . . . . . . . . . 6

Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Olmstead v. L.C., 527 U.S. 581 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Osteen v. Henley, 13 F.3d 221 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Parks v. Pavkovic, 753 F.2d 1397 (7th Cir.), cert. denied, 473 U.S. 906 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Phillips v. Thompson, 715 F.2d 365 (7th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . 17

Plummer v. Branstad, 731 F.2d 574 (8th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . 17

Porter v. Warner Holding Co., 328 U.S. 395 (1946) . . . . . . . . . . . . . . . . . . . . . . 13

-iv-

CASES (continued):

PAGE

Randolph v. Rodgers, 253 F.3d 342 (8th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 20, 21

Roe No. 2 v. Ogden, 253 F.3d 1225 (10th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . 21

S-1 v. Turlington, 635 F.2d 342 (5th Cir.), cert. denied, 454 U.S. 1030 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999), rev’d on other grounds, 532 U.S. 275 (2001) . . . . . . . . . . . . . . . . . . . . . . . 12

Santee Sioux Tribe v. Nebraska, 121 F.3d 427 (8th Cir. 1997) . . . . . . . . . . . . . . . 12

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) . . . . . . . . . . . . . . passim

Smith v. Metropolitan Sch. Dist., 128 F.3d 1014 (7th Cir. 1997), cert. denied, 524 U.S. 951 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Smith v. Robinson, 468 U.S. 992 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Stanley v. Litscher, 213 F.3d 340 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . 3, 15

Telespectrum, Inc. v. Public Serv. Comm’n, 227 F.3d 414 (6th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

United Handicapped Fed’n v. Andre, 558 F.2d 413 (8th Cir. 1977) . . . . . . . . . . 17

United States v. Alabama, 791 F.2d 1450 (11th Cir. 1986) . . . . . . . . . . . . . . . . . 16

United States v. Carlos-Colmenares, 253 F.3d 276 (7th Cir.), cert. denied, 122 S. Ct. 258 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

University of Alabama v. Garrett, 531 U.S. 356 (2001) . . . . . . . . . . . . . . . 4, 7, 8, 9

Verizon Maryland, Inc. v. Public Serv. Comm’n of Md., 122 S. Ct. 1753 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000), cert. denied, 531 U.S. 1190 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Whetsel v. Network Prop. Servs., LLC, 246 F.3d 897 (7th Cir. 2001) . . . . . . . . . . 6

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CONSTITUTION AND STATUTES:

PAGE

United States Constitution Supremacy Clause, Art. VI, Cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 Eleventh Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 18

Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq . . passim 42 U.S.C. 12101(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Title I, 42 U.S.C. 12111-12117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 9 Title II, 42 U.S.C. 12131-12165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. 12131(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 42 U.S.C. 12131(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 42 U.S.C. 12131(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 42 U.S.C. 12132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 42 U.S.C. 12133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 12, 15 Title III, 42 U.S.C. 12181-12189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. 12202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Civil Rights Act of 1964, 42 U.S.C. 2000d et seq. (Title VI) . . . . . . . . . . . . passim

Education Amendments of 1972, 20 U.S.C. 1681 et seq. (Title IX) . . . . . . . . 13, 20

Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701 et seq. . . . . . . . 10, 12, 14 25 U.S.C. 2710(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 25 U.S.C. 2710(d)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Medicaid Act, 42 U.S.C. 1396 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rehabilitation Act of 1973, 29 U.S.C. 701 et seq. 29 U.S.C. 794 (Section 504) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 29 U.S.C. 794a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 15 29 U.S.C. 794a(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Telecommunications Act of 1996, 47 U.S.C. 151 et seq. . . . . . . . . . . . . . 10, 11, 15 47 U.S.C. 251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12 47 U.S.C. 252 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12 47 U.S.C. 252(e)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 47 U.S.C. 252(e)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

42 U.S.C. 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

-vi-

RULES:

PAGE

Fed. R. Civ. P. 65(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

LEGISLATIVE HISTORY:
H.R. Rep. No. 485, 101st Cong., 2d Sess. (1990): Pt. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Pt. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
136 Cong. Rec. 11,471 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

-vii-

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 02-1730 EDWARD BOUDREAU, by and through his parents, Edwin and Ann Boudreau,
BRIAN BRUGGEMAN, by and through his parents, Kenneth and Carol Bruggeman, FRANCES CORSELLO, by and through his parents, Vincent and Agnes Corsello, et al., Plaintiffs - Appellants v.
GEORGE H. RYAN, in his official capacity as Governor of the State of Illinois, ANN PATLA, in her official capacity as Director of the Illinois Department of Public Aid, LINDA BAKER, in her official capacity as Secretary of the Illinois Department of Human Services, MELISSA WRIGHT, in her official capacity as
Associate Director of the Office of Developmental Disabilities, Defendants - Appellees
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING APPELLANTS AND URGING REVERSAL
INTEREST OF THE UNITED STATES This appeal involves the ability of individuals to seek judicial enforcement of Title II of the Americans with Disabilities Act against state officials for injunctive relief. The Attorney General has authority to enforce Title II. See 42 U.S.C. 12133. However, because of the inherent limitations on administrative enforcement mechanisms and on the litigation resources of the United States, the

-2United States has an interest in ensuring that the Disabilities Act can be enforced in federal court by private parties acting as “private attorneys general” to the extent permitted by the statute and the Constitution.
STATEMENT OF THE ISSUES The United States will address the following question: Whether an individual may sue a state official in his official capacity to enjoin continuing violations of Title II of the Americans with Disabilities Act.
STATEMENT OF THE CASE 1. Congress enacted the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq., to establish a “comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. 12101(b)(1). The ADA targets three particular areas of discrimination against persons with disabilities. Title I, 42 U.S.C. 12111-12117, addresses discrimination by employers affecting interstate commerce; Title II, 42 U.S.C. 12131-12165, addresses discrimination by governmental entities in the operation of public services, programs, and activities, including transportation; and Title III, 42 U.S.C. 12181-12189, addresses discrimination in public accommodations operated by private entities. This case involves a suit filed under, inter alia, Title II. Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such

-3entity.” 42 U.S.C. 12132. A “public entity” is defined to include “any State or local government” and its components. 42 U.S.C. 12131(1)(A) and (B). A “[q]ualified individual with a disability” is a person “who, with or without reasonable modifications * * * meets the essential eligibility requirements” for the governmental program or service. 42 U.S.C. 12131(2). Title II may be enforced through private suits against public entities. 42 U.S.C. 12133. Congress expressly abrogated the States’ Eleventh Amendment immunity to private suits in federal court. 42 U.S.C. 12202.
2. In this case, individuals with disabilities brought suit against state officials, sued in their official capacities, alleging that their practices violated, inter alia, the Medicaid Act (through 42 U.S.C. 1983), Title II, and Section 504 of the Rehabilitation Act, and seeking “purely” prospective relief. Short App. C at 7. The state officials moved to dismiss the action on the ground that the Eleventh Amendment barred the suit. Id. at 6. The district court denied the motion as to the Medicaid claims, holding that under the Ex parte Young doctrine, which provides that state officials sued in their official capacities for prospective injunctive relief are not entitled to Eleventh Amendment immunity, the claims were not barred. Id. at 6-9. The district court also denied the motion to dismiss the Section 504 claim on Eleventh Amendment grounds, relying on this Court’s holding in Stanley v. Litscher, 213 F.3d 340, 344 (2000), that Congress validly conditioned the receipt of federal financial assistance on the waiver of a state agency’s Eleventh Amendment immunity to Section 504 claims. Id. at 6.

-4But the district court granted defendants’ motion to dismiss the Title II claims, relying on this Court’s holding in Walker v. Snyder, 213 F.3d 344 (2000), cert. denied, 531 U.S. 1190 (2001), that Congress did not validly abrogate States’ Eleventh Amendment immunity to Title II claims. Id. at 9. The district court also held that the Ex parte Young doctrine was “inapplicable to Title II cases.” Ibid. While the court noted that the Supreme Court’s recent decision in University of Alabama v. Garrett, 531 U.S. 356, 374 n.9 (2001), suggested that Ex parte Young was available to enforce Title I of the Americans with Disabilities Act, the district court determined that it was bound by this Court’s holding in Walker that the doctrine was not available to enforce Title II. Id. at 9-10 n.5. After an evidentiary hearing, the court dismissed the Medicaid claims. Short App. B. Without referring to the remaining claim under Section 504, the district court entered a final judgment dismissing the action. Short App. A. This timely appeal followed.
SUMMARY OF ARGUMENT The Eleventh Amendment is no bar to this action proceeding under Title II on the claims for injunctive relief against defendants, state officials sued in their official capacities. Under the doctrine of Ex parte Young, a state official sued for prospective relief to enjoin a continuing violation of federal law is not entitled to invoke the State’s sovereign immunity. In enacting Title II of the Americans with Disabilities Act (ADA), Congress intended to permit suits against state officials in their official capacities. The language of the statute clearly permits such a reading.

-5Moreover, Title II of the ADA specifically incorporates the remedial scheme of Section 504 of the Rehabilitation Act, which, in turn, incorporated the remedial scheme of Title VI of the Civil Rights Act of 1964. Both Title VI and Section 504 have consistently been interpreted to permit suits against government officials in their official capacities for injunctive relief and Congress was aware of that judicial interpretation. Moreover, the legislative history of the ADA confirms Congress’s intent to make available the full panoply of remedies.
This Court in Walker v. Snyder, 213 F.3d 344 (2000), cert. denied, 531 U.S. 1190 (2001), held that Title II suits could not be brought against state officials in their official capacities. We believe this Court should re-examine that holding in light of two intervening Supreme Court decisions, as well as other circumstances, and conclude that it was wrongly decided.
ARGUMENT SUITS UNDER TITLE II MAY BE BROUGHT AGAINST STATE OFFICIALS
IN THEIR OFFICIAL CAPACITIES FOR PROSPECTIVE RELIEF In Walker v. Snyder, 213 F.3d 344, 347 (2000), cert. denied, 531 U.S. 1190 (2001), this Court held that Ex parte Young suits were unavailable under Title II of the Americans with Disabilities Act (ADA). There are three substantial bases for re-examining Walker’s holding on this point. First, as the district court noted (Short App. C at 9-10 n.5), intervening Supreme Court decisions have drawn this holding into doubt. See Ashley v. United States, 266 F.3d 671, 674 (7th Cir. 2001) (relying on “strands of analysis” of intervening Supreme Court opinion to overrule

-6recent panel decision). Second, the issue was not fully briefed in Walker -- the plaintiff was pro se and the United States, participating as intervenor, focused on the validity of the abrogation -- and thus the panel was not presented with the arguments contained herein regarding the text, structure, legislative history, and prior interpretations of earlier statutes. See Whetsel v. Network Prop. Servs., LLC, 246 F.3d 897, 903 (7th Cir. 2001) (that a panel “might not have had [a particular] argument before it” is “a sufficient reason for reconsidering” the panel’s holding); see also Monell v. Department of Soc. Servs., 436 U.S. 658, 709 & n.6 (1978) (Powell, J., concurring). And finally, the decision in Walker has created a split with the four other circuits to address the issue. “In the interest of promoting uniformity of federal law,” this Court has “an obligation to reconsider [its] now isolated position.” United States v. Carlos-Colmenares, 253 F.3d 276, 277 (7th Cir.), cert. denied, 122 S. Ct. 258 (2001). We thus urge this Court to re-examine and overrule Walker and permit this suit to proceed against the state officials in their official capacities.
A. The Eleventh Amendment Is No Bar To Private Suits Against State Officials To Enjoin Future Violations Of Federal Law
The Eleventh Amendment bars private suits against a State sued in its own name, absent a valid abrogation by Congress or waiver by the State. See Alden v. Maine, 527 U.S. 706, 755-756 (1999). In Walker, 213 F.3d at 347, this Court held that Congress’s abrogation of Eleventh Amendment immunity for claims under Title II of the Americans with Disabilities Act involving reasonable

-7accommodations was not a valid exercise of Congress’s authority to enforce the Fourteenth Amendment. Thus, if this private suit had been brought against the State in its own name, under current circuit precedent it might well be barred by the State’s Eleventh Amendment immunity. Cf. Edwards v. Illinois Bd. of Admissions, 261 F.3d 723, 731 (7th Cir. 2001) (suggesting that validity of abrogation for Title II was an open question). But this Court need not reach that question, as this suit was brought against state officials in their official capacities seeking only prospective injunctive relief.
The absence of a valid abrogation or waiver does not mean that States may ignore the ADA or, if they do, that private parties have no remedy in federal court. The Supreme Court, in University of Alabama v. Garrett, 531 U.S. 356 (2001), reaffirmed that Eleventh Amendment immunity does not authorize States to violate federal law. For a holding that “Congress did not validly abrogate the States’ sovereign immunity from suit by private individuals for money damages * * * does not mean that persons with disabilities have no federal recourse against discrimination.” Id. at 374 n.9; see also Alden, 527 U.S. at 754-755 (“The constitutional privilege of a State to assert its sovereign immunity * * * does not confer upon the State a concomitant right to disregard the Constitution or valid federal law.”); Osteen v. Henley, 13 F.3d 221, 223 (7th Cir. 1993) (“The immunity that the Eleventh Amendment grants does not go so far as to allow state officials to ignore federal law with impunity.”).

-8It was to reconcile these very principles — that States have Eleventh Amendment immunity from private suits, but that they are still bound by federal law — that the Supreme Court adopted the rule of Ex parte Young. See Alden, 527 U.S. at 756.1 Ex parte Young, 209 U.S. 123 (1908), held that when a state official acts in violation of the Constitution or federal law (which the Constitution’s Supremacy Clause makes the “supreme Law of the Land”), he is deemed to be acting ultra vires and is no longer entitled to the State’s immunity from suit. The doctrine permits only prospective relief, see Edelman v. Jordan, 415 U.S. 651, 664, 667-668 (1974), against an official in his or her official capacity, see Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). By limiting relief to prospective injunctions against officials, the rule of Ex parte Young avoids courts entering judgments directly against the State but, at the same time, prevents the State (through its officials) from continuing illegal action. The Ex parte Young doctrine has been described as a legal fiction, but it was adopted by the Supreme Court almost a century ago to serve a critical function in permitting federal courts to bring state policies and practices into compliance with federal law. “Both prospective and retrospective relief implicate Eleventh Amendment concerns, but the availability of prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy Clause. Remedies designed to end a
1 The Eleventh Amendment is also no bar to the United States suing the State. See Garrett, 531 U.S. at 374 n.9 (noting that the United States could sue a State to recover damages under the ADA); EEOC v. Board of Regents of Univ. of Wis. Sys., 288 F.3d 296, 299-300 (7th Cir. 2002).

-9continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law.” Green v. Mansour, 474 U.S. 64, 68 (1985); see also Alden, 527 U.S. at 757 (“Established rules provide ample means to correct ongoing violations of law and to vindicate the interests which animate the Supremacy Clause.”). Thus, the Eleventh Amendment is no bar to a suit proceeding against a state official for prospective injunctive relief.
B. Congress Did Not Display Any Intent To Foreclose Jurisdiction Under Ex parte Young For Suits Under Title II And Section 504
In Walker, 213 F.3d at 347, this Court acknowledged that a suit against a state official in his or her official capacity for prospective relief is permitted by the Eleventh Amendment, but held that a suit against a state official for injunctive relief to cure a continuing violation of federal law is not available under Title II because Congress only intended States, and not their officials, to be named as defendants. For the reasons stated below, Walker’s interpretation of the statute should be re-examined and overruled.
1. One of Walker’s underpinnings was undermined by the Supreme Court’s subsequent decision in Garrett. The panel in Walker stated that the “ADA does not draw any distinction [between Title I and Title II] for the purpose of identifying the appropriate defendants.” 213 F.3d at 346. The Supreme Court stated in Garrett that Title I of the ADA (concerning employment) “can be enforced * * * by private individuals in actions for injunctive relief under Ex parte Young.” 531 U.S. at 374 n.9. Thus, this Court’s intent to synchronize the appropriate defendants under

-10Titles I and II now weighs in favor of permitting suits against officials in their official capacities under Title II.
2. Another of Walker’s underpinnings was undermined by the Supreme Court’s recent decision in Verizon Maryland, Inc. v. Public Service Commission of Maryland, 122 S. Ct. 1753 (2002). Verizon Maryland clarified the holding regarding Ex parte Young in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), that the panel in Walker appeared to rely upon in reaching its conclusion.
While the Court in Seminole Tribe reaffirmed that the Eleventh Amendment did not bar actions against state officials in their official capacities seeking prospective injunctive relief, it held, as a matter of statutory construction, that “Congress did not intend” to “authorize federal jurisdiction under Ex parte Young” to enforce the Indian Gaming Regulatory Act (IGRA). 517 U.S. at 75 & n.17. In Verizon Maryland, the Supreme Court affirmed the general availability of Ex parte Young actions to enforce federal statutes and clarified the holding in Seminole Tribe in this regard.
The statute at issue in Verizon Maryland, the Telecommunications Act of 1996, provided that “the State commission” was responsible for approving or rejecting certain agreements between telephone companies and that “[i]n any case in which a State commission makes a determination under this section, any party aggrieved by such determination may bring an action in an appropriate Federal district court.” 47 U.S.C. 252(e)(1), (e)(6). The Court held that plaintiffs could proceed against the state commissioners in their official capacities under Ex parte

-11-
Young.
The Court explained that the doctrine of Ex parte Young is presumed to
apply unless Congress “display[s]” an “intent to foreclose jurisdiction under
Ex parte Young.” 122 S. Ct. at 1761. The Court recounted that in Seminole Tribe
“Congress had specified the means to enforce that duty in § 2710(d)(7), a provision
‘intended . . . not only to define, but also to limit significantly, the duty imposed by
§ 2710(d)(3).’” Ibid. The statute in Seminole Tribe limited the remedies available
to the Court. “The ‘intricate procedures set forth in that provision’ prescribed that
a court could issue an order directing the State to negotiate, that it could require the
State to submit to mediation, and that it could order that the Secretary of the
Interior be notified. We concluded that ‘this quite modest set of sanctions’
displayed an intent not to provide the ‘more complete and more immediate relief’
that would otherwise be available under Ex parte Young.” Ibid. (citations omitted).
Applying this understanding of Seminole Tribe to the Telecommunications Act of
1996, the Court determined that the defendant had not shown that Congress
intended to limit available relief in a way that would preclude actions under Ex
parte Young.
The Commission’s argument that § 252(e)(6) constitutes a detailed and exclusive remedial scheme like the one in Seminole Tribe, implicitly excluding Ex parte Young actions, is without merit. That section provides only that when state commissions make certain “determinations,” an aggrieved party may bring suit in federal court to establish compliance with the requirements of §§ 251 and 252. Even with regard to the “determinations” that it covers, it places no restriction on the relief a court can award. And it does not even say whom the suit is to be brought against -- the state commission, the individual commissioners, or the carriers

-12benefiting from the state commission’s order. The mere fact that Congress has authorized federal courts to review whether the Commission’s action complies with §§ 251 and 252 does not without more “impose upon the State a liability that is significantly more limited than would be the liability imposed upon the state officer under Ex parte Young.”
Ibid.
As evidenced by the Supreme Court’s discussion in Verizon Maryland, the
most critical factor in the Court’s decision in Seminole Tribe not to permit the
action to proceed under Ex parte Young was that Congress had made clear that it
did not want district courts to exercise their normal equitable authority to remedy
violations of statutory rights. “Permitting suit under Ex parte Young [under IGRA]
was thus inconsistent with the ‘detailed remedial scheme,’ -- and the limited one --
that Congress had prescribed to enforce the State’s statutory duty to negotiate.”
122 S. Ct. at 1761 (quoting Seminole Tribe, 517 U. S. at 74).2 In enacting Title II,
Congress did not limit the availability of equitable remedies. To the contrary,
Congress expressly incorporated the remedies of Title VI of the Civil Rights Act of
1964. See 42 U.S.C. 12133; 29 U.S.C. 794a. In Franklin v. Gwinnett County
Public Schools, 503 U.S. 60 (1992), the Court held that the remedies available
2 The courts of appeals had reached the same conclusion prior to Verizon Maryland. See Joseph A. v. Ingram, 275 F.3d 1253, 1263-1264 (10th Cir. 2002); Gibson v. Arkansas Dep’t of Corr., 265 F.3d 718, 721 (8th Cir. 2001); In re Ellett, 254 F.3d 1135, 1146 (9th Cir. 2001), cert. denied, 122 S. Ct. 1064 (2002); Sandoval v. Hagan, 197 F.3d 484, 501 (11th Cir. 1999), rev’d on other grounds, 532 U.S. 275 (2001); Ellis v. University of Kan. Med. Ctr., 163 F.3d 1186, 11961197 (10th Cir. 1998); Marie O. v. Edgar, 131 F.3d 610, 615-616 (7th Cir. 1997); Santee Sioux Tribe v. Nebraska, 121 F.3d 427, 432 (8th Cir. 1997).

-13under Title IX of the Education Amendments of 1972, 20 U.S.C. 1681, a statute modeled on Title VI, were governed by the “general rule” under which “absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute.” Id. at 70-71. The holding of Franklin applies to Title II as well. See Barnes v. Gorman, No. 01-682, 2002 WL 1305773 (June 17, 2002).
While there was extensive dispute in the courts prior to Franklin about the availability of compensatory damages under these statutes, it was never disputed that a prospective injunction was an appropriate remedy for the implied right of action. See Lieberman v. University of Chicago, 660 F.2d 1185, 1188 (7th Cir. 1981), cert. denied, 456 U.S. 937 (1982); cf. Califano v. Yamasaki, 442 U.S. 682, 705 (1979) (“Absent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions in suits over which they have jurisdiction.”); Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946) (“Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.”). This is consistent with Title II’s legislative history, which states that Congress intended the “full panoply of remedies” to be available. H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 98 (1990); H.R. Rep. No. 485, Pt. 3, 101st Cong., 2d Sess. 52 (1990). Unlike the statute in Seminole Tribe, then, there is no evidence in the text or legislative history that Congress intended to

-14preclude the availability of prospective injunctive relief.3 Instead, as in Verizon
Maryland, Congress manifested no intent to limit equitable remedies and thus no “intent to foreclose jurisdiction under Ex parte Young.” 122 S. Ct. at 1761.4
3. Verizon Maryland also undermines Walker’s rationale that the text of the
statute demonstrated that official-capacity suits were not available under Title II.
Walker held, first, that because Title II applies to “public entit[ies],” its duties do
not extend to the “employees or managers of these organizations” individually and
thus there was no “personal liability.” 213 F.3d at 346. But Walker correctly noted
that a state official sued in his official, as opposed to individual, capacity “stands in
for the agency he manages” and thus officials in their official capacities are simply
“proxies for the state.” Ibid. As such, the Court holds that the officials “have been
sued and could be liable only in their official capacities.” Ibid. But at the very end
of the opinion, with no analysis, the Court incorrectly summarizes its discussion as
3 Indeed, the House Judiciary Committee Report cited as an example of the remedies available under Title II, the Eighth Circuit’s decision in Miener v. Missouri, 673 F.2d 969 (8th Cir.), cert. denied, 459 U.S. 909 (1982), which held that an implied private right of action for damages and injunctive relief was available under Section 504 where officials were sued in their official capacities. See H.R. Rep. No. 485, supra, Pt. 3, at 52 n.62; see also 136 Cong. Rec. 11,471 (1990) (Rep. Hoyer) (same).
4 The Court in Seminole Tribe also relied on the unique nature of the duty required by IGRA — to negotiate and enter into a treaty — in concluding that Congress intended the State — and only the State — to be sued under IGRA. See 517 U.S. at 75. As Title II does not address an entity’s formal relations with other sovereigns, this circumstance has no application. See Gibson, 265 F.3d at 722.

-15holding that “the only proper defendant in a [sic] action under the provisions of the ADA at issue here is the public body as an entity” and thus Ex parte Young was not available. Id. at 347.5
a. Verizon Maryland counsels a different result. Although the Telecommunications Act of 1996 imposed duties on “the State commission,” the Court held that a suit could be brought against the state commissioners in their official capacities because “[t]he mere fact that Congress has authorized federal courts to review whether the Commission’s action” complies with federal law does not indicate “whom the suit is to be brought against -- the state commission, the individual commissioners, or the carriers benefiting from the state commission’s order.” 122 S. Ct. at 1761.
Like the Telecommunications Act of 1996 in Verizon Maryland, Title II does not identify who the defendants should be. Instead, it provides that the “remedies, procedures, and rights set forth in section 794a of Title 29 [Section 504 of the Rehabilitation Act] shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of [Title II].” 42 U.S.C. 12133. Section 794a, in turn, provides that the “remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42
5 Subsequently, this Court described Walker as holding that suits under Title II may “proceed against the public entity – either in its own name, or through suits against its officers in their official capacities.” Stanley v. Litscher, 213 F.3d 340, 343 (2000).

-16U.S.C. 2000d et seq.] shall be available to any person aggrieved by any act or failure to act.” 29 U.S.C. 794a(a)(2).
Title VI does not contain an express private cause of action that identifies potential defendants; instead, the courts have implied one. See Alexander v. Sandoval, 532 U.S. 275, 279-280 (2001); Cannon v. University of Chicago, 441 U.S. 677, 696-697, 699-701 (1979). In cases decided prior to the enactment of the ADA, courts permitted suits under Title VI to be brought against government officials in their official capacities. For example, in United States v. Alabama, 791 F.2d 1450, 1457 (11th Cir. 1986), the court held “that injunctive relief against the Board itself [under Title VI] is so barred [by the Eleventh Amendment], but that such relief against Board members in their official capacities is permitted.”6
The same was true under Section 504 prior to the enactment of the ADA. In addition to a number of Supreme Court cases in which Section 504 actions were brought against government officials in their official capacities,7 courts of appeals had held that the implied private right of action under Section 504 could be enforced against state officials in their official capacities, noting that they were
6 See also, e.g., Bazemore v. Friday, 478 U.S. 385 (1986); Lau v. Nichols, 414 U.S. 563 (1974); Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987) (“It would appear initially that the Superintendent might be held accountable for the appropriate declaratory and injunctive relief under Ex Parte Young, 209 U.S. 123 (1908), and its progeny.”). 7 See Alexander v. Choate, 469 U.S. 287 (1985); Honig v. Students of Cal. Sch. for the Blind, 471 U.S. 148 (1985); Smith v. Robinson, 468 U.S. 992 (1984); Campbell v. Kruse, 434 U.S. 808 (1977).

-17-
relying on the doctrine of Ex parte Young to avoid States’ Eleventh Amendment
immunity.8 Congress, of course, is assumed to know the law and is generally
deemed to have incorporated existing judicial interpretations when it adopts a
preexisting remedial scheme. See Lorillard v. Pons, 434 U.S. 575, 580-581
(1978); Bragdon v. Abbott, 524 U.S. 624, 645 (1998). By incorporating the
“remedies, procedures, and rights” of Section 504 and Title VI, Congress
incorporated the right to sue government officials in their official capacities into
8 See, e.g., Lussier v. Dugger, 904 F.2d 661, 670 n.10 (11th Cir. 1990) (“of course, the Eleventh Amendment does not bar Lussier’s claims for equitable relief under § 794 against defendants named in this case in their official capacities” (citing Ex parte Young)); Brennan v. Stewart, 834 F.2d 1248, 1255, 1260 (5th Cir. 1988) (discussing Ex parte Young at length); Miener v. Missouri, 673 F.2d 969, 982 (8th Cir. 1982) (finding Ex parte Young inapplicable because relief sought was not prospective); Helms v. McDaniel, 657 F.2d 800, 806 n.10 (5th Cir. 1981) (citing Ex parte Young), cert. denied, 455 U.S. 946 (1982). Other cases, while not making an express holding, routinely adjudicated Section 504 suits brought against government officials in their official capacities. See, e.g, Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988); Disabled In Action v. Sykes, 833 F.2d 1113 (3d Cir. 1987), cert. denied, 485 U.S. 989 (1988); Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th Cir. 1987); Parks v. Pavkovic, 753 F.2d 1397 (7th Cir.), cert. denied, 473 U.S. 906 (1985); Garrity v. Sununu, 752 F.2d 727 (1st Cir. 1984); Hurry v. Jones, 734 F.2d 879 (1st Cir. 1984); Plummer v. Branstad, 731 F.2d 574 (8th Cir. 1984); Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984); Phillips v. Thompson, 715 F.2d 365 (7th Cir. 1983); Joyner v. Dumpson, 712 F.2d 770 (2d Cir. 1983); Kentucky Ass’n for Retarded Citizens, Inc. v. Conn, 674 F.2d 582 (6th Cir.), cert. denied, 459 U.S. 1041 (1982); S-1 v. Turlington, 635 F.2d 342 (5th Cir.), cert. denied, 454 U.S. 1030 (1981); Baker v. Bell, 630 F.2d 1046 (5th Cir. 1980); Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977); United Handicapped Fed’n v. Andre, 558 F.2d 413 (8th Cir. 1977); Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir. 1977).

-18-
Title II.
b. The holding of Verizon Maryland, and its implicit rejection of the
rationale of Walker, is consistent with the fundamental legal doctrine that suits
against state officials in their official capacities are, except for purposes of
Eleventh Amendment immunity, suits against the entity itself. “Official-capacity
suits * * * ‘generally represent only another way of pleading an action against an
entity of which an officer is an agent.’ As long as the government entity receives
notice and an opportunity to respond, an official-capacity suit is, in all respects
other than name, to be treated as a suit against the entity. It is not a suit against the
official personally, for the real party in interest is the entity.” Kentucky v. Graham,
473 U.S. 159, 165 (1985); see also Hafer v. Melo, 502 U.S. 21, 25 (1991). Thus,
by definition, officials in their official capacities are no more free to violate federal
law than the entity itself.
As the Sixth Circuit explained in rejecting the argument that the text of Title
II allows suits only against an entity, and not its officials in their official capacities:
The problem with this argument is that it misrepresents Ex parte Young, insofar as it fails to recognize the nuances [of the doctrine]. The Court in [Ex parte Young] was not saying that the official was stripped of his official capacity for all purposes, but only for purposes of the Eleventh Amendment. This is evident in Ex parte Young itself: though the official was not “the state” for purposes of the Eleventh Amendment, he nevertheless was held responsible in his official capacity for enforcing a state law that violated the Fourteenth Amendment, which by its terms applies only to “states.” And in rejecting the defendants’ Ex parte Young argument, we make a similar distinction: an official who violates Title II of the ADA does not represent “the state” for purposes of the Eleventh Amendment, yet he or she nevertheless may be held responsible in an official capacity for violating Title II, which by its terms applies only to “public entit[ies].”

-19Carten v. Kent State Univ., 282 F.3d 391, 395-396 (6th Cir. 2002) (citations omitted).
That this constitutes the proper understanding of official capacity suits is confirmed by assessing the way the statutes apply to the practices of an entity covered by these statutes. For example, if a State is obliged under Title II to permit a person who is blind to enter a public building with her guide dog, then it would be unlawful for a state official to promulgate a rule to the contrary, or for a state employee to enforce that rule. For both “[t]he States and their officers are bound by obligations imposed * * * by federal statutes that comport with the constitutional design.” Alden, 527 U.S. at 755 (emphasis added). If a lawsuit were brought to enjoin that state policy or practice as violating Title II, it would be immaterial (again except for the Eleventh Amendment) whether the individual sued the State itself or the officials or employees in their official capacities. Under rules of equity, if the State was sued and enjoined, all its officers and agents would be automatically covered by the injunction. See Fed. R. Civ. P. 65(d) (every injunction is binding “upon the parties to the action, their officers, agents, servants, employees, and attorneys”). If an official sued in his official capacity was the defendant, an injunction entered against him likewise binds other government officials as if the suit had been brought against the State. See ACLU v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999); Hendrickson v. Griggs, 672 F. Supp. 1126, 1142 n.26 (N.D. Iowa 1987). Thus, Title II’s requirement that “public entit[ies]” not discriminate extends to the officials in their official capacities who are acting

-20for the entity.9
For this reason, the other courts of appeals have held in a variety of statutory settings that Ex parte Young actions are available even when the statute imposes a duty on an entity, and not expressly on the entity’s officials. See, e.g., In re Ellett, 254 F.3d 1135, 1146 (9th Cir. 2001), cert. denied, 122 S. Ct. 1064 (2002); Randolph v. Rodgers, 253 F.3d 342, 348 (8th Cir. 2001); Telespectrum, Inc. v. Public Serv. Comm’n, 227 F.3d 414, 420 (6th Cir. 2000). The Supreme Court’s decision in Verizon Maryland confirms this conclusion.
4. The Supreme Court has “frequently acknowledged the importance of having federal courts open to enforce and interpret federal rights.” Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 293 (1997) (O’Connor, J., joined by Scalia, J., and Thomas, J., concurring in part and concurring in judgment). As there is no evidence that Congress intended to foreclose Title II suits proceeding against state officials in their official capacities, this Court should join the courts of appeals that have held after Seminole Tribe that individuals could rely on Ex parte Young to
9 This Court reached a similar conclusion in Smith v. Metropolitan School District, 128 F.3d 1014 (1997), cert. denied, 524 U.S. 951 (1998). Smith involved a suit under Title IX brought against the school district and various school officials. This Court held that the suit against the school principal in his official capacity should be dismissed because the principal was not a sufficiently senior official to be treated as an alter ego of the school district. Id. at 1020-1021. This Court suggested, however, that a suit brought against members of the school board in their official capacities would have been permitted because it would have been the same as a suit against the school district itself. Id. at 1021 n.3.

-21enforce Title II against state officials in their official capacities. See, e.g., Carten,
282 F.3d at 395-396; Randolph v. Rodgers, 253 F.3d 342, 346-348 (8th Cir. 2001);
Roe No. 2 v. Ogden, 253 F.3d 1225, 1233 (10th Cir. 2001); J.B. ex rel. Hart v.
Valdez, 186 F.3d 1280, 1287 (10th Cir. 1999); Nelson v. Miller, 170 F.3d 641, 646-
647 (6th Cir. 1999); Armstrong v. Wilson, 124 F.3d 1019, 1025-1026 (9th Cir.
1997), cert. denied, 524 U.S. 937 (1998); cf. Olmstead v. L.C., 527 U.S. 581, 589-
590 (1999) (adjudicating on the merits Title II suit against state official in official
capacity for injunctive relief).
CONCLUSION
The district court’s holding that this suit could not proceed against the
defendants in their official capacities for prospective injunctive relief should be
reversed and the case remanded for further proceedings.
Respectfully submitted,
RALPH F. BOYD, JR. Assistant Attorney General
JESSICA DUNSAY SILVER SETH M. GALANTER
Attorneys Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue - PHB 5022 Washington, DC 20530 (202) 307-9994

CERTIFICATE OF COMPLIANCE I certify, pursuant to Fed. R. App. P. 29(d), that the attached Brief for the United States as Amicus Curiae is proportionally spaced, has a typeface of 14 points, and contains 5,984 words.

June 18, 2002

_________________________ SETH M. GALANTER
Attorney

CERTIFICATE OF SERVICE I hereby certify that on June 19, 2002, two copies of the Brief for the United States as Amicus Curiae Supporting Appellants and Urging Reversal and one 3 ½" disk containing the brief’s text, scanned for viruses and determined to be virus free
were served by first -class mail, postage prepaid, on the following counsel:
Robert H. Farley, Jr. 1155 S. Washington Street Suite 202 Naperville, IL 60540
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SETH M. GALANTER Attorney Department of Justice Appellate Section-PHB 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 307-9994