Case: 1:05-cv-04673 Document #: 148 Filed: 01/02/08 Page 1 of 15 PageID #:908

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

ETHEL WILLIAMS, JAN WRIGHTSELL, DONELL HALL, and EDWARD BRANDON, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
ROD BLAGOJEVICH, in his official capacity as Governor of the State of Illinois, CAROL L. ADAMS, in her official capacity as Secretary of the Illinois Department of Human Services, LORRIE STONE, in her official capacity as Director of the Division of Mental Health of the Illinois Department of Human Services, ERIC E. WHITAKER, in his official capacity as Director of the lllinois Department of Public Health, and BARRY S. MARAM, in his official capacity as Director of the Illinois Department of Healthcare and Family Services,
Defendants.

No. 05 C 4673

OPINION AND ORDER
This class action concerns the State of Illinois's alleged duty under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 (a) (2), 12101 (a) (5), 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), to provide qualified

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persons with mental illnesses who reside in privately owned Institutions for Mental Diseases ("IMD") the opportunity to be placed in an integrated community setting. See generally Olmstead v. L.C., 527 u.S. 581 (1999). The defendants in this case, all sued in their official capacity, are the Governor of Illinois; the Secretary of the Illinois Department of Human Services; the Director of the Division of Mental Health of the Department of Human Services; the Director of the Illinois Department of Public Health; and the Director of the Illinois Department of Healthcare and Family Services. A Fed. R. Civ. P. 23 (b) (2) class has been certified "consisting of Illinois residents who: (a) have a mental illness; (b) are institutionalized in a privately owned Institution for Mental Diseases; and (c) with appropriate supports and services may be able to live in an integrated community setting." Williams v. Blagojevich, 2006 WL 3332844 *5 (N.D. Ill. Nov. 13, 2006). Plaintiffs seek declaratory and injunctive relief. The relief requested does not require that each member of the class be placed in the community. Instead, plaintiffs seek to have procedures implemented which would require that a proper evaluation be offered and made and that appropriate support and services be available for those who qualify for and choose community placement. An IMD resident's decision to consent to
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the recommended placement would not be made until after an appropriate evaluation is performed and the individual knows what type of placement is being recommended. ~ ~ at *2, 4-5.
Presently pending are four motions to quash subpoenas that plaintiffs issued to a number of IMDs in Illinois. The IMDs are not parties to this action. One motion is brought by defendants and the other three are brought by different groupings of IMDs. The subpoenas seek access to residents' records and/or the opportunity to interview randomly selected residents. The records would be examined by and the interviews conducted by psychological experts retained by plaintiffs. The experts intend to study selected IMD residents to make generalized determinations regarding what opportunities for community placement are being provided, whether residents would qualify for such placements, and whether residents would be interested in such placements. Plaintiffs' team of experts are experienced both in interviewing institutionalized persons with mental illnesses and with conducting studies of such persons. While many, or possibly most, of the residents that will be interviewed are members of the certified class, some or many will not be members of the class because they will not satisfy the criterion of being able to live in an integrated community setting with appropriate supports and services.
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All the motions to quash raise the issue of privacy concerns regarding the experts examining medical records of the residents without first obtaining the consent of the residents. Protective orders are in place requiring that plaintiffs' experts
and others involved in this litigation keep the medical
information confidential, whether the IMD resident is a class member or not. The protective orders comply with requirements of the Health Insurance Portability and Accountability Act ("HIPAA") that allow disclosures of the medical records for litigation purposes without requiring the specific consent of the individual patient. See 45 C.F.R. §§ 164.512 (e) (1) (ii) (B), (e) (1) (v); Northwestern Mem. Hosp. v. Ashcroft, 362 F.3d 923, 925 (7th Cir. 2004); Ligas v. Maram, 2007 WL 2316940 *5-6 (N.D. Ill. Aug. 10, 2007) ("Ligas I"); Ligas v. Maram, 2007 WL 4225459 *2 (N.D. Ill. Nov. 27, 2007) ("Ligas II"); Howard v. Rustin, 2007 WL 2811828 *1-3 (W.D. Pa. sept. 24, 2007). Consent requirements of the Illinois Mental Health and Developmental Disabilities Confidentiality Act ("MHDDCA") are inapplicable to discovery in this case which is based on federal question jurisdiction. Northwestern, 362 F.3d at 925; Ligas I, 2007 WL 2316940 at *6.'
INone of the movants contend that any of the medical records that could be disclosed are protected by the federal psychotherapist-patient privilege. ~ Ligas II, 2007 WL 4225459 at *5-7. See generally Jaffee v. Redmond, 518 U.S. 1 (1996).
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None of the subpoenas will be quashed based on there being a necessity to obtain the consent of any IMD resident before plaintiffs' experts or counsel can see any of the medical records that are responsive to the subpoenas.
On September 28, 2007, plaintiffs issued subpoenas to eight IMDs. Six of those IMDs' move to quash this subpoena and a seventh IMD (Columbus Manor Residential Care) filed a separate and narrower motion to quash or modify after resolving some disputed issues with plaintiffs. Defendants themselves separately move to quash the subpoenas that were issued to all eight IMDs.'
The September 28 Subpoena is characterized as a "Subpoena Duces Tecum for Inspection of Premises and Documents." A rider to the subpoena describes the inspection and document request as follows:
ZThe six IMDs are Clayton Residential Home, Inc., Thornton Heights Terrace, Ltd., Sharon Health Care Woods, Inc., Greenwood Care, Inc., Somerset Place, LLC, and Bayside Terrace LLC. This group will be referred to as the "Clayton Group" and this motion as the "Clayton Motion." Although the Clayton Group delivered to chambers judge's copies of the Clayton Motion and a supporting brief that contain stamps indicating they were delivered on October 5, 2007, those documents do not appear on the docket. They have been considered, but the Clayton Group should complete the record by electronically filing both documents.
'The eighth IMD is Margaret Manor North. It is unknown whether Margaret Manor itself objects to the subpoena, nor whether it has already fully or partially complied with the subpoena.
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INSPECTION OF THE PREMISE 1. Plaintiffs request that [the IMDJ
permit Dr. Jack Tebes, Dr. Paul Thomas Amble, and Dr. Madelon Visitainer Baranoski to enter and observe the facility at [the IMDJ located at
. on October 9-10, 2007. 2. Plaintiffs request that [the IMDJ
provide a current list of residents at the facility and thereafter provide Drs. Tebes, Amble and Baranoski, or anyone working on their behalf, access to the residents who are selected by Plaintiffs' consulting experts.
DOCUMENTS TO BE PRODUCED For each resident selected by Drs.
Tebes, Amble and Baranoski please produce portions of the resident's mental health and medical records identified by Plaintiffs' consulting experts.
Subsequent communications with the IMDs have made clear
that plaintiffs do not intend a general inspection of the
premises, only to be on the premises to interview selected
residents and see the related records of the selected residents.
Plaintiffs have also attempted to clarify what records they will
request for each selected resident. They have informed the IMDs
that, on the day of inspection, they will limit their document
requests to items in the current record or chart that is readily
available at the IMD. Any followup requests for additional
documents could be resolved at a later time.
The movants contend that the subpoena itself must
sufficiently identify what documents are requested and, even if
the clarifications should be considered, plaintiffs' request is
still insufficiently specific. Federal Rule of Civil Procedure
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45 (a) (1) (iii)' requires that a subpoena duces tecum "command" the
production of "designated documents." While it is improper to use a subpoena as a fishing expedition, in appropriate situations it is sufficient to request all documents pertaining to a particular subject or falling within a particular category. ~ Charles Alan Wright & Arthur R. Miller, Federal Practice & Proc. : Civil 2d § 2457 at 34-35 & nn.9-10 (1995). Here, plaintiffs have requested medical records of the residents that will be selected.
In this situation, that is sufficient to overcome any objection as to form. Moreover, plaintiffs have clarified that they will
presently limit the request to current records that are readily available, not requiring the IMDs to be prepared to search
through archived documents. The issue is whether the requested documents and interviews are overbroad, irrelevant, or unduly
burdensome. The scope of material obtainable by a
Rule 45 subpoena is as broad as permitted under the discovery rules. See Jackson v. Brinker, 147 F.R.D. 189, 193-94 (S.D. Ind. 1993) (" [tlhe scope of material obtained by a Rule 45 subpoena is as broad as permitted under the discovery rules ... if the material is relevant, not privileged, and is, or is likely to lead to, admissible evidence, it is obtainable by way of a subpoena.") (internal citations omitted); Fed. R. Civ. P. 45 advisory committee note to the 1991 amendment. The party opposing discovery has the burden of showing the discovery is
4The amended language that went into effect on December 1, 2007 is being cited. In any event, the prior version was substantively the same.
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overly broad, unduly burdensome, or not relevant. Wauchop v. Domino's Pizza. Inc., 138 F.R.D. 539, 543 (N.D. Ind. 1991). To meet this burden, the objecting party must "specifically detail the reasons why each [request] is irrelevant . . . " Schaap y. Executiye Indus., ~, 130 F.R.D. 384, 387 (N,D. Ill. 1990).
Under Rule 26{b) (2), the Court must weigh the burden or expense of proposed discovery and its likely benefit by taking into account "the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues." Simon Property Group L.P. v. mySimon, Inc., 194 F.R,D. 639, 640 (S.D. Ind. 2000) (Hamilton, J.).
Graham v. Casey's General Stores, 206 F.R.D. 251, 253-54 (S.D.
Ind. 2002). Accord Richter v. Mutual of Omaha Ins. Co., 2006 WL
1277906 *2 (E.D. Wis. May 5, 2006).
Plaintiffs' experts estimate that each interview will
last about a half hour. The IMDs contend that the interviews are
intrusive on the residents' privacy and disruptive of their
treatment. They further contend that these burdens are undue in
light of the fact that the short interviews are unlikely to
produce useful information. The IMDs contend that the
information gathered in the interviews will be highly subjective.
The claims in the Ligas case concern providing
developmentally disabled persons in intermediate care facilities
("rCF") adequate opportunities for community placement. The
plaintiffs issued subpoenas to the rCFs that included requests to
have their experts observe non-communicative, developmentally
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disabled residents as part of a study for the litigation. When initially quashing the subpoenas for various reasons, Magistrate Judge Ashman found as to the expert observations that the observations were likely to yield "inherently subjective data" that were likely to "lead only to very marginal probative evidence, if any at all." Ligas I, 2007 WL 2316940 at *4. Defendants contend the interviews in the present case are also likely to yield subjective information of limited probative value.
The burden is on movants to support that the subpoenas are overbroad. It cannot be found that the proposed interviews are unlikely to yield probative information. The three experts retained by plaintiffs all have substantial qualifications and experience. In addition to their training and treatment experience, they have vast experience interviewing mentally ill persons and conducting studies of mentally ill persons and the services provided to them. The experts opine that their interviews are likely to produce usable material for their intended purpose. There is no sufficient basis for finding otherwise. Also, it is noted that this situation is different from that faced in Ligas. Here, the residents will be able to communicate with the interviewers. Statements of the residents themselves are likely to yield information not available in the
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medical records alone or from an interview of treatment providers at the IMDs.
Defendants and the Clayton Group do not provide any specific support for their contention that the interviews will disrupt the operations of the facilities or interfere with treatment provided to the residents. While there will of course be some burden of allowing visitors into the facilities and providing them the necessary documents, there is no indication that this burden will be undue. As to the effect on residents, Columbus Manor provides two unsworn letters from an expert experienced in the field who has also conducted studies of facilities for litigation and other purposes. He simply states without amplification that "residents, particularly as they are emotionally and mentally disabled require protection from intrusive and unplanned (on their part) examinations by strangers." Oct. 13, 2007 Letter of B. Rubin at 1. Dr. Rubin does not explain what he would consider to be an intrusive interview nor what protections must be in place.' The joint declaration of plaintiffs' experts sufficiently supports that the interviews they intend to conduct are not likely to interfere with the treatment of residents or otherwise cause harm to them.
~With its reply, Columbus Manor submits a second letter from Dr. Rubin. Although, plaintiffs' answer brief raises issues regarding the lack of specificity for this assertion, Dr. Rubin does not provide further explanation in his second letter dated October 23, 2007.
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The experts do not know of any such harm resulting from the hundreds of study interviews that they have conducted in the past.
No interview will be conducted unless the resident agrees to be interviewed. Therefore, the interviews themselves will not unduly intrude on any resident's privacy since no resident will be forced to participate without his or her consent. Movants contend not all the residents are necessarily competent to consent. In Illinois, however, a person is presumed competent and plaintiffs have already agreed to exclude from their selection any resident who has a guardian. Thus, none of the residents to be interviewed have been declared incompetent. Since the experts are professional therapists with ethical obligations, it is assumed that plaintiffs' experts will not continue an interview if the resident is incapable of consent or withdraws consent. Also, the experts do not intend to examine the medical records until after the interviewee has consented to be interviewed, thereby avoiding undue privacy intrusion.
The IMDs contend that eliminating those who cannot consent will skew the results of the study. That, however, is an issue that will go to the weight to be accorded any results that may be the subject of future testimony. That is also true of other contentions of the parties regarding the likely reliability of the study. None of them make the potential results so likely
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to be of minimal or no value that the potential burdens outweigh the potential value of the evidence. Such issues are more properly raised on a motion in limine if evidence based on the study and interviews is to be presented.
The IMDs, particularly Columbus Manor, want to have IMD personnel or defendants' attorneys present during any interviews. Columbus Manor suggests a protocol under which an IMD employee initially contacts the resident to provide a brief explanation and introduction before one of the experts provides greater detail and obtains consent for an interview. Columbus Manor also proposes that the resident be asked for consent to have a court reporter record the interview. While Columbus Manor'S expert states that he would find it convenient to have a court reporter instead of having to take all his own notes, plaintiffs' experts do not desire such a setup. They believe recording interviews would cause some residents to be less forthright. They also believe that having IMD personnel or lawyers present could cause residents to be less open. The IMDs and defendants have no right to be present during the interviews. The court defers to the professional judgment of the experts in deciding that their presence would be disruptive. The experts may conduct the interviews in the manner proposed by them.
There is no sufficient basis for finding that the interviews will be an undue burden.
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Movants also contend that the requests are overbroad. There is no basis for finding that the experts will ask interview questions that go beyond the purpose of their study, which is relevant to the claims before the court.
Still to be considered are the documents to be provided. The IMDs do not show that providing the documents will itself be particularly burdensome. The issue still to be resolved is whether the documents requested are overbroad. Movants contend that the medical records requested include much irrelevant information, such as medical information about the resident's physical condition. The experts state that, in examining the medical records, they will focus on current treatment plans and the most recent discharge plan. They note, however, that a resident's physical, clinical, and social circumstances, as well as their history of medications, are all pertinent to their capacity to live in a more integrated setting. The physical aspects of a resident's medical records are not necessarily irrelevant to the study being conducted. The subpoenas are not overbroad because the resident medical records will include items not limited to mental conditions.'
"In Ligas I, 2007 WL 2316940 at *4, Magistrate Judge Ashman found it was overbroad to request the residents' full medical records, including specifically requesting dental records. In that case, however, there was no articulation of the reason these records were requested. ~ ~ Here, plaintiffs' experts express the opinion that physical and social conditions may be relevant to whether a community placement is appropriate.
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The September 28 Subpoena will not be quashed. Consistent with the discussion contained herein, the IMDs must respond to the subpoenas. It will be left to the IMDs and plaintiffs to establish agreeable and timely dates for compliance with the subpoenas.
Also to be considered are October 8, 2007 subpoenas duces tecum issued to a number of IMDs Ten IMDs' have moved to quash or modify the October 8 Subpoena. This subpoena requests particular documents from the files of specified residents at each IMD. The Abbott Group's objections regarding consent are adequately addressed above.
The Abbott Group also raises objections that the October 8 Subpoena is overbroad because some of the documents requested have non-medical information and information about physical conditions. Those sections of the documents, however, are minimal. Also, as previously discussed, information about physical and social conditions may be relevant. It will not be necessary to redact these parts of the documents.
Last, the Abbott Group objects that certain of the requested items do not set an appropriate time frame. As to
'The ten IMDs are Abbott House, LLC, Albany Care, Inc., Belmont Nursing Home, Inc., Bryn Mawr Care, Inc., Central Plaza Residential Home, Inc., Grasmere place, LLC, Lydia Healthcare, LLC, Monroe Pavilion Health Treatment Center, Inc., Somerset Place, LLC, and Wilson Care, Inc. This group will be referred to as the "Abbott Group" and the motion will be referred to as the "Abbott Motion."
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serious incidents, the resident's level system, and requests for alternative housing, plaintiffs set no time frame. As to these items, the IMDs may limit their responses to January 1, 2003 and later. In all other respects, the Abbott Motion will be denied.
IT IS THEREFORE ORDERED that the motions of defendants and the non-party IMDs to quash and/or modify subpoenas [102, 106, 117) are granted in part and denied in part as described herein. Within 14 days, the parties shall meet and adopt a schedule for the requested interviews and document inspections at the IMDs. A status hearing will be held on April 2, 2008 at 11:00 a.m.
ENTER:

DATED:

JANUARY ?-2008

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 Case 1:05-cv-04673 Document 236 Filed 02/18/10 Page 1 of 4

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

ETHEL WILLIAMS, et al.,
Plaintiffs, vs. PAT QUINN, et al., Defendants.

)

)

)

)

)

No. 05 C 4673

)

Judge Hart

)

)

)

)

JOINT STATUS REPORT Pursuant to this Court’s instructions, the parties respectfully submit this Joint Status Report regarding settlement of this case. On September 24, 2009, this matter was referred to Magistrate Judge Denlow for the purpose of holding a settlement conference. On October 27, 2009, the settlement conference was held and since then the parties have appeared twice before Magistrate Judge Denlow to report on the progress of settlement negotiations. On February 4, 2010, Magistrate Judge Denlow returned this case back to this Court. The parties have reached a settlement in principle. As soon as practicable, the parties will meet with other interested parties to discuss the proposed settlement agreement. The parties then expect to file a motion for preliminary approval of the settlement agreement within 21 days or at another date set by the Court.

Dated: February 18, 2010
By: /s/ Brent D. Stratton Attorney for Defendants

Respectfully submitted,
By: /s/ Benjamin S. Wolf Attorney for Plaintiffs

Case 1:05-cv-04673 Document 236 Filed 02/18/10 Page 2 of 4

THOMAS A. IOPPOLO #1303686 BRENT D. STRATTON #6188216 KATHLEEN KREISEL FLAHAVEN #6180961 Assistant Attorneys General 100 W. Randolph Street, 13th Floor Chicago, IL 60601 (312) 814-7198
KAREN KONIECZNY #1506277 JOHN E. HUSTON #3128039 CHRISTOPHER S. GANGE #6255970 Assistant Attorneys General 160 North LaSalle Street, Suite N-1000 Chicago, IL 60601 (312) 793-2380
ATTORNEYS FOR DEFENDANTS

THE ROGER BALDWIN FOUNDATION OF THE AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS Benjamin S. Wolf Lori N. Turner 180 North Michigan Avenue Suite 2300 Chicago, Illinois 60601 Telephone: (312) 201-9740 Facsimile: (312) 201-9760
EQUIP FOR EQUALITY Amy F. Peterson Laura Miller John Whitcomb 20 N. Michigan, #300 Chicago, IL 60602 Telephone: (312) 341-0022 Facsimile: (312) 341-0295
ACCESS LIVING OF METROPOLITAN CHICAGO Edward Mullen 115 West Chicago Avenue Chicago, IL 60610 Telephone: (312) 640-2100 Facsimile: (312) 640-2139 TTY (312) 640-2102
THE BAZELON CENTER FOR MENTAL HEALTH LAW Ira Burnim Jennifer Mathis Karen Bower 1101 15th Street, NW Suite 1212 Washington, DC 20005 Telephone: 202-467-5730 Facsimile: 202-223-0409

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KIRKLAND & ELLIS, LLP Donna M. Welch Joseph M. Russell Elizabeth J. Kappakas Angela Dickson Marston 200 East Randolph Drive Chicago, IL 60601 Telephone: (312) 861-2000 Facsimile: (312) 861-2200 ATTORNEYS FOR DEFENDANTS
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Case 1:05-cv-04673 Document 236 Filed 02/18/10 Page 4 of 4 CERTIFICATE OF SERVICE
I, Benjamin S. Wolf, an attorney, hereby certify that on the 18th day of February, 2010, I served to a true and correct copy of the foregoing JOINT STATUS REPORT to all counsel of record via ECF.
By: /s/ Benjamin S. Wolf
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 Case 1:05-cv-04673 Document 239 Filed 03/15/10 Page 1 of 16

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

ETHEL WILLIAMS, et al., Plaintiffs, vs.
PAT QUINN, et al., Defendants.

)

)

)

No. 05 C 4673

)

)

Judge Hart

)

Magistrate Judge Denlow

)

)

)

MEMORANDUM IN SUPPORT OF JOINT MOTION FOR PRELIMINARY APPROVAL OF CONSENT DECREE AND APPROVAL OF NOTICE PLAN

Plaintiffs Ethel W illiams, Jan W rightsell, Edward Brando n, and Gilbert Parham , on

behalf of themselves and all ot hers similarly situated (“Plaintiffs”), and Defendants Pat Quinn,

Michelle R.B. Saddler, Lorrie R ickman Jones, Barry Maram , and Da mon T. Arnold,

(collectively, the “Parties”), subm it this jo int memorandum in support of their Motion for

Preliminary Approval of Consent Decree and Approval of Notice P lan (“Motion”). For the

reasons explained below, the Parties’ proposed Consent Decree (“Decree”) is fair, adequate an d

reasonable, and provides substantia l benefits to the entire cla ss while removing the delay, risk,

and expense inherent in the trial of a com plex case such as this. The P arties respectfully urge

this Court to grant prelim inary approval of the proposed Decree, attached to the Motion as

Exhibit A, adopt the Notice Plan, attached to th e Motion as Exhibit B, and schedule a Fairness

Hearing to address the f airness and adequacy of the proposed Decree pursua nt to Rule 23(e) of

the Federal Rules of Civil Procedure.

Case 1:05-cv-04673 Document 239 Filed 03/15/10 Page 2 of 16
BACKGROUND Plaintiffs filed this action on August 15, 2005, seeking to prev ent their unnecessary segregation in large in stitutions referred to as I nstitutions for Mental Diseases (“IMDs”). The Named Plaintiffs are adults with m ental illness institutionalized in I MDs. Defendants ar e Governor Pat Quinn, named in his official capacity as Governor of the State of Illinois, Michelle R.B. Saddler, named in her official capacity as Secretary of the Illinoi s Department of Human Services (“DHS”), Lor rie Rickman Jones, nam ed in her official capacity as D irector of the Illinois Department of Human Services, Division of Men tal Health (“DMH”), Barry M aram, named in his official capacity as Director of the Illinois Department of Healthcare and Family Services (“HFS”), and Damon T. Arnold, named in his official capacity as Director of the Illinois Department of Public Health (“DPH”). Defend ants are res ponsible for adm inistering Illinois’ system of services for individuals with mental illness. As set forth in Plaintiffs’ First Amended Complaint for Declaratory and Injunctive Relief (“Complaint”), Plaintiffs contend that Defendants are violating the integration m andates of Title II of the Am ericans with Disabilities Act, 42 U.S.C. § 12132 (“ADA”) and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) (“Section 504”), which require that services, program s and activities be provided in the most integrated setting appropriate to the needs of individuals with disabilities. As the United States Supreme Court affirmed in Olmstead v. L.C., “unjustified institutional isolation of persons with disabilities is a form of discrimination.” 527 U.S. 591, 600 (1999). Plaintiffs alleg e that Defendants have failed to com ply with federal law by failing to ensure that individuals with m ental illness who live in IMDs receiv e services in the m ost integrated setting appropriate to their needs, and that offering such opportunities would not fundamentally alter Defendants’ system of s ervices for individuals w ith mental illness.
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Defendants deny m any of the Complaint’s allega tions and specifically deny that they have violated any of the federal statutes cited therein.
Plaintiffs asserted their claims on b ehalf of themselves and all others similarly situated. On November 13, 2006, the Court cert ified this case as a class action. 1 The Parties engaged in substantial written, oral and e xpert discovery. By the tim e they reached agreem ent on the proposed Decree, hundreds of thousands of pa ges of docum ents had been produced and the Parties had conducted o ver 30 depositions. Plaintiffs worked extensiv ely with five experts who submitted expert reports regarding Illinois’ heavy reliance on IMDs and other components of the manner in which Illinois delivers services to individuals with mental illness. Defendants worked with two experts who also submitted expert reports. The Parties deposed five of the experts.
At the urging of this Court, in September 2009, the Parties began to discuss a resolution of the litigation. The Parties exch anged and negotiated proposed langua ge to be incorporated in a formal consent decree. A settlem ent conference supervised by United St ates Magistrate Judge Morton Denlow was held on October 24, 2009. After several more negotiations, an agreement in principle regarding the contours of a consen t decree to be entered by the Court was reached on February 4, 2010. (CM/ECF Doc. No. 235.) Since that time, the Parties have drafted a proposed Consent Decree and agreed upon a proposed strate gy to provide notice to class m embers and others who provide servi ces to class members. Accordingly, the Parties now jointly move this Court to grant prelim inary approval of the pr oposed Consent Decree, a pprove the Notice Plan
1 As set forth in the Court’s Order (CM/ECF Doc. No. 69), the class was defined as: Illinois residents who: (a) have a mental illness; (b) are institutionalized in a privately owned Institutions for Mental Diseases; and (c ) with appropriate supports and services may be able to live in an integrated community setting.
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and schedule a hearing to address the fairness an d adequacy of the proposed settlem ent pursuant to Rule 23(e) of the Federal Rules of Civil Procedure.
THE COURT SHOULD PRELIMINARILY APPROVE THE CONSENT DECREE A. THE PRINCIPAL TERMS OF THE DECREE PROVIDE FAIR AND REASONABLE RELIEF. The Decree fairly, reas onably and adequately affords relief to class members. The
essence of Plaintiffs’ Complaint is that Def endants must ensure that individuals with m ental illness living in IMDs are afforded opportunities to live in the most integrated setting appropriate and to make meaningful, informed choices regarding where they live, and that Defendants must ensure that sufficient supports and services are ava ilable to enable class m embers to live successfully in integrated settings. The relief afforded under the Decree addresses and achieves that goal.
1. Development of Community Capacity. The Decree requires Defendants to ensure the av ailability of sufficient services, supp orts and other resources necessary to meet their obligations under the Decree, including supportive housing, Assertive Community Treatm ent, case management, and other services, such that class members can meaningfully exercise the choice to live in the most integrated setting appropriate.
2. Relief Afforded to Class Members Currently Residing in IMDs. The Decree ensures that individuals cu rrently residing in IMDs who do not oppose placement in a Community-Bas ed Setting (as d efined in the Decree) will rece ive services in th e most integrated setting appropriate to their needs and preferences. Specifically, within two years of the f inalization of the Implementation Plan (“ IP”) (described in Paragraph 4 below), class members will receive appropriate evaluations to determine the supports and services required for them to live in the most integrated setting appropriate to their needs. For class m embers who do
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not oppose moving to a Community-Based Setting, a Qualified Professional (as defined in the Decree) will develop a Service P lan (as defined in the De cree) specific to ea ch individual, in conjunction with the class m ember as well as his or her legal representative, if any, and m ay consult with any other appropriate people of the class member’s choosing. The Service Plan will describe the services required; where and how such services will be developed and obtained; and a timetable for promptly completing the move to a Community-Based Setting.
Within five years of finalization of the IP, all persons residing in IMDs who do not oppose placement in Comm unity-Based Settings will be af forded the chance to move to such Settings consistent with their Service Plans. The Decree sets forth interim benchmarks to assure continual progress toward that goal.2 The Decree does not force anyone to m ove out of an IM D if they do not wish to do so.
3. Monitoring and Compliance. Under the proposed Decree, the Court will appoint an independent and impartial Monitor who is knowledgeable concerning the m anagement and oversight of program s serving individuals with m ental illness. The Monito r will be responsible for gauging Defendants’ compliance with the Decree, identifying actual and potential areas of non-com pliance with the Decree, and recommending appropriate action by the Court in the event that any issues cannot be resolved by discussion and negotiation among the Monitor and the Parties. The Monitor will file
2 Benchmarks include the following: Defendants will have offered placement to a minimum of 640 individuals residing in IMDs who are appropriate for living in a Community-Based Setting and who do not oppose moving to a Community-Based Setting within two (2) years of finalization of the IP; Defendants will have offered placement to a minimum of forty percent (40%) of all individuals residing in IMDs who are appropriate for living in a CommunityBased Setting and who do not oppose moving to a Community-Based Setting within three (3) years of finalization of the IP; and Defenda nts will have offered placement to a minimum of seventy pe rcent (70%) of all individuals residing in IMDs who are appropriate for living in a Community-Based Setting and who do not oppose moving to a Community-Based Setting within four (4) years of finalization of the IP.
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Case 1:05-cv-04673 Document 239 Filed 03/15/10 Page 6 of 16
annual, publicly available reports with the Court to provide info rmation sufficient for the Court to evaluate Defendants’ compliance or non-compliance with the Decree.
4. Implementation Plan. The proposed Decree requires Defendants (wit h assistance f rom the Monitor and class counsel) to develop an “Implementation Plan” to accomplish the obligations and objectives set forth in the Decree. The Im plementation Plan will set f orth specific tasks, tim etables, and protocols to ensure tha t Defendants fulfill th e requirements of each provision of the Decree ; describe the hiring, training and supervision of the personnel necessary to implement the Decree; describe necessary activities to develop Comm unity-Based Services (as defined in the Decree) and Community-Based Settings; identify any services or supports re quired in Service Plans that are not currently available in sufficient quantity; identify any services and supports which, based on demographic or other data, are expected to be required to meet Defendants’ obligations under the Decree; identify any changes to regulations governing IMDs that w ould strengthen services for persons with m ental illness and to prov ide for effective ove rsight and enforcem ent of all regulations and laws; describe the m ethods by which Defendants will ensure compliance with their obligations related to evaluations; and de scribe the m ethods by which Defendants will ensure compliance with their obligations related to outreach to class members.
5. Attorneys’ Fees and Costs. In full settlement of attorneys’ f ees incurred to date in connection with the litiga tion, Defendants will pay $1,990,000.00 to class counsel. This sum accounts for less than half of the value of the total tim e spent by class counsel. Additionally, Defendants will pay all costs and expenses incurred by class counsel through and including the approval of the Decree and any appeal thereof.
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Case 1:05-cv-04673 Document 239 Filed 03/15/10 Page 7 of 16
B. THE PROPOSED CONSENT DECREE MERITS PRELIMINARY APPROVAL.
Preliminary approval of a proposed settlem ent is the first in a two- step process required before a class action m ay be settled. David F. Herr, M ANUAL FOR COMPLEX LITIGATION, FOURTH (“MANUAL FOURTH”), § 30.4 (2005). In considering preliminary approval, the court must first determine whether the proposed settlem ent is within the range of reasonableness that ultimately could be giv en final approval. See Armstrong v. Bd. of Sch. Dirs. of the City of Milwaukee, 616 F.2d 305, 312 (7th Cir. 1980). The co urt must review the settlem ent for fairness, adequacy, and reasonableness. Id. at 313 (“The courts of ap peals have required that district court approval of a se ttlement pursuant to Rule 23 (e) be given only wher e the district court finds the settlement fair, reasonable and adequate.”). If the court finds that a settlement is “within the range of possible approval,” it then proceeds to the second step in the review process, the fairness hearing. Id. at 310; see also 4 Robert Newberg, N EWBERG ON CLASS ACTIONS § 11:25 at 38 (4th ed. 2002) (“N EWBERG”) (“If the preliminary evaluation of the proposed settlement does not disclose grounds to doubt its fairness or other obvious deficiencies . . . and appears to fall within the range of possible appr oval, the court should di rect that notice under Rule 23(e) be given to the class members of a formal fairness hearing . . . .”). The purpose of the fairness hearing is to “provide class m embers an opportunity to pres ent their views on the proposed settlement and to hear argum ents and evidence for and against the term s.” M ANUAL FOURTH § 21.633.
The Seventh Circuit has iden tified six facto rs for analy zing whether a clas s action settlement should be given fina l approval. T hese factors ar e equally germ ane in deciding whether to grant preliminary approval:
1. the strength of the plaintiff’s case on the merits balanced against the settlement;
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Case 1:05-cv-04673 Document 239 Filed 03/15/10 Page 8 of 16
2. the complexity, length and expense of continued litigation; 3. the amount of opposition to the settlement; 4. the presence of collusion in gaining a settlement; 5. the opinion of com petent counsel regarding the reasona bleness of the settlement; and 6. the stage of the proceedings and the amount of discovery completed. See GE Capital Corp. v. Lease Resolution Corp. , 128 F.3d 1074, 1082 (7th Cir. 1997); Donovan v. Estate of Fitzsimmons, 778 F.2d 298, 308 (7th Cir. 1985). Th e district court should refrain from resolving the m erits of the case or resolving unsettled legal questions. Carson v. Am. Brands, Inc., 450 U.S. 79, 88 n.14 (1981); see also EEOC v. Hiram Walker & Sons , Inc., 768 F.2d 884, 889 (7th Cir. 1985). Be cause the object of settlement is to avoid, not confront, the determination of contested issues, the approva l process should not be converted into an abbreviated trial on the m erits. Van Horn v. Tri ckey, 840 F.2d 604, 607 (8th Cir. 1988) (“the district court need not undertake the type of detailed investiga tion that trying the case would involve”). Instead, the court’s inquiry should be “lim ited to th e consideration of whether the proposed settlement is lawful, fair, reasonable, and adequate.” Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir. 1996). As set forth in the following s ections, application of these six factors in the context of this litigation merits preliminary approval of the Decree.
1. Strength of the Plaintiffs’ Case o n the Merits Balanced Against the Terms of the Consent Decree.
The terms of the Decree are fair, reasonable and adequate when balanced against the strength of the Plaintiffs’ cas e on the m erits. Plaintiffs allege that Defendants have failed to comply with the integration m andates required by the ADA and Section 504, and specifically allege that the vast m ajority of IMD residents with mental illness are not being se rved in the
8

Case 1:05-cv-04673 Document 239 Filed 03/15/10 Page 9 of 16
most integrated setting appropriate to their needs, their lives often are damaged because they lose the opportunity to participate fully in their co mmunities, most would choose to liv e in a m ore integrated setting if given a meaningful choice, and it would not fundamentally alter Defendants’ service system to afford these indiv iduals the opportunity to live in the most integra ted setting. Plaintiffs believe they have developed the neces sary proof to support these claim s, including the retention of experts who would te stify, among other things, that m ost class members can live in supportive housing, a far m ore integrated setting th an an IMD; that m ost class members would choose to live in m ore integrated settings if given a meaningful choice; that supportive ho using can and has served individuals w ith mental illness with a wide variety of needs, including individuals with very challeng ing needs; that Defendants have the ability to make supportive housing and other Community-Based Settings av ailable to class m embers and co uld do so without incurring undue cost s (and would in fact realize savings from doing so); that there are service providers in Illinois who have the capab ility and willingness to s erve IMD residents in more integrated settings; and that Defendants do not have a com prehensive, effectively working plan for moving individuals from IMDs to more integrated settings. Defendants’ experts disagreed with some of these conclusions bu t acknowledged that m any people living in IMDs could live in more integrated settings, including supportive housing.
Despite the strengths of Plaintiffs’ case, Plain tiffs are mindful of the hurdles to establish Defendants’ liability and overcome any affirmative defenses. Plaintiffs also are m indful of the possibility of an adverse ruling on appeal if they prevail at trial. Im portantly, however, because the proposed Decree ensures that individuals with mental illness are offered the opportunity to make informed, meaningful choices as to w hether or not their needs can bes t be m et in Community-Based Settings or institutiona l settings, and ensures the av ailability of integrated
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settings for those who do not oppose them , the Decree grants m uch of the relief sought in Plaintiffs’ Complaint, which Defendants acknowledge is appropriate for the individuals that their agencies are intended to serve. In addition, w ithout conceding the m erits of the Plaintiffs’ allegations, Defendants believe that the serv ices and supports required by the Decree are consistent with their vision of the future direction of the mental health services system in Illinois, including the need to develop integrated housing and Community-Based Services for individuals with mental illness. Accordingly, all Parties jointly submit that the Decree is fair, reasonable and adequate.
2. Complexity, Length and Expense of Continued Litigation. The Parties submit that if the proposed Decree is not approved, expensive and protracted litigation will ensu e. A trial would be conten tious and cumbersom e. Collectively, the Par ties would likely call over thirty witnesses, including at least five expert witnesses who reside outside Illinois, and several State em ployees who reside in Springfield, Il linois. The costs and expenses of preparing for trial would be enormous. In addition, both Plaintiffs and Defendants submit that if they do not prevail at trial, they would likely appeal the matter to the Seventh Circuit Court of Appeals. An appeal would all but guarantee that this litigation would drag on for months and possi bly years without resolution or the implementation of any relief for class members. One of the primary benefits of the Decree is that it provides reasonably prompt relief to the class, without these additional major expenditures of time and money. These factor s strongly weigh in favor of pr eliminary and final approval of the Decree.
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3. Opposition to the Settlement. The Parties anticipate that som e may oppos e the Decree. The Decree, however, like Plaintiffs’ Complaint, respects the preferences of class members. Under th e Decree, class members who are currently residing in IMDs ar e afforded the opportunity to choose between an institutional and a Community-Based Setting. The Decree does not force anyone to move out of an institution against his or her will. Accordingl y, the Parties f ully expect that there will be no persuasive opposition to the settlement.
4. Lack of Collusion. As a matter of law, a court should presume that negotiations were conducted in good faith and that the resulting agreement was reached without collusion in the absence of evidence to the contrary. Mars Steel v. Cont’l I ll. Nat’l Bank & Trus t, 834 F.2d 677, 681-81 (7th Cir. 1987); Armstrong, 616 F.2d at 325; N EWBERG § 11.41. Nothing supports a different result here. This Court has had an opportunity to see the Partie s’ vigorous advocacy throughout the pendency of the case. T he Parties have engaged in ex tensive written and deposition discovery and several contested motions, including Plaintiffs’ motion for class certification. In addition, the proposed Decree took m onths to negotiate. Numerous in-person meetings and settlement conferences were conducted. Counsel for the Parties exchanged several drafts, advocating forcefully for language most advantageous to their clients. See, e.g., Maley v. Del Global Techs. Corp. , 186 F. Supp. 2d 358, 366 (S.D.N.Y . 2002) (finding negotiations leading to class action settlem ent were arm ’s-length in p art because they had occurred over several months and inv olved several in-p erson meetings). Because th e Decree resulted from arm’s-length negotiations between experienced counsel after significant discovery had occurred, and no evid ence exists to the con trary, the Decr ee should be presumed to have been reached without collusion. See, e.g., Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir.
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2005) (“presumption of fairness, adequacy, and r easonableness may attach to a class settlem ent reached in arm’s-length negotiations between experienced, capable cou nsel after m eaningful discovery” (internal quotations omitted)).
5. Opinion of Competent Counsel as to the Reasonableness of the Settlement.
The court is “entitled to rely heavily on the opinion of competent counsel.” Armstrong, 616 F.2d at 325. Counsel for the Parties, who are competent and experienced in class action and civil rights litigation, all recommend acceptance of the proposed Decree. The proposed Decree provides a fair, reasonable, and adequate disposition of the lawsuit. Indeed, the Decree embodies the single most im portant aspect of the relief s ought by Plaintiffs – that residents of IMDs are provided opportunities to receive services in the m ost integrated se tting appropriate to the ir needs.
6. Stage of the Proceeding and Amount of Discovery Completed. Another factor strongly supportin g approval of the Decree is the extent of written, oral, fact and expert discovery conducted in this case before settlement was reached. The Parties have thoroughly explored the factual an d legal underpinnings of this case. The Parties reached agreement regarding a settlem ent after having spen t more than four years actively litigating the case. The Parties have produced and reviewed hundr eds of thousands of page s of documents, conducted over thirty depositions, and worked ex tensively with experts. Considerable thirdparty discovery was conducted. There was a com plete factual record th at experienced class counsel could evaluate to decide what would be a fair resolution for Plaintiffs and the Class.
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Case 1:05-cv-04673 Document 239 Filed 03/15/10 Page 13 of 16
THE PROPOSED NOTICE PLAN SATISFIES THE REQUIREMENT OF RULE 23 AND DUE PROCESS
Rule 23(e)(1) requires the court to direct notice of a proposed settlement in a “reasonable manner to all class mem bers who would be bound by the proposal.” Although notice is mandatory to satisfy due process considerations , the extent of the notice is discretionary, particularly with a Rule 23(b)(2) class with no right of opt-out. See Walsh v. Great Atl. & Pac. Tea Co., 726 F.2d 956, 962 (3d Ci r. 1983) (Rule 23(c) (2)’s requirement of “the best notice practicable” is inapplicable for notice of settlement of a Rule 23(b)(2) class); Fontana v. Elrod, 826 F.2d 729, 732 (7th Cir. 1987) (no tice not required af ter certification of a R ule 23(b)(2) class). In a Rule 23(b)(2) class action, “m echanics of the notice process are left to the discretion of the court subject only to the broad ‘reason ableness’ standards imposed by due process.” Fowler v. Birmingham News Co., 608 F.2d 1055, 1059 (5th Cir. 1979).
In determining what typ e of notice is reasonab le, courts con sider whether the no tice is sufficient to “bring the proposed settlem ent to the attention of representative class m embers who may alert the court to inadequacies in [class ] representation, or conflicts in interest am ong subclasses, which might bear upon the fairness of the settlem ent.” Walsh, 726 F.2d at 963-64 (upholding notice by publication and mail to representative m embers in Rule 23(b)(2) class). Courts have routinely approved notice plans in Rule 23(b)(2) cas es, such as this one, where notice consisted of publication and/or other reasonable forms of direct or indirect notice. Fresco v. Auto Data Direct, Inc., No. 03-61063-CIV, 2007 WL 2330895, at *8 (S.D. Fla. May 14, 2007) (approving a notice p lan that included a combination of publication and Internet notice but did not require individual notice); Hawker v. Consovoy , 198 F.R.D. 619, 621 (D.N.J. 2001) (publication notice in two newspapers as well as in all relevant pr isons and jails was sufficient). For example, in Kaplan v. Cher toff, No. 06-5304, 2008 WL 200108, at *13 (E.D. Pa. Jan. 24,
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Case 1:05-cv-04673 Document 239 Filed 03/15/10 Page 14 of 16
2008), the court approved a notice plan on behalf of a Rul e 23(b)(2) class of approxim ately 50,000 non-US citizens seeking injunctive relief from the government, and the p roposed notice included posting the notice on th e appropriate governmental websites and providing notice to a network of community-based and n on-profit immigration organizations. Of particular relevance here was the court’s finding that “the organizations that receive[d] the notice are well-positioned to spread information regarding the settlement to their clients by pos ting the notice in the ir facilities or on their websites.” Id.
The Parties submit that the proposed Notice Pl an (attached as Exhi bit B to the Motion) provides for the most reasonable notice under the circumstances. The Notice Plan includes: (1) publication notice in nine newspape rs throughout Illinois with a co llective circulation of over 1 million readers; (2) posting notice on the websites of the Illinois Department of Human Services, Division of Mental Health, Equip for Equality, the not-for-profit corporation appointed by the State of Illinois to implement the federally-mandated Protection and Advocacy System in Illinois for individuals with, among other things, psychiatric disabilities, Access Living, the Am erican Civil Liberties Union o f Illinois, and the Bazelon Center f or Mental Health Law; (3) m ailed notice to all preadmission screening (“PAS”) agencies throughout Illinois, which are responsible, by contract with the State of Illinois , for determining an individual’s eligibility for placement in an IMD; (4) mailed notice to num erous disability rights-relate d organizations; and (5) mailed notice to all 26 private IMDs in Illinois, which will be asked to display the notice conspicuously and provide a copy of the notice to the residents and their guardia ns, if any. The cost of the Notice Plan will be f ully borne by Defendants. The Notice Plan is r easonable and clearly satisfies due process.
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In conjunction with the proposed Notice Plan, the Parties request that the Court approve the form and content of the proposed Notices. ( See Exhibits B-1 and B-2 to the Motion.) The Notices are written in sim ple terminology and include (i) a desc ription of the class; (ii) a description of the proposed Decree; (iii) an explanation of the ri ghts of class m embers; (iv) the names of class counsel; (v) the fairness hearing da te; (vi) a statem ent regarding attorneys’ fees and expenses; (vii) a statement of the de adline for filing objections to the Decree; and (ix) instructions for obtaining further information. Those notices sati sfy the content requirements of Rule 23 of the Federal Rules of Civil Procedure. See MANUAL FOURTH § 21.633.
CONCLUSION For the foregoing reasons, and pursuant to Ru le 23, the Parties respectfully request that the Court enter an Order (1) granting prelim inary approval of the proposed Decree; (2) requiring notice in the for m and method of the Parties’ pr oposed Notice Plan; and (3) setting a date for a Fairness Hearing on the proposed Decree.

Dated: March 15, 2010
By: s/ Brent D. Stratton
THOMAS A. IOPPOLO #1303686 BRENT D. STRATTON #6188216 KATHLEEN KREISEL FLAHAVEN #6180961 Assistant Attorneys General 100 W. Randolph Street, 13th Floor Chicago, IL 60601 (312) 814-7198
KAREN KONIECZNY #1506277 JOHN E. HUSTON #3128039 CHRISTOPHER S. GANGE #6255970 Assistant Attorneys General 160 North LaSalle Street, Suite N-1000 Chicago, IL 60601 (312) 793-2380

Respectfully submitted,
By: s/ Angela D. Marston
THE ROGER BALDWIN FOUNDATION OF THE AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS Benjamin S. Wolf Lori N. Turner 180 North Michigan Avenue Suite 2300 Chicago, Illinois 60601 Telephone: (312) 201-9740 Facsimile: (312) 201-9760
EQUIP FOR EQUALITY Amy F. Peterson Laura Miller John Whitcomb 20 N. Michigan, #300 Chicago, IL 60602 Telephone: (312) 341-0022

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ATTORNEYS FOR DEFENDANTS

Facsimile: (312) 341-0295
ACCESS LIVING OF METROPOLITAN CHICAGO Edward Mullen 115 West Chicago Avenue Chicago, IL 60610 Telephone: (312) 640-2100 Facsimile: (312) 640-2139 TTY (312) 640-2102
THE BAZELON CENTER FOR MENTAL HEALTH LAW Ira Burnim Jennifer Mathis Karen Bower 1101 15th Street, NW Suite 1212 Washington, DC 20005 Telephone: 202-467-5730 Facsimile: 202-223-0409
KIRKLAND & ELLIS LLP Donna M. Welch, P.C. Joseph M. Russell Elizabeth J. Kappakas Angela D. Marston 300 North LaSalle Chicago, IL 60654 Telephone: (312) 862-2000 Facsimile: (312) 862-2200
ATTORNEYS FOR PLAINTIFFS

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 Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 1 of 25

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

ETHEL WILLIAMS, et al.,

)

)

Plaintiffs,

)

)

No. 05 C 4673

)

vs.

)

)

Judge Hart

)

Magistrate Judge Denlow

PAT QUINN, et al.,

)

)

)

Defendants.

)

______________________________________________________________________________

PROPOSED CONSENT DECREE

______________________________________________________________________________

Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 2 of 25
TABLE OF CONTENTS INTRODUCTION AND BACKGROUND ............................................................................... 1 DECREE........................................................................................................................................ 2 I. JURISDICTION ......................................................................................................................... 2 II. PURPOSE…….......……………………………………………………………………………2 III. CLASS DEFINITION ............................................................................................................. 2 IV. DEFINITION OF TERMS ...................................................................................................... 2 V. THE MENTAL HEALTH SERVICES SYSTEM .................................................................... 7 VI. INDIVIDUALIZED EVALUATIONS AND PLANNING FOR INDIVIDUALS RESIDING IN IMDS...................................................................................................................... 7 VII. OUTREACH......................................................................................................................... 15 VIII. IMPLEMENTATION.......................................................................................................... 15 IX. MONITORING AND COMPLIANCE.................................................................................. 17 X. NAMED PLAINTIFFS............................................................................................................ 20 XI. ATTORNEYS’ FEES AND COSTS...................................................................................... 20 XII. MISCELLANEOUS PROVISIONS..................................................................................... 21

Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 3 of 25
INTRODUCTION AND BACKGROUND Plaintiffs1, a class of Illinois residents with Mental Illness living in Institutions for Mental Diseases (“IMDs”), filed this lawsuit on A ugust 15, 2005, seeking declaratory and injunctive relief to redress violations of Title II of the Americans with Disa bilities Act (“ADA”), 42 U.S.C. §§ 12131, 12132, and Section 504 of the Re habilitation Act, 29 U.S.C. § 794(a). Plaintiffs allege that they are needlessly segregated and institutionalized in IMDs, where they are forced to live with dozens—a nd often hundreds—of other people with Mental Illness, in violation of the ADA and the Rehabilitation Act requi rements to administer services in the m ost integrated appropriate setting. Plaintiffs allege that Defendants have deni ed them the opportunity to live in integrated settings where they could lead m ore independent and more productive lives in their own communities. Plaintiffs seek injunctive relief (1) requiring Defendants to inform Plaintiffs that they may be eligible for community services an d have a ch oice of such services, (2) requiring Defendants to promptly determine eligibility for such services, (3) prohibiting Defendants from arbitrarily denying eligibility for services, and (4) requiring Defendants to prom ptly provide appropriate services that allow Plaintif fs to live in the most integ rated setting a ppropriate. Defendants deny liability and sp ecifically deny that they have violated the ADA or the Rehabilitation Act. Therefore, upon all of the foregoing, and th e Court being otherwise fully advised, the Court hereby ORDERS, ADJUDGES and DECREES as follows:
1 Capitalized terms set f orth herein are def ined in Section IV, “D efinition of Terms.” Noncapitalized terms will have the m eaning ordinarily attributed to the m and shall be separate and apart from the terms defined in Section IV, “Definition of Terms.”
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DECREE

I. JURISDICTION

1. The Court has jurisdiction over this litigation pursuant to 28 U.S.C. § 1331 and

28 U.S.C. § 1343.

II. PURPOSE

2. The purpose of this Consent Decree is to assure that Defendants provide

Plaintiffs with the opportunity to receive the services they need in the most integrated setting

appropriate and to promote and ensure the d evelopment of integrated settings that m aximize

individuals' independence, choi ce, opportunities to develop and use independent living skills,

and afford the opportunity to live similar lives to individuals without disabilities.

III. CLASS DEFINITION

3. The Class is defined as:

All Illinois residents who are eighteen (18) years old or older and who:

(a) have a Mental Illness;

(b) are institutionalized in a privately owned Institution for Mental Diseases; and

(c)

with appropriate supports and services may be able to live in an integrated

community

setting.

IV. DEFINITION OF TERMS

4. As used herein, the following terms have the following meanings:

i)

“Class” and “Class Mem bers” mean the persons who, as of the date of

Approval of the Consent Decree or at any time in the f uture while th is

lawsuit is pending and dur ing the tim e covered by the Decree, m eet the

definition set forth in Section III, above.

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ii) “Community-Based Services” m eans those services provided under the

Illinois Medicaid State Plan, a s well as the services described in the

Medicaid Community Mental Health Services Program administered by

the Illinois Department of Human Services’ Division of Mental Health and

authorized pursuant to 59 Ill. Adm. Code Part 132 (hereafter referenced as

Rule 132), in effect as of the date of Approval of the Dec ree, including

any amendments thereto.

iii)

“Community-Based Setting” means the most integrated setting appropriate

for a person with Mental Illness, where the setting is designed to promote

independence in daily living, economic self-sufficiency and the ability to

interact with non-disabled persons to the fullest extent possible. A

Community-Based Setting m ay include: (1) Perm anent Supportive

Housing; (2) independent housing with the Class Mem ber’s family or

friends; (3) other independent housing not owned or operated by a social

service entity; or (4) any supported or supervised residential service within

the DMH service taxonomy.

iv)

“Community-Service Provider” or “Provider” means a provider certified

by the Illinois Department of Human Services for the provision of

Community-Based

Services.

v) “Court” means the United States District Court for the Northern Distric t

of Illinois, Eastern Division.

vi) “Decree” means this Consent Decree.

vii) “Defendants” means the Governor of the State of Illinois, the Secretary of

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Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 6 of 25

the

Illinois Department of Human Services, the Director of the Division of

Mental Health of the Illinois Department of Human Services, the Director

of the Illinois Department of Public Health, the Director of the Illinois

Departm

ent of Healthcare and Family Services, and any of their

successo

rs.

viii) “Evaluation” means an assessm ent provided by a Qualified Professional

under contract with the State to residents of IMDs or potential residents of

IMDs, and includes Evaluations conduc ted (i) to implement this Decr ee,

(ii) as part of a PASRR Process, (iii) in response to a report of significant

change in a resident’s physical or mental condition, (iv) in response to a

request from a resident, or (v) as part of a regular assessment of residents.

Each Evaluation shall include, although not be limited to, an assessment of

the Class Member’s medical condition as it b ears on his or h er

appropriateness for p lacement in a Community-Based Setting, a

consultation with the Class M ember’s psychiatrist and/or other

professional staff whe re appropriate, and a consultation with other

appropriate people of the Class Member’s choosing.

ix)

“Implementation Plan” means the plan set forth in Subsection VIII.11.

below.

x) “Illinois Medicaid S tate Plan” or “State Plan” m eans the plan that was

submitted by the State of Illinois to the United States Departm ent of

Health and Human Services, Centers for Medicare and Medicaid Services,

in accordance with Title XIX of the So cial Security Act, 42 U.S.C. §§

4

Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 7 of 25

1396-1396v, in effect as of the date of the Approval of the Decree,

including any amendments.

xi) “Institution for Mental Diseases” or “IMD” means a privately owned long-

term care facility clas sified as an Institution for Mental Diseases for

purposes of claiming Federal Medicaid matching funds.

xii) “Mental Illness” m eans serious m ental illness as def ined in 77 Illin ois

Administrative Code, Chapter I, Section 300.4000.

xiii) “Monitor” means the person or entity appointed by the Court pursuant to

Section IX hereof to perform the functions more fully described therein.

xiv) “Named Plaintiffs” means the following people, each of whom the Court

certified as a clas s representative in the litigation: Eth el Williams, Jan

Wrightsell, Edward Brandon, and Gilbert Parham.

xv) “Parties” means Plaintiffs and Defendants, collectively.

xvi) “Plaintiffs” means the Named Plaintiffs and Class Members, collectively.

xvii)

“Pre-Admission Screening and Resident Review (PASRR) Agency”

means any independent agency that (1) contracts with the State to perform,

in conformance with federal screening requirem ents, pre-admission

screening and resident reviews on persons with Mental Illness who may be

placed or currently reside in an IMD, and (2) as a condition of its contract

with the State, has received suffici ent training and/or has sufficient

experience providing services to demonstrate a com prehensive

understanding of the available reside ntial options, including Perm anent

Supportive Housing, and Community-Based Services.

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Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 8 of 25

xviii) xix) xx)

“Pre-Admission Screening and Resident Review (PASRR) Process” means the eligib ility, admission and assessment process for individuals who may be or have been placed in an IMD. “Qualified Professional” means persons who are a ppropriately licensed, credentialed, trained and employed by a PASRR Agency. “Permanent Supportive Housing” or “PSH” refers to integrated permanent housing with tenancy rights , linked with flexible Comm unityBased Services that are available to consumers when they need them , but are not mandated as a condition of tenancy. For purposes of this Decree, PSH includes scattered-s ite housing as well as ap artments clustered in a single building, but no more than 25% of the units in one building with more than four (4) units m ay be used to serve PSH clients known to have Mental Illness. For buildings with two (2) to four (4) units, no m ore than 50% of the units m ay be used to se rve PSH clients known to have Mental Illness. However, during the first fi ve years after finalization of the Implementation Plan, up to 75 Class Members may be placed in buildings where more than 25% of the units serve PSH clients known to have Mental Illness if those buildings wer e used to serve PSH clients prio r to March 1, 2010. After the first five (5) years following the finalization of the Implementation Plan, all Class Members who are being served in PSH shall be offered the opportunity to reside in buildings that comply with the 25% or 50% unit limits set forth above in this subparagraph.

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Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 9 of 25
xxi) “Service Plan” as used in this Decree m eans a plan containing a description of goals, in cluding transition to Co mmunity-Based Settings, and strategies that will be em ployed and services provided to achieve those goals.
xxii) “State” means the State of Illinois. V. THE MENTAL HEALTH SERVICES SYSTEM
5. Development of Community Capacity. Defendants shall ensure the availability of services, supports and other resources of sufficien t quality, scope and variety to meet their obligations under the Decree and the Implementation Plan. Defendants shall implement sufficient measures, consistent with the preferences, strengths and need s of Class Members, to provide Community-Based Settings and Community-Based Services pursuant to the Decree. VI. INDIVIDUALIZED EVALUATIONS AND PLANNING FOR INDIVIDUALS
RESIDING IN IMDS 6. Evaluations.
a) Within two (2) years of the f inalization of the Im plementation Plan described below, every Class Member will rece ive an independent, professionally appropriate and person- centered Evaluation of his or her preferences, strengths and needs in order to de termine the CommunityBased Services required for hi m or her to live in PSH or another appropriate Community-Based Setting. Any Class Mem ber has the right to decline to take part in such Evaluation. Any Class Member who has declined to be evaluate d has the right to receive an Evaluation any time thereafter on request.
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Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 10 of 25

b)

Defendants shall ensure that Evaluations are conducted by Qualified

Professionals as defined in this Decree.

c) Defendants shall ensure, as provi ded in the Im plementation Plan, that all

Class Members shall be inform ed about Community-Based Settings,

including Permanent Supportive Housing, and Community-Based Services

available to assist individuals in th ese settings, and the f inancial support

Class Members may receive in these settings.

d) After the second year following fi nalization of the Im plementation Plan,

the Evaluations described in Subsection 6(a) shall be condu cted annually.

As part of each Class Mem ber’s annual Evalu ation, the reasons for any

Class Member’s opposition to m oving out of an IMD to a Comm unity-

Based Setting will be f ully explored and appropria tely addressed as

described in Section VII. Any Cl ass Member who has received an

Evaluation but has declined to m ove to a Community-Based Setting may

request to be reassessed for transition to a Community-Base d Setting any

time thereafter.

7. Service Plans.

a) Based on the results of the Evalua tions described above, Defendants shall

promptly develop Service Plans speci fic to each Class M ember who is

assessed as appropriate for transition to a Community-Based Setting. Each

Service Plan shall be periodically upda ted to reflect any changes in needs

and preferences of the C lass Member, including his or her desire to m ove

to a Community-Base d Setting a fter declining to do so, and shall

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Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 11 of 25
incorporate services where appropriate to assist in acquisition of basic and instrumental activities of daily livin g skills and illness se lf-management. Acquisition of such skills shall not b e a prerequisite for transitioning out of the IMD. b) For each Class Mem ber who does not oppose moving to a Comm unityBased Setting, the Service P lan shall, at a m inimum, describe the Community-Based Services the Clas s Member requires in a CommunityBased Setting, includin g the serv ices the Class Mem ber will need to transition to a Community-Based S etting, and a tim etable for completing that transition. If there has been a determination that a Cla ss Member is not currently appropriate for PSH, th e Service Plan shall specify what services the Class Member needs th at could not be provided in PSH and shall describe the Community-Based Services the Class Member needs to live in ano ther Community-Based Setting that is the m ost integrated setting appropriate. c) The Service Plan sh all be d eveloped by a Qualifie d Professional in conjunction with the C lass Member and his or her legal representative. The Qualified Professional also shall consult with other appropriate people of the Class Member’s choosing. d) Each Service Plan sh all focus on the Class M ember’s personal v ision, preferences, strengths and need s in hom e, community and work environments and shall reflect the va lue of supporting the individual with
9

Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 12 of 25

relationships, productive work, part icipation in community life, and

personal decision-making.

e) The Service Plan shall not be limited by t he current availability of

Community-Based Services and Settings; provided, however, that nothing

in this sub paragraph obligates Defendants to provide any type of

Community-Based Service beyond the types of Community-Based

Services included in the State Plan and Rule 132.

f)

The Service Plan shall be com pleted within sufficient time to provide

appropriate and sufficient transitions for Class Mem bers in accordan ce

with the benchmarks set forth in the Decree.

8. Benchmarks for Transitions for Individuals Residing in IMDs.

a) Within five (5) years of the f inalization of the I mplementation Plan, all

Class Members who have been assesse d as appropriate for living in a

Community-Based Setting will be offe red the opportunity to m ove to a

Community-Based Setting.

b) Within one (1) year of fina lization of the Im plementation Plan, no

individual with Mental Illness shall be admitted to an IMD without a pre-

screening having first been conducte d through the PASRR Pr ocess and an

initial Service Plan completed. De fendants will ensu re that the PASRR

Process: identifies and assesses ind ividuals who m ay be appropriate for

placement in a Community-Bas ed Setting; identifies Community-Based

Services that would facilitate th at placement; and ensures th at approved

admissions to IMDs are for only th ose IMDs that can p rovide treatment

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Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 13 of 25
consistent with the individual’s initial Service Plan and consistent with the goal of transition to a Co mmunity-Based Setting. After the first five (5) years following the finalization of th e Implementation Plan, no individual with Mental Illn ess whose Service Plan pro vides for placem ent in Community-Based Settings shall be housed or offered placem ent in a n IMD at public expense unless, after being fully informed, he or she declines the opportunity to receiv e services in a Community-Based Setting. c) By the end of the first year af ter the finalization of the Implem entation Plan, Defendants will h ave: (1) offered placem ent in a Community-Base d Setting to a m inimum of 256 Class Mem bers who are assessed as appropriate for living in a Comm unity-Based Setting and who do not oppose moving to a Community-Based Setting; and (2) developed 256 PSH units for the benefit of Class Members. d) By the end of the second year af ter the finalization of the I mplementation Plan, Defendants will h ave: (1) offered placem ent in a Community-Base d Setting to a m inimum of 640 Class Mem bers (including the 256 referenced in subparagraph 8(c) ab ove) who are assessed as appropriate for living in a Community-Based Setting and who do not o ppose moving to a Community-Based Se tting; and (2) develope d 640 PSH units for the benefit of Class Members. e) By the end of the third year af ter the finalization of the Implem entation Plan, Defendants will have: (1) offered placement to at least forty percent
11

Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 14 of 25
(40%) of all individuals who are assessed as appropria te for living in a Community-Based Setting and who do not oppose moving to a Community-Based Setting; and (2) developed the corresponding num ber of PSH uni ts or other Community-Bas ed Settings suf ficient for these individuals. For purposes of this subparagraph, th ese individuals include the total of (1) all Class Members as of the end of the second year after the finalization of the I mplementation Plan who are assessed as appropriate for living in a Community-Based Setting and who do not o ppose moving to a Community-Bas ed Setting, and (2) all form er Class Mem bers who have already transitioned from the IMD to a Community-Based Setting or to another community setting sinc e finalization of the Implem entation Plan. f) By the end of the fourth year after the finalization of the Implementation Plan, Defendants will ha ve: (1) offered placem ent to at leas t seventy percent (70%) of all individuals who are assessed as appropriate for living in a Community-Based Setting an d who do not oppose m oving to a Community-Based Setting; and (2) developed the corresponding num ber of PSH uni ts or other Community-Bas ed Settings suf ficient for these individuals. For purposes of this subparagraph, th ese individuals include the total of (1) all Class Mem bers as of the end of the third year after th e finalization of the I mplementation Plan who are assessed as appropriate for living in a Community-Based Setting and who do not o ppose moving to a Community-Bas ed Setting, and (2) all form er Class Mem bers who
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Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 15 of 25

have already transitioned from the IMD to a Community-Based Setting or

to another community setting sinc e finalization of the Implem entation

Plan.

g) By the end of the f ifth year af ter the finalization of the Implem entation

Plan, Defendants will have: (1) offered placement to one hundred percent

(100%) of all individuals who are assessed as appropriate for living in a

Community-Based Setting and who do not oppose moving to a

Community-Based Setting; and (2) developed the corresponding num ber

of PSH uni ts or other Community-Bas ed Settings suf ficient for these

individuals. For purposes of this subparagraph, th ese individuals include

the total of (1) all Class Members as of the end of the fourth year after the

finalization of the I mplementation Plan who are assessed as appropriate

for living in a Community-Based Setting and who do not o ppose moving

to a Community-Bas ed Setting, and (2) all form er Class Mem bers who

have already transitioned from the IMD to a Community-Based Setting or

to another community setting since th e finalization of the Implem entation

Plan.

h) After the end of the fifth year following finalization of the Implementation

Plan, Class Members who are as sessed as appropriate for living in a

Community-Based Setting, who do not oppose transition to a Community-

Based Setting and whose Service Plans provide for placem

ent in

Community-Based Settings shall be o ffered the opportunity to m ove to

those settings and shall receive ap propriate services con sistent with the

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Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 16 of 25
Service Plan within one hundred and twen ty (120) days of the date of the Service Plan. 9. Community-Based Settings and Community-Based Services a) PSH will be considered the m ost integrated setting appropriate f or Class Members except that, (1) for any Class Members (i) w ho have severe dementia or other severe cognitive impairments requiring such a high level of staffing to assist with activities of daily living or self-care m anagement that they cannot effectively be served in PSH, (ii) who have medical needs requiring a high lev el of skilled nursing c are that m ay not saf ely be provided in PSH, or (iii) who present an imminent danger to themselves or others, the evaluator will dete rmine the m ost integrated setting appropriate, which may be PSH or a nother setting, and (2) nothing in this paragraph shall prevent Class Members who can and wis h to liv e with family or friends or in other inde pendent housing that is not connected with a service provider from doing so. Those Class Mem bers not transitioning from IMDs into PSH will have o ngoing reassessments with treatment objectives to p repare them for subsequent transition to the m ost integrated setting appropriate, including PSH. b) Class Members who move to a Community-Based Setting will have access to all appropriate Community-Based Services, including but not limited to reasonable measures to ensure that their housing remains available in the event that they are temporarily pla ced in a ho spital or other treatm ent facility.
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Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 17 of 25

c) Qualified Professionals shall inform Class Members of their options

pursuant tosubparagraphs 6(a), 6(d), and 7(b) of this Decree. Class

Members shall not be subjected to any form of retaliation in response to

any option selected nor shall they be pressured to refrain from exploring

appropriate alternatives to IMDs.

VII. OUTREACH

10. Defendants shall ensure that Class Members have the opportunity to receive

complete and accurate infor mation regarding their rights to live in Comm unity-Based Settings

and/or to receive Community-Based Services, and the available options and opportunities for

doing so. The Implementation Plan shall describe the methods by which such information will

be disseminated, the process by which Class Members m ay request services, and the m anner in

which Defendants will m aintain current records of these requests. In addition to providing

information, Defendants shall ensure that the Qu alified Professionals conducting the Evaluations

engage residents who express c oncerns about leaving the IMD w ith appropriate frequency. T he

Implementation Plan shall describe methods for engaging residents, including where appropriate,

providing reasonable opportunities for residents to visit and observe Community-Based Settings.

All costs for outreach shall be borne by Defendants.

VIII. IMPLEMENTATION

11. Overview and Contents of the Implementation Plan. Defendants, with the

input of the Monitor and Plaintiffs, shall crea te and implem ent an Im plementation Plan to

accomplish the obligations and objectiv es set forth in the Decree. The Im plementation Plan

must, at a minimum:

a)

Establish specific tasks, timetables, goals, programs, plans, strategies and

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Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 18 of 25

protoco b)
im c)
d)
e)
f)
g)

ls to assure that Defendants fulfill the requirements of the Decree; Describe the hiring, training and supervision of the personnel necessary to
plement the Decree; Describe the activities required to develop Community-Based Services and Community-Based Settings, incl uding inter-agency agreements, requests for proposals and other acti ons necessary to im plement the Decree; Identify, based on information known at the time the Implementation Plan is finalized and updated on a regular basis, any services or supports anticipated or required in Service Plans formulated pursuant to the Decree that are not currently available in the appropriate quantity, quality or geographic location; Identify, based on information known at the time the Implementation Plan is finalized and updated on a regular basis, any servic es and supports which, based on dem ographic or other data, are expected to be required within one year to meet the obligations of the Decree; Identify any necessary changes to regulations that govern IMDs in order to strengthen and clarify requirem ents for services to persons with Mental Illness and to provide for effective oversight and enforcem ent of all regulations and laws; and Describe the methods by which Defendants shall ensure compliance with their obligations under Paragraph 6 of this Decree.

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Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 19 of 25

h)

Describe the mechanisms by which Defendants shall ensu re compliance

with their obligations under Paragraph 10 of this Decree.

12. Within 135 days of Approval of the Decree, Defendants shall provide the

Monitor and Plaintiffs with a dra ft Implementation Plan. The Monitor and P laintiffs will

participate in developing and finalizing the Im plementation Plan, which shall be f inalized within

nine (9) months following Approval of the Decree. In the event the Monitor or Plaintiffs

disagree with the Defendants’ proposed Implementation Plan, the matter may be submitted to the

Court for resolution.

13. The Implementation Plan shall be updated and amended annually, or at such

earlier intervals as Defendants deem necessary or appropriate. The Monitor and P laintiffs may

review and comment upon any such updates or am endments. In the event th e Monitor or

Plaintiffs disagree with the Defendants’ propo sed updates or am endments, the m atter may be

submitted to the Court for resolution.

14. The Implementation Plan, and all amendments or updates thereto, shall be

incorporated into, and become enforceable as part of the Decree.

15. In the event that any IMD seeks to discharge any Class Member before

appropriate housing is available, including but not lim ited to circum stances in which an IMD

decides to close, Defendants will ensure that t hose individuals are not left without appropriate

housing options based on their preferences, strengths and needs.

IX. MONITORING AND COMPLIANCE

16. Appointment of a Monitor. The Court will appoint an independent and

impartial Monitor who is knowledgeable concerni ng the management and oversight of programs

serving individuals with Mental Illnesses. The Parties will attempt to agree on the selection of a

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Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 20 of 25
Monitor to propose to the Court. If the Parties are unable to reach agreem ent, each party will nominate one person to serve as Monitor and the Court will select the Monitor. W ithin twentyone (21) days of Approval of the Decree, the Parties shall submit their joint recommendation or separate nominations for a Monito r to the Cour t. In the eve nt the Monitor resigns or otherwise becomes unavailable, the process described above will be used to select a replacement.
17. Duties and Reporting. The Monitor’s duties include evaluating Defendants’ compliance with the Decree, identifying actual and potential areas of non-com pliance with the Decree, mediating disputes betw een the Parties, and bringing issues and recomm endations for their resolution to the Court. The Monitor w ill report annually to th e Court and the Parties regarding compliance with the Decree. Such rep orts shall include the information necessary, in the Monitor’s professional judgm ent, for the C ourt and Plaintiffs to evaluate Defendants’ compliance or non-compliance with the terms of the Decree. Th e Monitor may file additional reports as necessary. Reports of the Monitor shall be served on all Parties.
18. Review and Evaluation of Data and Information. The Monitor shall review and evaluate Defendants’ compliance with the term s of the Decree. No t less than every six (6) months, Defendants shall provide the Monitor and Plaintiffs with a detailed report containing data and in formation sufficient to evaluate Defendants’ compliance with the Decree and Defendants’ progress towards achieving com pliance, with the Parties a nd Monitor agree ing in advance of the firs t report of the d ata and information that m ust be included in such report. Defendants will not refuse any request by the Monitor for documents or other information that are reasonably related to the Monitor’s rev iew and evaluation of Defendants’ com pliance with the Decree, and Defendants will, upon reasonable notic e, permit confidential interviews of Defendants’ staff or co nsultants, except their a ttorneys. The Monito r will have access to all
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Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 21 of 25
Class Members and th eir records and files, as we ll as to those service prov iders, facilities, buildings and prem ises that serve, or are othe rwise pertinent to, Class Members, where such access is reasonably related to the Monitor’s re view and evaluation of Defendants’ com pliance with the Decree. The Defendants shall comply with Plaintiffs’ requests for information that are reasonably related to Defendant s’ compliance with the Decr ee, including without lim itation requests for records and other relevant docum ents pertinent to implementation of the Decree o r to Class Members. Plaintiffs also shall be permitted to review the information provided to th e Monitor. All inform ation provided to the Monito r and/or Plaintiffs pursuant to the Decree sh all be subject to the Protective Order.
19. Compliance. In the event the Monitor finds Defendants not in compliance with the Decree, the Monitor shall p romptly meet and confer with the Parties in an effort to agree on steps necessary to achieve compliance. In th e event that Plaintiffs believe that Defendants are not complying with the terms of the Decree, Plaintiffs shall notify the Monitor and Defendants of Defendants’ potential non-com pliance. The Mon itor then shall rev iew Plaintiffs’ claims of actual or potential non-com pliance and, as th e Monitor deem s appropriate in his or her professional judgment, meet and confer with Defe ndants and Plaintiffs in an effort to agree on steps necessary to achieve com pliance with the Decree. If the Monito r and Parties agree, su ch steps shall be m emorialized in writing, filed with the Court, and incorpor ated into, and becom e enforceable as part of, the Decree. In the even t that the M onitor is unable to reach agreem ent with Defendants and P laintiffs, the Monitor or eith er Party may seek appropriate relief from the Court. In the event that Plaintiffs believe that Defendants are not in compliance with the Decree and that the Monitor has not requ ested appropriate relief from the Court, Plaintiffs m ay seek
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Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 22 of 25
relief from the Court. The M onitor will not communicate with the Court without advance notice to the Parties.
20. Compensation of the Monitor. Defendants shall compensate the Monitor and his or her staff and consultants at their usual and customary rate. Defendants shall reimburse all reasonable expenses of the Monito r and the Mo nitor’s staff, consistent with the gu idelines set forth in the “Governor’s Travel Control Board Travel Guide for State Employees.” Defendants may seek relief from the Court if Defendants be lieve that any of th e Monitor’s charges is inappropriate or unreasonable. X. NAMED PLAINTIFFS
21. Within sixty (60) days of Approval of the Decree, Defendants shall offer each of the Named Plaintiffs the opportunity to receiv e appropriate services in the m ost integrated setting appropriate to his or her needs and wishes , including PSH. Provisi on of services to the Named Plaintiffs pursuant to this paragraph shall not be used to determine any other individual’s eligibility for services under the terms of the Decree. XI. ATTORNEYS’ FEES AND COSTS
22. In full settlem ent of all attorneys’ f ees incurred to date in connection with the litigation, Defendants shall pay $1,990,000.00 to Class C ounsel. In full settlem ent of all out-ofpocket costs and expenses (not to include attorneys’ fees) incu rred to date by Class Counsel, Defendants shall pay to Class Counsel such costs and expenses in curred by Class Counsel through and including the Approval of the Decree and any appeal thereof. Such amounts shall be distributed to Class Counsel in the manner set forth in written instructions provided by Class Counsel. Furthermore, such amounts shall be set forth in a Judgm ent Order to be entered by the Court within fourteen (14) days of Approval of the Decree. Defendants shall com plete and
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Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 23 of 25
submit all paperwork necessary for paym ent of su ch amounts, plus applicable statutory postjudgment interest, within five (5) business days af ter expiration of the tim e to appeal the Decree without the filing of a Notice to Appeal o r after th e issuance of the m andate by the h ighest reviewing court, whichever is later.
XII. MISCELLANEOUS PROVISIONS 23. Approval of the Decree. Approval of the Decree shall be deemed to occur on the date the Court enters the Decree. 24. Costs of Notices. The cost of all notices hereunder or otherwise ordered by the Court shall be borne by Defendants. 25. Signatories. Each undersigned representative of a Defendant to this litigation and the Attorney General for the State of Illinois certifies that he or she is authorized to enter into the terms and conditions of the Decree and to ex ecute and bind legally such Defendant to this document. Each undersigned representative of Plaint iffs certifies that he or she is authorized to enter into the terms and conditions of the Decree and to execute and bind legally the Plaintiffs to this document. SO ORDERED THIS _____ DAY OF ______________, 20____. ________________________________________ United States District Judge
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Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 24 of 25
EACH UNDERSIGNED PARTY enters into this Consent Decree in the m atter of Williams v. Quinn, Case No. 05-4673, pending in the Unite d States District Court for the Northern District of Illinois, Eastern Division. FOR THE PLAINTIFF CLASS: Date: ______________________________ ____________________________________ AS ATTORNEYS FOR PLAINTIFFS: Date: ______________________________ ____________________________________ FOR DEFENDANT, GOVERNOR OF ILLINOIS: Date: ______________________________ ____________________________________ FOR DEFENDANT, SECRETARY OF ILLINOIS DEPARTMENT OF HUMAN SERVICES: Date: ______________________________ ____________________________________ FOR DEFENDANT, DIRECTOR OF DIVISION OF MENTAL HEALTH, ILLINOIS DEPARTMENT OF HUMAN SERVICES: Date: ______________________________ ____________________________________ FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES: Date: ______________________________ ____________________________________
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Case 1:05-cv-04673 Document 238-1 Filed 03/15/10 Page 25 of 25 FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF DEPARTMENT OF PUBLIC HEALTH: Date: ______________________________ ____________________________________ AS ATTORNEY FOR DEFENDANTS: Date: _______________________________ ___________________________________
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 Case 1:05-cv-04673 Document 250 Filed 03/26/10 Page 1 of 7

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

Ethel Williams, et al., Plaintiffs,
vs. Patrick Quinn, et al.,
Defendants.

) ) ) No. 05 C 4673 ) ) Judge Hart ) ) ) )

CLASS MEMBERS’ COMBINED RESPONSE TO THE PARTIES’ JOINT MOTION FOR PRELIMINARY APPROVAL OF CONSENT DECREE AND REQUEST FOR HEARING

Class members Danny McLean and David Twomey, through their legal guardians, respond to the Joint Motion for Preliminary Approval of Consent Decree and Approval of Notice Plan (the “Motion”) and request that the Court set the Motion for hearing, and in support respectfully state as follows:
INTRODUCTION After a five year wait, the parties now seek preliminary approval of their proposed settlement, a settlement that will affect not only the lives of over 4,000 mentally ill residents living in an Institution for Mental Disease (“IMD”), but also their families and surrounding communities. All would agree that the settlement requires careful scrutiny, especially since it has been five years in the making. As the saying goes, “an ounce of prevention is worth a pound of cure.” Applied here, that means the Court will benefit from conducting a hearing before the Court grants preliminary approval to the proposed settlement and before the parties send notices to thousands of class members.

Case 1:05-cv-04673 Document 250 Filed 03/26/10 Page 2 of 7
Unless the parties seek to monopolize the process and insulate the Court from addressing potential problems early on, they should have no principled objection to having their Motion fully briefed and aired before they distribute thousands of notices. In short, educating the Court sooner rather than later is, or should be, a good thing, which will give the Court the opportunity to perhaps fix some of the problems identified below now.
BACKGROUND Danny McLean and David Twomey both live in an IMD. Specifically, McLean (25) lives at Clayton Home in Chicago’s Lincoln Park neighborhood. He has already tried living independently in an apartment in the “community” and almost died as a result. In the IMD he is fully functioning, and as his mother explains, he is an active citizen of the City of Chicago. He has a bus pass and a cell phone and in some respects, he leads a life that parallels a “normal” 25 year-old. He volunteers at a pet shelter (PAWS), marches in protest marches, and goes to the opera and concerts at Millennium Park. He has friends and he goes to parties. People who live with him in Clayton House have jobs (Clayton sends them off with sack lunches each day). Some people finish college while at Clayton, something Danny hopes to do as well. As Danny’s mother explains, he would not be able to do any of these things but for the fact that the IMD monitors his health, dispenses his medications, and provides meals and housekeeping and laundry services. All of that keeps him from reverting to severe mental illness, she explains. Twomey (56) lives at Margaret Manor North in Chicago’s Buena Park neighborhood. He has lived in an IMD for about 15 years. Prior to that he lived with family members. As David’s brother Phil explains: My brother, and many like him, have long periods where they are not rational. The same misfired neurons in the brain that are the basis of the illness, also cause misfired thoughts. A question asked at 1 pm will get a different answer at 3 pm and again at 5 pm. And he could be easily led by the questioner to provide an answer that he thinks is desired, and two hours later claim he never said that and that the original question was different. A real life common example, if you ask David “how are you,” he will get quite angry that you told him to go to hell with
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Case 1:05-cv-04673 Document 250 Filed 03/26/10 Page 3 of 7
Howard Hughes. Even so, he walks in the neighborhood and goes to the Jewel or McDonald’s. He has visitors. He goes to another IMD to visit friends. He has a room and a place to put his belongings and a place to eat. He even takes the bus and audits high level math courses at Loyola University. In short, he has a life, which is much different from being locked up in Chicago-Read Hospital, where he has been many times before stabilizing at Margaret Manor North. Asking him whether he “does not oppose moving to a community based setting” is ludicrous and horribly unaware of the reality of a severe mental illness.
Though both McLean and Twomey are quite different, they share at least one thing: both
already live in vibrant “communities.” Their respective IMDs provide them the care and
services they need. Though each hope to one day live even more independently, for at least the
time being, their IMDs serves them best, as they provide them necessary structure, support, and
staff, including help with their daily medications.
The IMD serves as a bridge between two extremes for the mentally ill: a locked
psychiatric ward on the one extreme and complete independence in an apartment at the other.
Viewed in this light, Illinois’ IMD system is actually progressive in that the IMD provides a
bridge between the two extremes. The IMD is part of the continuum of care. Without the IMD,
Illinois would essentially be a two class system, with the alternatives being only the two extremes.1 Obviously for many people, including McLean and Twomey, a middle ground is
needed. Unfortunately however, upon closer examination, the proposed settlement may threaten the viability of not only McLean’s and Twomey’s IMD, but all IMD’s.2
1 Or, even worse, for some the only other options would be homelessness, prison, or perhaps death. 2 Also relevant, though this case focuses on the roughly 4000 mentally ill individuals who live in an IMD, there are at least 15,000 other mentally ill people in Illinois who live in traditional nursing homes with elderly people, as has been recently well publicized. In fact, there is a parallel class action lawsuit pending in this Court that addresses, at least in part, this issue. Colbert v. Quinn, No. 07-C-4737. As such, the logical question must be asked: if the 15,000 mentally ill people who currently live in traditional nursing homes are discharged, where will they go? Presumably, at least some are not good candidates for independent living, for whom an IMD would seem the logical choice. Finally, to be clear at the outset, McLean and Twomey are not against expanding choice for the mentally ill. They simply want to make sure that their choice – an IMD – is preserved, funded, and offered as a choice for all as well.
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Case 1:05-cv-04673 Document 250 Filed 03/26/10 Page 4 of 7
PRELIMINARY APPROVAL STANDARD
Preliminary approval of a proposed class action settlement is a meaningful step and not
merely a rubber stamp. In fact, the Court has an independent duty to review the settlement since
in most class action cases, there are no objectors – as nobody has received notice – at the
preliminary approval stage. As such, in the normal instance, it is the court – sua sponte –
providing an initial substantive review:
The judge should raise questions at the preliminary hearing and perhaps seek an independent review if there are reservations about the settlement, such as unduly preferential treatment of class representatives or segments of the class, inadequate compensation or harms to the classes, the need for subclasses, or excessive compensation for attorneys. The parties then have an opportunity to resume negotiations in an effort to remove potential obstacles to court approval. Manual for Complex Litigation, Fourth § 21.632 at 321 (2004) (“MCL”). See Reynolds v.
Beneficial Nat’l Bank, 288 F.3d 277, 280 (7th Cir. 2002) (explaining that some courts “have
gone so far as to term the district judge in the settlement phase of a class action suit a fiduciary of
the class” and to impose “the high duty of care that the law requires of fiduciaries.”).
Moreover, “[i]n settlement classes, [as is the case here], it is often prudent to hear not
only from counsel but also from . . . attorneys who represent individual class members but did
not participate in the settlement negotiations.” MCL § 21.632 at 321. Similarly, holding a
hearing on preliminary approval provides the Court an early opportunity to weigh in on the
proposed settlement:
Preliminary review of the proposed settlement affords you an opportunity to express any concerns you may have about the “hot button issues” discussed above. You don’t have the power to decide what must be in a settlement agreement, but you do have the opportunity to state your concerns about provisions – or the absence of provisions – that would make a difference in your decision about whether to approve a proposed settlement. If you have such concerns, consider allowing the parties some time to respond to them by renegotiating the settlement so that the class notice can refer as closely as possible to a final settlement. If you hold back your concerns and reject a settlement at the fairness hearing, the parties will most likely have to send new notice of any
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revised settlement to the class. Consider seeking preliminary input into the fairness, reasonableness, and adequacy of the proposed settlement. Barbara J. Rothstein & Thomas E. Willging, Managing Class Action Litigation: A Pocket Guide for Judges, Federal Judicial Center (2005), at 16-17. In sum, after five years, now is the time for the Court to hear from someone other than the parties as it mulls preliminary approval and perhaps instructs the parties to revise the proposed settlement before they send out thousands of notices.
DISCUSSION This Court should either have a hearing on the Motion before granting preliminary approval or instead simply deny the Motion and direct the parties to address the following issues: Ø The “Implementation Plan” should come now, not later The parties are essentially asking the Court to approve a concept, not a settlement or working plan of any sort. The proposed settlement reads more like an aspirational summary than a detailed settlement or proposal. When it comes to details and implementation, it only provides that within 9 months after the Court approves the settlement, the parties shall develop the “Implementation Plan.” Settlement at § VIII. In particular, the proposed settlement states that the parties “shall create and implement an Implementation Plan to accomplish the obligations and objectives set forth in the Decree.” Id. Amazingly, the Court has no say in the Implementation Plan. Id. Suffice it to say, given that this case is not about a $10 consumer rebate for a coffee maker – but instead about the most important life interests of where this vulnerable population of people will live their lives – the details on implementation should come now, for all to see, not nine months later behind closed doors with no Court oversight. How will the residents get their medications? Who will check in on them? How often? How will their rent be paid? Is there a voucher system? What happens if a resident fails in the
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“community”? Who conducts the evaluations and drafts the “Service Plans” and what are the standards for conducting same? These are all important questions. The proverbial devil is in the details, and the details here should be known and revealed now, not later.
Thus, as a threshold matter, the Court should instruct the parties to develop and reveal the Implementation Plan now so that the Court and the class know how the parties’ minimalist blue print will be implemented and will work in practice.
Ø Placement Should Be Medical Decision As now structured, the proposed settlement employs a standard that effectively removes
the medical component from the decision of where class members will live. Apparently, so long as a class member “does not oppose moving to a Community-Based Setting,” a Service Plan will be developed that moves him or her to the “community.” Settlement at p. 9. Presumably, in application, this lax standard will be satisfied by the evaluator checking a box on a form stating that the class member “does not oppose” the move after being asked a couple generic questions. More precision and standards are required given the life interests at stake.
And perhaps most important, lost in the process is the important component that where the mentally ill live should, at least in part, be a medical decision. That is, the resident’s physician, family members, and other caretakers should be part of the process, yet the proposed settlement seemingly ignores this component, or makes it wholly discretionary.
Ø Funding Details Lacking The proposed settlement also lacks any details on how much implementing the proposed
settlement will cost and how such costs will be funded. Similarly, it is not enough for the proposed settlement to say that for class members such as McLean and Twomey, their choice of an IMD will be respected. The settlement must also back up that choice with a funding
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guarantee, no different than whatever guarantee the settlement will require for the new community services that will be necessary.3
Ø Fees The settlement requires the Defendants – the State – to pay class counsel $2 million in
fees plus an unspecified amount in costs. Such large amounts, especially in the context of a pro bono case, require some support and explanation.
CONCLUSION As the proposed settlement seems to raise as many questions as it answers, it requires further explanation and perhaps revision before the Court is in position preliminarily approve it. WHEREFORE, class members Danny McLean and David Twomey, by and through their guardians, respectfully request that the Court conduct a hearing on the Motion before it preliminarily approves the proposed settlement or, in the alternative, deny the Motion until the parties address the concerns noted above.

Dated: March 26, 2010
Tonya G. Newman (ARDC No. 6286958) Neal, Gerber & Eisenberg LLP Two North LaSalle Street, Suite 1700 Chicago, Illinois 60602-3801 Telephone: (312) 269-8000 Facsimile: (312) 269-1747 tnewman@ngelaw.com

DANNY McLEAN, by and through his Mother and Legal Guardian, Karen Mellow, and DAVID TWOMEY, by and through his Brother and Legal Guardian, Philip Twomey,
By:/s/ Tonya G. Newman One of Their Attorneys

3 On information and belief, the state pays 100% of the cost for the roughly 4,000 residents living in an IMD in Illinois. In contrast, the state pays “only” approximately 38% of the cost for the roughly 15,000 mentally ill individuals who live in traditional nursing homes with the elderly, with the remainder (62%) paid by the federal government. The same cost split applies for those individuals who move to the “community.” As such, an obvious question is raised: are the parties motivated to settle because it is in the best interest of the class or because it is in the best interest of the state’s pocket book? Such questions require scrutiny now.
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 Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 1 of 32

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

______________________________________________________

ETHEL WILLIAMS, JAN WRIGHTSELL, GILBERT PARHAM )

and EDWARD BRANDON, on behalf of themselves and all

)

others similarly situated,

)

)

Plaintiffs.

)

)

No. 05 C 4673

v.

)

Judge Hart

)

PAT QUINN, in his official capacity as

)

Governor of the State of Illinois, MICHELLE R.B. SADDLER, )

in her official capacity as Secretary of the Illinois

)

Department of Human Services, LORRIE RICKMAN- JONES, ) DEMAND FOR

in her official capacity as Director of the Division

) DECLARATORY AND

of Mental Health of the Illinois Department of

) INJUNCTIVE RELIEF

of Human Services, DAMON T. ARNOLD, in his

)

official capacity as Director of the Illinois Department

)

of Public Health, and BARRY S. MARAM, in his

)

official capacity as Director of the Illinois Department

)

of Healthcare and Family Services,

)

)

Defendants.

)

______________________________________________________)

Second Amended Complaint for Relief

Plaintiffs, residents of intermediate care nu rsing homes for people with mental illness,

bring this action ag ainst the above nam ed Illinois state o fficials (collectively, “Defendants”),

who have allowed Plaintiffs to be needlessly segregated and inappropriately w arehoused in

restrictive institutions for people with mental illness and who have failed to ensure that Plaintiffs

are provided with services in the most integrated setting appropriate to their needs—in violation

of their rights under federal statutes and regulations—and allege as follows:

Preliminary Statement

1. Title II of the Am ericans with Disabi lities Act (“ADA”), 42 U.S.C. §§ 12131,

12132, prohibits discrim ination against individuals with disabilities. The United States

Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 2 of 32
Department of Justice has prom ulgated regulations under Title II s tating that “a p ublic entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” See 28 C.F.R. § 35.130(d) (emphasis added). Similarly, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, provides that no person with a disability shall “solely by reason of his or her disability, be excluded fro m participation in, be denied benefits of, or be subjected to discri mination under any program or activity rece iving Federal financial assistance.”
2. In Olmstead v. L.C., 527 U.S. 581 (1999) (“ Olmstead”), the U.S. Suprem e Court held that disability-based discrimination includes placing people with mental illness in “unjustified isolation.”
3. This action is brought to com pel Defendants to comply with these mandates with regard to P laintiffs and those sim ilarly situated. Plaintiffs are currently housed in private, intermediate care nursing homes classified as Institutions for Mental Diseases (“IMDs”), which are designed to warehouse—often for private profit—large numbers of people with m ental illness in a segregated setting.1
4. Defendants have failed to assu re that Plaintiffs, and t hose similarly situated, are placed in a more integrated setting where they could lead more independent and more productive lives within the community.
5. More than five thousand individuals with psychiatric disabilities live in privatelyowned IMDs in Illinois. These IMDs house do zens and often hundreds of people in the sam e building. They needlessly warehouse large numb ers of people who could be served at the sam e
1 Institutions for Mental Diseases (“IMDs”) are defined by Title XIX of the Social Security Act, which prohibits federal Medicaid funding for IMD residents between 22 and 64 years old. See infra ¶ 15.
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or less cost to the S tate in far more integrated settings in their comm unities. The nursing hom e structure of the IMDs deprives residents of countless liberties and choices most citizens take for granted, such as the opportunity to read a book in privat e, to choose what to have for dinner, to decide when to wake up in the m orning, and to come and go when desired. The IMDs range from cold and institutional to chaotic, unclean and unsafe. Few provide adequate staffing, psychiatric treatment, therapeutic activities or social rehabilitati on. People frequently stay in IMDs only because th ey have nowhere else to go, a result of the Defendants’ lo ngstanding neglect of its basic obligations under the ADA.
6. Plaintiffs, and those sim ilarly situated, continue to languish in the segregated setting of the IMDs, despite the f act that equally affordable and m ore integrated residential settings exist and/or could be made availabl e. Such residential settings would m ore appropriately meet Plaintiffs’ needs.
7. Defendants have violated Title II of the ADA and Section 504 of the Rehabilitation Act by failing to assu re that their services are adm inistered to Plain tiffs in the most integrated setting appropriate to thei r needs. Instead, they have is olated and institutionalized Plaintiffs, and those similarly situated, in IMDs.
Nature and Statutory Basis of Action 8. This action includes claim s for violati on of Title II of the ADA, 42 U.S.C. §§ 12131, 12132, which prohibits state and local governm ent entities from discriminating against individuals with disabilities. 9. This action also includes claim s for violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, which prohibits recipients of federal funding from discrim inating against individuals with disabilities.
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Parties 10. Named Plaintiff Ethel Williams has been a resident of an Illinois IMD (Monroe Pavilion) for approxim ately thirteen years. Ms. Williams has been diagnosed with bipolar disorder. She i s alert, active, and attends an occupational day program five days a week. Ms. Williams maintains close contact with her childr en and grandchildre n. She also spends her weekends with her brother and sister-in-law, where she takes her m edication independent of supervision. 11. Named Plaintiff Jan W rightsell has been a resident of an Illinois IMD (Monroe Pavilion) since early 2 002. Ms. W rightsell has been diagnosed with schizophrenia and has a history of m ajor recurrent depression. She is al ert and active; in fact, she currently cooks for staff and fellow m embers of an occupational day program, which she attends five days a week. Ms. Wrightsell maintains close c ontact with her family, and has substantial prior work experience as a sales clerk. She is well-educated and enjoys r eading, writing short stories and composing poetry. Interacting with animals and pets is one of her favorite leisure activities. 12. Named Plaintiff Gilbert Parham has been a resident of an Illinois IMD (Columbus Manor) for approximately ten years. Mr. Parham has been diagnosed w ith schizophrenia. Mr. Parham is alert and active. He currently atte nds a day program as well as a Bible study group. He maintains close contacts with f amily and f riends outside of the IMD, and he spends tim e independently in the community. Mr. Parham has lived in his own apartm ent and has held various jobs in the past, including doing janitorial work, working on a print machine, and bussing tables at a restaurant. 13. Named Plaintiff Edward Brandon has been a resident of an Illinois IMD ( Wilson Care) for approximately two years. Mr. Brandon has been diagnos ed with schizophrenia. Mr.
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Brandon is alert and active. Mr. Brandon current ly works five days a week at the Anixter Center, his day program , where he buses tabl es. He m aintains close contact with his grandmother and a cousin.
14. Plaintiffs, and those sim ilarly situated, are Illinois resident s who have m ental illnesses that substantially limit their ability to perf orm major life activities. They also have a record of such mental illnesses, and are regarded by Defendants as having such mental illnesses. They are therefore individuals with disabilities for purposes of the ADA and the Rehabilitation Act. 42 U.S.C. § 12102, 29 U.S.C. § 705(20).
15. Plaintiffs and those similarly situated ar e currently housed in interm ediate care nursing homes classified by the Illinois Depart ment of Healthcare and Fam ily Services (“DHFS”) (formerly the Illinois Department of Pub lic Aid) as “IMDs.” This classif ication is based on th e fact that these a re institutions with more than sixteen beds tha t are primarily engaged in providing diagnosis, treat ment or care of persons with mental disabilities. 42 U.S.C. § 1396d(i). Federal law prohibits Defendant s from receiv ing any federal Medicaid reimbursement for the care of IMD residen ts, aged 22 to 64, and Defendan ts must therefore pay for their IMD placements so lely out of state funds. Virtu ally all IMD residents receiv e Supplemental Security Income (“SSI”). SSI recipients must contribute all but thirty dollars ($30) of their monthly SSI checks directly to the IM D operators. DHFS funds the remaining expenses associated with Plaintiffs’ shelter and board at the IMD.
16. Defendant Pat Quinn is the Governor of the State of Illinois, a public entity covered by Title II of the ADA. 42 U.S.C. § 12131(1). Governor Quinn is ultimately responsible for ensuring that Illinois operates its servi ce systems in confor mity with the ADA and the Rehabilitation Act. 20 Ill. Comp. Stat. 2407/20(c). He is sued in his official capacity.
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17. Defendant Michelle R.B. Saddler is the Secretary of the Illinois Departm ent of Human Services (“DHS”), the st ate agency responsible for a ssisting Illinois residents in achieving self-sufficiency, independence and health to the m aximum extent possible by providing integrated family-oriented services, promoting prevention and establishing measurable outcomes in partne rship with communities. D HS advertises itself as Illinois ’ largest agency, employing more than 15,000 people. It has an annua l budget of nearly five billion dollars. DHS is a public entity covered by Title II of the ADA. 42 U.S.C. § 12131(1). DHS is the recip ient of federal funds subject to the requi rements of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Michelle R.B. Saddler is responsible for the operation and adm inistration of DHS and is ultimately responsible for ensuring that DHS provi des services in conformity with the ADA and the Rehabilitation Act. 20 Ill. Comp. Stat. 2407/20(c). She is being sued in her official capacity.
18. Defendant Lorrie Rickman-Jones is the Director of the Division of Mental Health (“DMH”), the division of DHS responsible fo r helping to m aximize community supports and develop skills f or persons with ser ious mental illness. DMH is resp onsible for administering mental health screening and assessm ent of indivi duals with m ental disabilities considered for placement in nursing h omes. DMH is responsible for the placement of individuals with mental illness in an appropriate facility or program. DMH is the recipient of federal funds subject to the requirements of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. DMH is a public en tity subject to the requirements of Title II of the ADA, 42 U.S.C. § 12131. Dr. Jones is responsible for the operation and administration of DMH and for ensuring that DMH, as the division of DHS responsible for providing residentia l and m ental health services to people with m ental illness, operates in confor mity with the ADA and the Rehabilitation Act. Sh e is being sued in her official capacity.
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Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 7 of 32
19. Defendant Damon T. Arnold, M. D., is the Directo r of the Illinois Department of Public Health (“DPH”), the state agency res ponsible for licensing, regu lating and inspecting all nursing homes, including IMDs, in the state of Illin ois. DPH is respons ible for certifying these facilities for participation in fe deral payment reimbursement programs. DPH is also responsible for ensuring that person s with m ental illness are appropriately screened and placed in nursing homes, and receiv e discharge plan ning. 77 Ill Adm in. Code §§300.4010, 300.4060; 210 Ill. Comp. Stat. 45/3-202.2. DPH is a public entity covered by T itle II of the ADA. 42 U.S.C. § 12131(1). DPH is the recipient of federal funds subject to the requirements of Section 504 of the Rehabilitation Act, 29 U. S.C. § 794. DPH’s re gulations permit the placem ent of an individual with m ental illness in a nursing h ome, including an IMD, “f or a m edical reason directly related to the person’s diagnosis o f serious m ental illness, such as m edication management.” 77 Ill. Adm in. Code § 300.4000(c). Dr. Arnold is being su ed in his official capacity.
20. Defendant Barry S. Maram is the Dire ctor of the Illinois Departm ent of Healthcare and Family Services (“DHFS”), the state agency responsible for providing health care coverage for the citizens of Illinois and for administering medical assistance programs and other fiscal programs. DHFS funds IM Ds for resident services, incl uding assessment, care planning, discharge planning, and treatm ent. 89 Ill. Adm in. Code §145.20, s ubchapter d; 305 Ill. Comp. Stat. 5/5-5.5. DHFS is a public entity covere d by Title II of the ADA. 42 U.S.C. § 12131(1). DHFS is the recipient of federa l funds subject to the requirem ents of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Barry S. Maram is responsible for operation and administration of DHFS and for ensuring that DHFS operates in conform ity with the ADA an d the Rehabilitation Act. He is being sued in his official capacity.
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Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 8 of 32
Class Action Allegations 21. The named Plaintiffs bring this action as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. 22. The class o f individuals that the n amed Plaintiffs seek to repres ent consist o f those persons in Illinois who (1 ) have a m ental illness; (2) with appropriate supports and services, could live in the community; and (3) are institutionalized in privately-owned IMDs. 23. The class is so num erous that joinder of all Plaintiffs is impracticable. The exact number of individuals in the cl ass is no t known to Plain tiffs, but is believed to be in th e thousands. 24. The claims of the nam ed Plaintiffs are common to tho se of the clas s and raise common issues of fact and law, including, among others: whether Defendants adequately determine whether class m embers are eligib le for community services; whether Defendants adequately inform IMD residents of their right to community services; whether Defendants are providing services to m entally ill individuals in the m ost integrated setting appropriate to their needs; whether Defendants have a com prehensive, effectively working plan f or achieving that goal; whether Defendants efficiently administer a waiting list for community services that allows individuals to m ove out of IMDs and into m ore integrated settings at a reasonab le pace; and whether Defendants violate the Am ericans with Disabilities Act an d Section 504 of the Rehabilitation Act by failing to provide community-based services to qualified individuals. 25. Plaintiffs’ claims that Defe ndants have failed to adm inister the s tate’s mental health programs so as to provide services in the most integrated setting appropriate to their needs are typical of the claims of the class.
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26. Plaintiffs will fairly and adequately protect the interests of the class because they suffer from deprivations identical to those of the class members and have been den ied the same federal rights that they s eek to enforce on behalf of the other class m embers, many of whom are unable to pursue claims on their own behalf as a result of their di sabilities, their limited financial resources, and/or the actions of the Defendants to deprive them of their rights. Plaintiffs’ interests in obtain ing injunctive relief for the vi olations of their legal rights and privileges are consistent with and not antagonis tic to those of any person with in the class. Furtherm ore, Plaintiffs’ counsel has extensive experience in the areas of class action litigation and civil rights laws concerning people with disabilities.
27. Defendants have acted or refused to act on grounds generally applicable to all members of the class by unnecessarily segregating class members. For exam ple, Defendants have failed to inform class members of their right to community services, failed to provide them with services in th e most integrated setting ap propriate to their ne eds, and failed to provide services with reasonable promptness. Therefore, declaratory and injunctive relief with respect to the entire class is appropriate.
Jurisdiction and Venue 28. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 for civil actions arising under the laws of the United States and 28 U.S.C. § 1343 for actions arising under laws providing for the protection of civil rights. 29. Venue in the Northern District of Illinois is proper under 28 U.S.C. § 1391, as it is the judicial district in which a substantial portion of the events or omissions giving rise to these claims occurred. 30. Declaratory and injunctive relief are sought under 28 U.S.C. § 2201 et seq.
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Background 31. Beginning in the late 1960s the State of Illinois began releasing thousands of individuals with mental illness from its psychiatric institutions. As this “de-ins titutionalization” progressed, however, the state fa iled to create and develop adequate community housing and community services for large num bers of “de-institutionalized” individuals. Ins tead, the state funneled funds to nursing hom e operators who prof ited from the large num bers of mentally ill individuals recently de-institutionalized. Throughout the 1970s and 1980s, nu rsing home operators opened up large facilities (“IMDs”) designed — often for profit — to house these individuals, oftentimes in setti ngs nearly as seg regated and restrictive as the state psychiatric institutions they had just ex ited. Today, in dividuals with mental illness continue to be discharged from psychiatric hospitals into these re strictive facilities, where they con tinue to be needlessly segregated from society-at-large. This segregation occurs under the supervision of state agencies which, rather than helping re -integrate these ind ividuals back into the ir communities by funding community-based p rogramming, endorse and fund the IMDs. These IMDs do not prepare their residents to live independently and deny residents privacy and control over their lives. In m any cases, the choice f or persons with mental illness is between residence in an IMD—and compliance with its restrictive and controlling environment—or homelessness. 32. Some fortunate individuals are discharged from psychiatric hospitals and placed in residential programs that are designed to he lp them achieve independence and m anage their illness. Many others, however, like Plaintiffs and those similarly situated, are instead discharged to nursing homes, many of which are IMDs. In most Illinois nursing homes designated as IMDs, virtually all IMD residents have been diagnosed with mental illness.
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33. Federal law prohibits Medicaid reimbursement to any individual who is older than 21 years of age and under 65 years of age and w ho is a resident of an IMD ( 42 U.S.C. § 1396d(a)(1), (2), (4)). Plain tiffs and class m embers who receive SSI ar e required to contribute all but thirty dollars ($30) of their monthly SSI check directly to the IMD operators to be used for their shelter and board. DH FS funds the rem aining expenses associated with Plaintiffs’ support and housing at the IMD.
34. Thus, the State of Illinois is not reimbursed by the federal government for serving residents between the ages of 22 and 64 in IMDs. However, the State of Illinois would receive significant federal reimbursement for serving thes e same individuals in the community. If the current system were altered, the savings to the State of Illinois would be immense.
35. Defendants have failed to inte grate the state’s m ental health system by failing to develop and fund community altern atives. Many IMD residents co uld be served in comm unityintegrated settings; however, as a p ractical matter, the cho ice most residents face is either an IMD or hom elessness. Because most of th eir money — includin g money earned by tho se working at jobs outside the IMDs — goes into the IMD operators’ pockets, IMD residents have little to no hope to sav e enough m oney to m ove to any other place. Mo st residents of IMDs remain there for years, because they are provid ed few opportunities to obtain services in more integrated settings and because th ey are provided few rehabilitation services to en able them to become more independent within the surrounding community.
36. Instead of serving individuals with m ental illness in m ore integrated settings, Defendants continue to fund and operate a mental health system that segregates these individuals and, in many cases, restricts their access to the outside world.
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Facts 37. Illinois has historically provided, and currently provides, inpatient hospitalization to individuals with mental illness in public and private psychiatric hospitals. 38. Some individuals discharged from psychiatric hospitals return home to family or friends. Others are discharged to various com munity residential programs for individuals with mental illness. 39. In many of these residential program s, individuals live in their own apartm ents with greater privacy and with a greater choice of activities than now found in t he IMDs. Individuals in community programs sometimes live in integrated buildings with individuals who do not have m ental illnesses. They usually ar e able to receive and entertain v isitors and communicate by phone in privacy. Individuals in community programs go to stores to shop for food and other necessities. Most of these individuals may go to doctors of their choice, as well as engage in social activities of their choice. They tend to these and other daily needs to the degree they are able, with supportive services provided by case managers. These programs are designed to foster independence and to enab le individuals to becom e as self-sufficient as possible. Such programs are generally known as “supported housing.” Unlike IMDs, they are not institutional in character. 40. When state agencies fail to develop or fund community services, individuals with serious mental illness are discharged to nursing homes, including IMDs.
Institutions for Mental Diseases (“IMDs”) 41. The Named Plaintiffs and class m embers are currently hou sed in interm ediatecare nursing homes classified as “IMDs.” Most Illin ois IMDs — of which there ar e approximately twenty seven — house over one hundred residents each. Virtually all IMD
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residents have been diagnosed with mental illness. Common diagnoses include bipo lar disorder,

schizophrenia and major recurrent depression.

42. There is insufficient capacity and long waiting periods for adm

ission into

community residential program s, including sup ported housing, so people with serious m ental

illness are inappropriately discharged from psychiatric hospitals to I MDs. The decis ion to

discharge individuals such as Pl aintiffs and those sim ilarly situated to an IMD, as opposed to

supported housing, is not based on any relevant tr eatment criteria or diagnosis, but simply on the

lack of availability of appropriate alternatives.

43. Once individuals, such as Plaintiffs, ar e placed in an IMD, opportunities for

discharge to supported housing are rare.

44. Most IMDs provide only beds, m eals, and spartan rehabilitative services. For

Plaintiffs and virtually all clas s members, the services provided by the IMDs could be better

provided in a more integrated, community residential program.

45. IMDs place many limitations on residents’ autonomy and privacy. Residents are

subjected to a highly regim ented lifestyle in which most daily activiti es are conducted in one

place in th e company of large num bers of other in dividuals with m ental illness, and which is

characterized by restric tive rules and policies. In contrast, the m ore integrated community

residential programs for individua ls with m ental illness afford residents m uch more choice,

freedom and privacy, as well as th e opportunity to m aintain family relationships and to interact

with and form friendships with people who do not have mental illness.

46. Meals at IMDs are provided with littl e choice. T ypically, well over one hundred

individuals share access to a si ngle common area. Residents must line up for m eals and for

medication, which is only dispensed at specific times in the common areas.

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47. IMDs provide very few recreatio nal or other activities geared toward help ing residents gain independence. Residents spend hours watching television in a common room or smoking cigarettes in a sm oking room during the winter or outside on th e sidewalk—beside the facility—when the weather allows. Residents w ander aimlessly in and out of the common room and smoking room with nothing to do for the major ity of the day. Ther e are some activities on weekday afternoons that purportedly develop residents’ practical skills; however, these activities are minimal, if not alto gether ineffective. Some residents are able to attend day program s outside the facility, where they may learn skills to help them become more independent and more productive members of the comm unity. However, at the end of the day, these residents m ust return to their IMDs.
48. IMD residents have almost no control ove r their person al space. Most IMD residents share a bedroom and bathroom with several other people. Reside nts generally have no control over when or by whom their rooms are cleaned or who has access to their rooms.
49. IMD residents have virtually no privac y. Payphones are located only in common areas, where anyone can overhear their conversati on. Typically, IMD residents can receive calls only through the IMD switchboard, and are usually paged over a loudspeaker to come to a phone that is not in a private space.
50. The lack of privacy m akes it very difficult for residents to exerc ise their rights. Since it is difficult for residents to m ake phone calls without IMD staff knowing they are doing so, residents m ay be reluctant to call advocates wh en they have a problem . This serves as a further disincentive to residents exercising any kind of independence.
51. Residents have little contact with members of the community outside the facility. Outsiders’ visits are generally limited and most visitors may not be received in privacy.
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Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 15 of 32
52. Typically, no food, liquids or m edicines can be brought into th e facility without permission of the IMD Administrator or nurse in charge.
53. The depersonalization and lack of m ental stimulation in the f acility erodes residents’ ability to live independently.
54. Moreover, IMDs have policies and practi ces that prevent residents from m oving out of the institution. Such policies inhibit the ability of residents to obtain appropriate services and supports that will provide them an opportunity to lead more fulfilling and m ore independent lives outside the IM D. Discharge planning is not regularly conducted. Furthermore, residents receive virtually no education or information about the limited alternatives to nursing homes.
55. IMD residents are typically not given a choice of which doctors and pharm acies to use. Residents’ doctors and pharmacies are chosen by the facility.
56. IMD operators usually serve as the repres entative payee for residents and thus control the residents’ finances. As the representative payees, the operators receive residents’ Supplemental Security Incom e (“SSI”) checks di rectly from the governm ent and distribute to residents the small personal needs allowance the residents are pe rmitted to re tain from these checks. This “personal needs allowance” is usually $30.00 a month, or about $1.00 per day. The remaining amount is retained for use by the IMD. This renders residents completely dependent upon the IMD for all basic needs.
57. IMDs provide little or no rehabilitative treatment designed to prom ote recovery, independence and integration into the community. Some IMD residents are able to participate in work programs, where they hold “jobs” inside the facility; however, those who hold these positions are only allowed to work for short periods of time each day.
15

Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 16 of 32
58. IMDs lack a sufficient n umber of trained staff necessary to provide adequate care to individuals with m ental illness and to pr ovide them with the opportunities to lead happy, independent, and productive lives.
59. Many IMD residents are subj ect to Behavior Managem ent Programs (“BMPs”). These BMPs are similar to those behavior management systems used in psychiatric hospitals. A resident’s freedom to leave the facility is rest ricted based on the staff’s assessm ent of how the individual complies with institution al rules. In short, residents m ust meet the behavioral standards set by the institution in order to obtain greater freedom. Residents who fail to perform required activities or who violate the rules are punished by having their liberties restricted.
NAMED PLAINTIFFS Ethel Williams
60. Plaintiff Ethel Williams has been a resident of Monroe for approximately thirteen years, or since she was discharged from the John J. Madden Mental Health C enter. Ms. Williams maintains close contact with her children and grandchildren. In addition, Ms. Williams spends her weekends with her brother and sister -in-law; she takes her medication independently while staying with her family. Ms. Williams is alert, active, and attends a day program five days a week. In the past, Ms. Williams has worked within the retail industry.
61. Ms. Williams wishes to leave Monroe and to live in a more integrated community setting, in order to accelerate her rehabilitation and to lead a more indep endent life. Professionals familiar with Ms. Williams’s circumstances have indicated that she is ready to live in the community and that continued institutionalization is unnecessary.
62. Defendants, however, have f ailed to p rovide Ms. W illiams with comm unity services. Defendants have also failed to provide meaningful, adequate, and periodic assessments of Ms. W illiams’s potential for placement in the m ost integrated community setting availab le.
16

Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 17 of 32
Ms. Williams has repeated ly told the staf f of Monroe that she wishes to leav e, and f acility records indicate her desire to live more indepe ndently. Her m edical records and progress notes indicate that she is a good ca ndidate for placem ent in an integrated comm unity setting. However, Defendants fail to ensure that Ms. Williams receives adequate discharge planning and fail to provide opportunities for her to lead a more independent and more productive life.
63. Monroe has a Behavior Management Program that has four levels. Ms. Williams entered Monroe at “Le vel One”; however, she has complied with institutional rules to the poin t where she has been “awarded” a “Level Four” status. As a “Level Four ” resident, Ms. Williams is permitted to be outside Monroe f or most of the day in order to, f or example, visit f amily members.
64. Ms. Williams has repeatedly expressed an interest in returning to the community. She does not require nursing care in an institutional setting. She could liv e in the community i f she were provided with the types of hom e and community-based supports and services currently provided in Illinois. However, Defendants have failed to ensure adequate discharge planning for Ms. Williams, even though she has demonstrated skills (e.g., working in the retail ind ustry) that would enable her to succeed in more independent living.
65. Ms. Williams has no significant physical h ealth needs being add ressed by Monroe.
Jan Wrightsell 66. Plaintiff Jan Wrightsell, has been a resident of Monroe since early 2002, when she was discharged from the psychiatric unit of Ch icago’s St. Joseph’s H ospital. Ms. W rightsell attends a day program five days a week, and is responsible for cooking lunch for fellow residents and staff. She has been diagnosed with schi zophrenia and has a hist ory of m ajor recurrent depression. Ms. W rightsell maintains close cont act with her fam ily, and has substantial prior
17

Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 18 of 32
work experience as a sales clerk. She is college-educated, composes poetry and loves to care for animals.
67. Ms. Wrightsell wishes to leav e Monroe in order to live in a m ore integrated community setting, in order to acc elerate her rehabilitation and to lead a m ore independent life. Professionals familiar with her circumstances, and with whom Ms. Wrightsell has interacted in her day program s, have indicated that she is rea dy to live in a less re strictive program in the community and that continued institutionalization is unnecessary.
68. Defendants, however, have failed to pr ovide Ms. W rightsell with c ommunity services. Defendants have provided only form ulaic assessments of Ms. Wrightsell that lack any individual plan or review. Ms. Wrightsell has repeatedly told the staff of Monroe that she wishes to leave; however, facility records fail to re flect her desire to liv e more independently. Defendants fail to ensure that Ms. W rightsell receives adequate disch arge planning and fail to provide opportunities for her to lead a m ore independent and m ore productive life. Instead, Defendants have consigned her to an institution th at refuses to help her progress toward social independence.
69. Ms. Wrightsell entered Monroe at “Level One”; however, she has com plied with institutional rules to the point where she has been “awarded” a “Level Three” status. As a “Level Three” resident, Ms. W rightsell is only permitted to leave Monroe on he r own f or between two and six hours per day, depending on th e length of the pass assigned to her at any given time. Although she has fulfilled “Level F our” requirements (e.g., successfully graduating from several day programs), Monroe refuses to grant her “Level Four” privileges.
70. Ms. Wrightsell has rep eatedly petitioned Monroe to m ove to “Level Four.” However, her petitions have b een regularly denied by Monroe staff with neither sound nor
18

Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 19 of 32
written reason. In fact, Ms. Wrightsell’s privileges have often been suspended based on arbitrary reasons (e.g., bringing her winter coat to the cafeteria).
71. Ms. Wrightsell has repeated ly expressed an interest in retu rning to the community. She does not require nursing care in an institutional setting. She could live in the community if she were provided w ith the type s of hom e and community-based supports and services currently provided in Illinois. These supports and serv ices provided in the community would cost the same or less than the amount currently spent on Ms. Wrightsell’s care. However, Defendants fail to ensure adequate discharge pl anning for Ms. W rightsell, even though she has demonstrated skills ( e.g., working as a cook in the day pr ogram she now attends) that would enable her to succeed in m ore independent livi ng. Ms. Wrightsell has no sign ificant physical health needs being addressed by Monroe.
Gilbert Parham 72. Plaintiff Gilbert Parham is 51 years ol d and has been a resi dent of Colum bus Manor for approxim ately ten y ears. He wa s placed in Colum bus Manor after a hospital discharge. Mr. Parham has been diagnosed with sc hizophrenia. Mr. Parham is alert and active. He currently attends a day program as well as a Bible study group. He m aintains close contacts with family and friends outside of the IMD, takes public transportation on his own, and spends time independently in the community. 73. Mr. Parham wishes to leave Columbus Ma nor and to live in a m ore integrated community setting, in order to accelerate his reh abilitation and to lead a m ore independent life. Professionals familiar with Mr. Parham’s circumstances have indicated that he is ready to live in the community and th at continued institutionalization is unn ecessary. Prior to liv ing at Columbus Manor, Mr. Parham lived in his own apartment and held various jobs, including doing janitorial work, working on a print machine, and bussing tables at a restaurant. He is able to take
19

Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 20 of 32
care of his own apartment and cook for himself, as he had done prior to his institutionalization at Columbus Manor.
74. Defendants, however, have failed to provide Mr. Parham with community services. Defendants have also failed to provide meaningful, adequate, and periodic assessments of Mr. Parham’s potential for placement in the most integrated community setting available. Mr. Parham has repeatedly told the s taff of Columbus Manor that he wishes to leave, but staff have not assisted him to make that happen. His medical records and progress notes indicate that he is a good candidate for placement in an integrated community setting. However, Defendants fail to ensure that Mr. Parham receives adequate disc harge planning and fail to provide opportunities for him to lead a more independent and more productive life.
75. Mr. Parham has expressed an interest in returning to the community. He does not require nursing care in an institutional setting. He could live in the comm unity if he wer e provided with the types of hom e and community-based supports and services currently provided in Illinois. However, Defendants have failed to ensure adequate discharge planning for Mr. Parham, even though he has demonstrated sk ills that would enable him to succeed in m ore independent living.
76. Mr. Parham has no significant physical health needs being addressed by Columbus Manor.
Edward Brandon 77. Plaintiff Edward Brandon is 25 years old a nd has been a resident of W ilson Care for approximately two years. Mr. Brandon has been diagnosed with schizophrenia. He has formerly held several jobs in retail stor es; currently, Mr. Brandon works, Monday through Friday, at the Anixter Center where he buses tables. He m aintains close contact with his grandmother and cousins.
20

Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 21 of 32

78. Mr. Brandon wishes to leave W ilson Care and to live in a m ore integrated

community setting, in order to accelerate his reh abilitation and to lead a m ore independent life.

Professionals familiar with Mr. Brandon’s circu mstances have indicated that—with appropriate

supports and services—he is ready to live in the comm

unity and that continued

institutionalization is unnecessary. Every day he is subjected to second-hand smoke, as he has

no control over whether his roommates can smoke in his room.

79. Defendants, however, have failed to provide Mr. Brandon with community

services. Defendants have also failed to provide meaningful, adequate, and periodic assessments

of Mr. Brandon’s potential for placem ent in the m ost integrated comm unity setting available.

Facility records indicate his desire to live more independently. His medical records and progress

notes indicate that he is a good can didate for p lacement in an integrated community setting.

However, Defendants fail to ensu re that Mr. Brandon receives adequate discharge planning and

fail to provide opportunities for him to lead a more independent and more productive life.

80. Mr. Brandon has expressed an interest in r eturning to the community. He does

not require nursing care in an in stitutional setting. He could liv e in the community if he were

provided with the types of hom e and community-based supports and services currently provided

in Illinois. However, Defendants have failed to ensure adequate discharge planning for Mr.

Brandon, even though he has dem onstrated skills ( e.g., working at Anixter Center) that would

enable him to succeed in more independent living.

81. Mr. Brandon has no significant physical h ealth needs being addressed by W ilson

Care.

21

Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 22 of 32
The Roles of Defendants 82. Defendants are all charged with adm inistering and/or overs eeing long-term care services for individuals with mental illness in both institutional and community settings. 83. In the more than six years since Olmst ead was decided, Defendants have failed to develop a comprehensive and effective working plan for identifying people with mental illness unnecessarily institutionalized in nursing ho mes and IMDs and movi ng them into m ore integrated settings. The Defendants are responsible for the operation and administration of their respective agencies and are ultim ately responsible for ensuring that their agencies provide services in conformity with the ADA and the Rehabilitation Act. 20 Ill. Comp. Stat. 2407/20(c). However, no viable working plan has been produced nor have Defendants evidenced a commitment to action which would show “ongoing progress toward community placem ent.” See Penn. P.P.A., Inc. v. Penn. Dept. of Public Welfare, 422 F.3d 151, 159 (3rd Cir. 2005). 84. DHS’ duties also includ e monitoring the care given by nursing hom es, including IMDs, and providing input into the licensing process on s uch matters as staffing and program content. 85. DHS is responsible for the screening of i ndividuals such as Plaintiffs a nd those similarly situated, who are being considered for admission to nursing facilities and who are age s 18 through 59, and for individuals aged 60 and over who have a severe mental illness, in order to determine whether nursing facility care is appropriate. 77 Ill. Adm. Code § 300.615. 86. DPH, in conjunction with DHS, is requi red to develop m inimum standards for licensing facilities for people with mental illness, including IMDs. 210 Ill. Com p. Stat. 45/3-203.
22

Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 23 of 32
87. DPH is also responsible for regulati ng and inspecting all nursing facilities, including IMDs, in Illinois. DPH is required to develop a curriculum for training nursing assistants and habilitation aides. 210 Ill. Comp. Stat. 45/3-206.
88. DPH is responsible for prom ulgating rules governing the provision of services by nursing facilities to res idents who have a serious mental illness, including ass essment, care planning, treatment, and discharge planning. 210 Ill. Comp. Stat. 45/3-202.2.
89. DHFS classifies nursing hom es as IMDs and adm inisters funding to IMDs as appropriate. 89 Ill. Adm. Code §§145.20, 145.40, 140.500. DHFS is required to verify the need for group care for individuals with severe m ental illness in accordance with 89 Ill. Adm. Code § 140.642. DHFS is also required to approve the placement in the nurs ing facility based upon a determination that a need for a nursing level of care exists and that the nursing facility m eets state law requirements. DHFS author izes payment to the nursing faci lity. 89 Ill. A dm. Code § 140.510.
90. Defendants do not consider the needs of Plaintiffs or other similarly situated IMD residents for m ore integrated housing when they plan for developm ent of integrated supported housing programs.
91. Despite the fact that they are respo nsible for ensuring appropriate placem ent of individuals with mental illness and for establishing appropriate discharge procedures, Defendants have not provided Plaintiffs, and those similarly situated, with information that will enable them to seek services in a more integrated setting or to l ead more independent and m ore productive lives in society.
23

Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 24 of 32
92. In violation of their stat utory duties, Defendants are administering their programs and providing services in a m anner that supports and encourages the segregation of individuals with mental illness, by inappropriately relying on IMDs.
93. Defendants have developed and funded l ong-term residential program s that enable individuals to receive services in settings far more integrated than nursing homes.
94. However, Defendants have failed to devel op and fund sufficient capacity in these residential programs, forcing into nursing hom es thousands of individuals with m ental illness who could, and would, prefer to be served in more integrated settings.
95. Defendants have policies, rules and practi ces that discou rage the placem ent of individuals with m ental illness in integrated re sidential settings and, instead, perp etuate the current system of IMDs. Changing these po licies, rules and practices would not be a fundamental alteration under Defendants’ service sy stem for people with psyc hiatric disabilities. Services can be provided in a m ore integrated se tting at a cost equ ivalent to or le ss than the average cost of providin g services to a nurs ing home or IMD resident . Moreover, Defendants already provide the services needed by Plaintiffs and those similarly situated to other people with mental illness in the community.
96. Defendants have not infor med Plaintiffs and class m embers of their right to community services. N or have Def endants evaluated Plaintiffs and tho se similarly situated to find the m ost integrated setting app ropriate to th eir needs. Defendants ha ve arbitrarily denied community services to those Plaintiffs and class members capable of living more independently. Defendants have no plan for achieving the goal of having sufficient services in the community.
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Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 25 of 32
Count I Violation of the Americans With Disabilities Act Mandate To Administer Services And
Programs In The Most Integrated Setting 97. Plaintiffs and class members repeat and reallege paragraphs 1-96 above. 98. Plaintiffs and those sim ilarly situated are individuals with serious m ental illnesses. Each Plaintiff and class member has a mental impairment that substantially limits one or more major life activity including, but not lim ited to, self care and interaction with others. Plaintiffs and those s imilarly situated also ha ve a reco rd of such m ental illnesses, and are regarded by Defendants as having such mental illnesses. 99. Plaintiffs and class m embers are residen ts of facilities classified as IMDs, and each is qualified to participate in a more inte grated community residential program that would meet their mental health needs. Plaintiffs and class members are, therefore, qualified individuals with disabilities within the meaning of 42 U.S.C. § 12131(2). 100. Defendants Quinn, Saddler, Rickm an-Jones, Arnold and Maram are responsible for the operation of public entities covered by Title II of the ADA. 42 U.S.C. §§ 12131(1)(A) and (B). 101. The United States Departm ent of Justice has promulgated regulations under Title II of the A DA stating that “a pub lic entity shall administer services, programs and activities in the most integrated setting appropriate to the n eeds of qualified individuals with disabilities.” See 28 C.F.R. § 35.130(d). 102. Defendants are obligated under the ADA to administer Illinois program s in a manner that supports the availabil ity of services and program s in the most integrated setting for individuals with disabilities.
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Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 26 of 32
103. Serving Plaintiffs and class m embers in a more integ rated setting can be reasonably accomplished.
104. Defendants have failed to m eet this oblig ation. Defendants instead require that Plaintiffs and class m embers, in order to receive mental health care, live segregated in IMDs, even though these facilities are not the most integrated settings appropriate to their needs.
Count II Violation Of The Americans With Disabilities Act’s Prohibition On Using Methods Of
Administration That Subject Plaintiffs To Discrimination 105. Plaintiffs and class members repeat and reallege paragraphs 1-96 above. 106. Plaintiffs and class m embers are reside nts of IMDs and each is qualified to participate in a m ore integrated community residential program that meets th eir mental health needs. 107. Title II of the ADA, 42 U.S.C. §§ 12131, 12132, prohibits Defendants from discriminating against individuals with disabilities. 108. Regulations implementing Title II of the ADA, 28 C.F.R. § 35.130(b)(3), provide that “a public entity may not, directly or thro ugh contractual or other arrangem ents, utilize criteria or other m ethods of ad ministration: (i) That have th e effect of subjecting qualified individuals with disabilities to di scrimination on the basis of disabi lity; [or] (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities . . . .” 109. Defendants, however, utilize m ethods of ad ministration that have the effect of subjecting Plaintiffs and those similarly situated to discrimination. Defendants continue to utilize methods of adm inistration that perp etuate Plaintiffs’ and class m embers’ placement in IMDs,
26

Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 27 of 32
rather than facilitating their receipt of services in the most integrated setting appropriate to their needs.
Count III Failure to Administer Services in the Most Integrated Setting Appropriate in Violation of
the Rehabilitation Act 110. Plaintiffs and class members repeat and reallege paragraphs 1-96 above. 111. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, provides: No otherwise qualified individua l with a dis ability in the United Sta tes . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 112. DPH, DHFS, DMH and DHS are recipients of Federal financial assistance. 113. Defendants Quinn, Saddler, Rickm an-Jones, Arnold and Maram are responsible for the operation of DPH, DHFS, DMH and DHS. 114. Plaintiffs and class m embers reside in IMDs and are each qu alified to participate in a more integrated community residential program that meets their mental health needs. 115. Section 504 of the Reh abilitation Act re quires Defendants to serve individuals with disabilities in the most integrated setting appropriate to their needs. 116. Serving Plaintiffs and class m embers in more integ rated settings can be reasonably accomplished. 117. Defendants have violated Section 504 of the Rehabilitation Act by failing to administer services to Plaintiffs, and those sim ilarly situated, in the most integrated se tting appropriate to their needs.
27

Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 28 of 32
Count IV Violation of the Rehabilitation Act's Prohibition on Using Methods of Administration That
Subject Plaintiffs to Discrimination 118. Plaintiffs and class members repeat and reallege paragraphs 1-96 above. 119. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 prohibits Defendants from discriminating against individuals with disabilities. 120. Regulations implementing Section 504 of th e Rehabilitation Act provide that "a recipient may not, directly or through contractual or other arra ngements, utilize criteria or methods of administration: (i) That have the effect of subjecting qua lified handicapped persons to discrimination on the basis of disability; [or] (i i) That have the purpose or effect of defeating or substantially im pairing accomplishment of th e objectives of the recipien t's program with respect to handicapped persons . . . ." 45 C.F.R. § 84.4(b). 121. DPH, DHFS, DMH and DHS are recipients of Federal financial assistance. 122. Defendants Quinn, Saddler, Rickm an-Jones, Arnold and Maram are responsible for the operation of DPH, DHFS, DMH and DHS. 123. Defendants utilize m ethods of adm inistration that have had the effect of subjecting Plaintiffs and clas s members to discrim ination. Defendants utilize m ethods of administration that perpetuate th e current IMD sy stem rather than facilitate the r eceipt of services in the most integrated setting appropriate to the needs of Plaintiffs and class members, which have resulted in Plaintiffs’ placem ent in an IMD, a setting that is s egregated and inappropriate.
Prayer for Relief WHEREFORE, the Plaintiffs, individually and on behalf of the class, respectfully request that the Court:
28

Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 29 of 32
A. Enter an order certifying the named Plaintiffs as representatives for a class consisting of those persons in Illinois who: (i) have mental illness and qualify for long-term care services; (ii) with appropriate supports and services, could live in the community, and (iii) who are institutionalized in IMDs.
B. Declare that Defendant’s failure to provide Plaintiffs with services in the most integrated setting appropriate to their needs violates the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
C. Issue a permanent injunction: (i) requiring Defendants to inform individuals with mental illnesses in the State that they may be eligible for community services and that they have the choice of such services; (ii) requiring Defendants promptly to determine Plaintiffs’ and class members’ eligibility for community services; (iii) prohibiting Defendants from arbitrarily denying eligibility to individuals who are capable of living in a community setting with appropriate supports and services; and (iv) requiring Defendants promptly to provide eligible Plaintiffs and class members with appropriate services sufficient to allow them to live in the most integrated setting appropriate to their needs.
D. Grant such other and further relief as this Court deems just and proper, including an award of reasonable attorneys’ fees, litigation expenses and costs.
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Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 30 of 32

Dated: March 31, 2010

Respectfully submitted,
By: s/ Angela D. Marston
THE ROGER BALDWIN FOUNDATION OF THE AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS Benjamin S. Wolf Lori N. Turner 180 North Michigan Avenue Suite 2300 Chicago, Illinois 60601 Telephone: (312) 201-9740 Facsimile: (312) 201-9760
EQUIP FOR EQUALITY Amy F. Peterson Laura Miller John Whitcomb 20 N. Michigan, #300 Chicago, IL 60602 Telephone: (312) 341-0022 Facsimile: (312) 341-0295
ACCESS LIVING OF METROPOLITAN CHICAGO Edward Mullen 115 West Chicago Avenue Chicago, IL 60610 Telephone: (312) 640-2100 Facsimile: (312) 640-2139 TTY (312) 640-2102
THE BAZELON CENTER FOR MENTAL HEALTH LAW Ira Burnim Jennifer Mathis Karen Bower 1101 15th Street, NW Suite 1212 Washington, DC 20005 Telephone: 202-467-5730 Facsimile: 202-223-0409
KIRKLAND & ELLIS LLP Donna M. Welch, P.C. Joseph M. Russell Elizabeth J. Kappakas Angela D. Marston
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Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 31 of 32 300 North LaSalle Chicago, IL 60654 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 ATTORNEYS FOR PLAINTIFFS
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Case 1:05-cv-04673 Document 251 Filed 03/31/10 Page 32 of 32

CERTIFICATE OF SERVICE

The undersigned, an attorney, hereby certif ies that on March 31, 2010, she caused to be filed through the Court’s CM/ECF system the foregoing SECOND AMENDED COMPLAINT FOR RELIEF, copies of which will be electronically e-mailed to the parties of record.

s/

Angela Dickson Marston______

Angela Dickson Marston

 
 • Case: 1:05-cv-04673 Document #: 86 Filed: 04/05/07 Page 1 of 2 PageID #:489

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

ETHEL WILLIAMS, JAN WRIGHTSELL, DONELL )

HALL and EDWARD BRANDON, on behalf of

)

themselves and all others similarly situated,

)

)

Plain(ilTs,

)

)

vs.

)

)

ROD BLAGOJEVICH, in his official capacity as

)

Governor of the State of Illinois, CAROL 1. ADAMS, )

in her official capacity as Secretary 0 I' the Illinois

)

D~partment of Human Servic~s, LORRIE STONE,

)

in her official capacity as Director of the

)

Division of Mental Health or the Illinois

)

Department ofI-luman Services, ERTC E, WHITAKER, )

in his of1icial capacity as Director of the Illinois

)

Department of Public Health, and BARRY S. MARAM, )

in his official capacity as Director of the I11inois )

Department of Healthcare and Family Services,

)

)

Defendants.

)

No. 05 C 4673 Judge Hart

ORDER

Plaintifrs having filed two Motions (0 Compel discovery, the parties having appeared

befi,m:, the Court on March 21, 2007, and the Court being fully advised in the premises, IT IS

HEREBY ORDERED THAT:

1. Plaintiffs' Motions to Compel discovery are GRANTED;

2. Carol Adams, in her of1icial capacity as Secretary or the Illinois Department of

Human Services, Lorrie Stonc, in her ofi1cial capacity as Director of the Division of Mental

health of the 1I1inois Department of Human Services, Eric E. Whitaker, in his official capacity as

Director of the Illinois Department of Public Heal!h, and Barry S. Maram, in his official capacity

as Director 01' the Illinois Department of Healthcare and Family Services ("the State Agency

• Case: 1:05-cv-04673 Document #: 86 Filed: 04/05/07 Page 2 of 2 PageID #:490
'-
Defendants") will make their Rule 30(b)(6) witnesses available to be deposed no later than May 2,2007;
3. The State Agency Defendants will identify the location of documents idcntilied in their Rule 26(a) disclosure ~tatement and will make them available for inspection and copying by plainlifrs no later than April II, 2007; and
4. The parties will appear before the Court on May 2, 2007 at II a.m. for a status hearing. The status hearing scheduled thr April 18, 2007 is stricken.
ENTER:
William T. lIart United States District Judge

 
 Case 1:05-cv-04673 Document 42 Filed 04/26/2006

1 19

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

ETHEL WILLIAMS, JAN WRIGHTSELL, DONELL HALL and EDWARD BRANDON, on behalf of themselves and all others similarly situated,
Plaintiffs.
v.
ROD BLAGOJEVICH, in his official capacity as Governor of the State of Illinois, CAROL L. ADAMS, in her official capacity as Secretary of the Illinois Department of Human Services, LORRIE STONE, in her official capacity as Director of the Division of Mental Health of the Illinois Department of ofHurnan Services, ERIC E. WHITAKER, in his official capacity as Director of the Illinois Department of Public Health, and BARRY S. MARAM, in his official capacity as Director ofthe Illinois Department of Healthcare and Family Services,
Defendants.

) ) ) ) ) ) No. 05 C 4673 ) Judge Hart ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

MOTION FOR CERTIFICATION OF CLASS

Plaintiffs Ethel Williams and Jan Wrightsell, by their attorneys, respectfully move this

Court to enter an Order for class certification pursuant to Rules 23(a) and 23(b)(2) of the Federal

Rules of Civil Procedure. Plaintiffs propose a class of all persons who:

(1) have a mental illness;

(2) with appropriate supports and service, could live in the community; and

(3) are institutionalized in privately-owned Institutions for Mental Diseases ("IMDs").

In support of this motion, Plaintiffs state as follows:

1. Plaintiffs seek declaratory and injunctive relief on their own behalf and on behalf

of all others similarly situated. Plaintiffs allege that Defendants' have systematically failed to

Case 1:05-cv-04673 Document 42 Filed 04/26/2006

2 19

inform IMD residents of their right to community services, to provide them with services in the most integrated setting appropriate to their needs, and to provide services with reasonable promptness. Defendants have failed to enact a policy or practice that assures that their services are administered to Plaintiffs in the most integrated setting appropriate to their needs, in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12131 and 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
2. The defined class is so numerous that joinder of all plaintiffs is impracticable. More than five thousand individuals with psychiatric disabilities live in IMDs in the state of Illinois, and it is believed that thousands of these individuals could live in a more integrated setting with appropriate supports and services.
3. There are questions of law and fact common to the class. Those questions predominate over questions affecting individual class members. The claims of the named plaintiffs are typical of those of the class. Specifically, the named plaintiffs reside in IMDs and continue to languish in the segregated settings of those IMDs because Defendants have denied or failed to assure that the state's mental health programs provide services in the most integrated settings appropriate to their needs.
4. The named plaintiffs will fairly and adequately represent the interests ofthe class. They have no interests that conflict with or are antagonistic to the class and seek relief that will benefit all members of the class. Plaintiffs' counsel are competent and experienced in classaction civil rights cases of this nature.
5. Defendants, by failing to administer services in the most integrated settings appropriate to Plaintiffs' needs, have acted on grounds generally applicable to the class. Therefore, declaratory and injunctive relief with respect to the entire class is appropriate.

2

Case 1:05-cv-04673 Document 42 Filed 04/26/2006

3 19

6. Plaintiffs have prepared a Memorandum, attached hereto and filed concurrently with this Motion, articulating in greater detail the grounds for class certification.
WHEREFORE, Plaintiffs respectfully request this Court enter an Order certifying this case as a class action for the class of persons described above.

Dated: April 26, 2006

Respectfully submitted,
By: lsi Joseph M. Russell
THE ROGER BALDWIN FOUNDATION OF THE AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS Benjamin S. Wolf 180 North Michigan Avenue Suite 2300 Chicago, Illinois 60601 Telephone: (312) 201-9740 Facsimile: (312) 201-9760
EQUIP FOR EQUALITY Barry C. Taylor Amy F. Peterson Laura Miller John Whitcomb 20 N. Michigan, #300 Chicago, IL 60602 Telephone: (312) 341-0022 Facsimile: (312) 341-0295
ACCESS LIVING Max Lapertosa Kenneth M. Walden 614 West Roosevelt Road Chicago,IL 60607 Telephone: (312) 253-7000 Facsimile: (312) 253-7001
KIRKLAND & ELLIS, LLP Donna M. Welch Joseph M. Russell TanaRyan
3

Case 1:05-cv-04673 Document 42 Filed 04/26/2006

4 19

AnnH. Chen 200 East Randolph Drive Chicago, IL 60601 Telephone: (312) 861-2000 Facsimile: (312) 861-2200
ATTORNEYS FOR PLAINTIFFS

4

Case 1:05-cv-04673 Document 42 Filed 04/26/2006

5 19

CERTIFICATE OF SERVICE
The undersigned attorney certifies that a true and correct copy of PLAINTIFFS' MOTION FOR CERTIFICATION OF CLASS AND MEMORANDUM OF LAW was served the 26th day of April, 2006 via the Court's Electronic Case Filing System and via First Class Mail on the following counsel for Defendants:
Thomas A. Ioppolo, AAG Office ofthe Illinois Attorney General 100 W. Randolph Street, 13th Floor Chicago,IL 60601 Facsimile: (312) 814-4425
Kerry R. Peck, Esq. Ray J. Koenig III, Esq. Peck, Bloom, Austriaco & Mitchell, LLC 105 W. Adams St., 315t Floor Chicago, IL 60603 Facsimile: (312) 201-0803

lsI Ann H. Chen Counsel for Plaintiffs

Case 1:05-cv-04673 Document 42 Filed 04/26/2006

6 19

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

ETHEL WILLIAMS, JAN WRIGHTSELL, DONELL HALL )

and EDWARD BRANDON, on behalf ofthemselves and all

)

others similarly situated,

)

)

Plaintiffs.

)

) No. 05 C 4673

v.

) Judge Hart

)

ROD BLAGOJEVICH, in his official capacity as

)

Governor of the State of Illinois, CAROL L. ADAMS,

)

in her official capacity as Secretary ofthe Illinois

)

Department of Human Services, LORRIE STONE,

)

in her official capacity as Director of the Division

)

of Mental Health of the Illinois Department of

)

of Human Services, ERIC E. WHITAKER, in his

)

official capacity as Director of the Illinois Department

)

of Public Health, and BARRY S. MARAM, in his

)

official capacity as Director of the Illinois Department

)

of Healthcare and Family Services,

)

)

Defendants.

)

--------------------------------------------~)

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CERTIFICATION OF CLASS

Plaintiffs, on behalf of themselves and others similarly situated, have brought this action

seeking declaratory and injunctive relief requiring Defendants to cease needlessly segregating

and institutionalizing Plaintiffs and those similarly situated in intermediate care nursing homes

for people with mental illness. Pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil

Procedure, Plaintiffs respectfully move this Court for class certification. The proposed class

consists of all persons in Illinois who have a mental illness, could live in the community with

appropriate supports and services, and are institutionalized in privately-owned Institutions for

Case 1:05-cv-04673 Document 42 Filed 04/26/2006

7 19

Mental Diseases ("IMDs"). Plaintiffs hereby submit this memorandum in support of their motion for class certification.
LEGAL STANDARD The district court may certify a class action if the potential class satisfies the prerequisites set forth in Rule 23 of the Federal Rules of Civil Procedure. See Gen. Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 161 (1982). Specifically, the potential class must satisfy the following criteria: (1) numerosity; (2) commonality of facts and law; (3) typicality between the class claims and those of the named parties; and (4) adequacy of the representation by the names parties and class counsel. Fed. R. Civ. P. 23(a). Because Plaintiffs seek to certify a class under Rule 23(b)(2), they must also show that "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final and injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed. R. Civ. P. 23 (b)(2). "In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (internal quotation omitted).
ARGUMENT I. CLASS CERTIFICATION IS APPROPRIATE BECAUSE PLAINTIFFS MEET
THE REQUIREMENTS OF RULE 23(A) When certifying a class under Rule 23(a), the Court may not consider the merits of the Plaintiffs' claims and must take all factual allegations in the complaint as true. Eisen, 417 U.S. at 177; Gomez v. Illinois State Bd. ofEduc., 117 F.R.D. 394, 398 (N.D. Ill. 1987). Additionally, civil rights cases alleging discriminatory policies or practices are "by definition" class actions, provided that they meet the other requirements of Rule 23(a). Gen. Telephone Co., 457 U.S. at
2

Case 1:05-cv-04673 Document 42 Filed 04/26/2006

8 19

157; see also Robert E. v. Lane, 530 F. Supp. 930, 944 (N.D. Ill. 1980) (stating that a case alleging civil rights violations in an institutional setting represents a "prototypical candidate" for class certification).
Courts may certify a class under Rule 23(a) when: (1) its members are so numerous that joinder of claims is impracticable; (2) there are questions oflaw or fact common to the class; (3) the claims of the representative parties are typical of the class claims; and (4) the representative parties and their counsel will fairly and adequately protect the interests of the class. Fed. R. Civ. Proc. 23(a); Alliance to End Repression v. Rockford, 565 F.2d 975, 977 (7th Cir. 1977). Courts have further recognized two implied requirements under Rule 23(a): (1) the class must be readily identifiable, and (2) the named plaintiffs must be part of the class. !d. at 977-78; Gomez, 117 F.R.D. at 397-98. As shown below, the proposed class here easily meets these requirements under Rule 23(a).
A. Joinder Would Be Impracticable Although commonly referred to as the "numerosity" requirement, "the crux of the numerosity requirement is not the number of interested persons per se, but the practicality of their joinder into a single suit." Arenson v. Whitehall Convalescent & Nursing Home, 164 F.R.D. 659, 663 (N.D. Ill. 1996) (citing Small v. Sullivan, 820 F. Supp. 1098, 1109 (S.D. Ill. 1992)). "'Impracticable' does not mean 'impossible,' but rather, extremely difficult and inconvenient." Danis v. USN Communs., Inc., 189 F.R.D. 391, 399 (N.D. Ill. 1999). While the number of class members is an important factor, other significant factors include "judicial economy, geographic diversity of class members, and the ability of individual class members to institute individual lawsuits..." Id.; see also Riordan v. Smith Barney, 113 F.R.D. 60, 61 (N.D. Ill. 1986) ("[T]he test for impracticability of joinder is not simply a test for the number of class members."). Under these guidelines, courts in this District have certified classes with as few as
3

Case 1:05-cv-04673 Document 42 Filed 04/26/2006

9 19

29 members. See Riordan, 113 F.R.D. at 61; see also Swanson v. American Consumer Industries, 415 F.2d 1326, 1333 (7th Cir. 1969) (finding 40 members sufficient for class certification).
Here, there is no question that joinder is impracticable. Plaintiffs and those similarly situated are currently housed in intermediate care nursing homes classified by the Illinois Department of Healthcare and Family Services ("DHFS") (formerly the Illinois Department of Public Aid) as "IMDs." 1 More than five thousand individuals with psychiatric disabilities live in IMDs in the state of Illinois. See Amended Complaint at ~ 5. While the exact number of these individuals who could live in a more integrated setting with appropriate supports and services is not known to the Plaintiffs, it is believed to be in the thousands. See id. at ~ 23. Accordingly, based on their sheer number alone, joinder of these residents' claims is impracticable.
Other factors further point to the impracticability of joinder. As residents of nursing homes, the class members live in restrictive facilities which offer little independence, privacy, or control over their lives. See id. at ~ 5.
Moreover, virtually all IMD residents receive Supplemental Security Income ("SSI"), and class members are required to contribute all but thirty dollars ($30) of their monthly SSI directly to the IMD operators for their shelter and board.2 Thus, class members do not have the independence or means to bring individual lawsuits. See Arenson, 164 F.R.D. at 663 ("Class
1 Institutions for Mental Diseases ("IMDs") are defmed by Title XIX of the Social Security Act, which prohibits federal Medicaid funding for IMD residents between 22 and 64 years old. This classification is based on the fact that these are institutions with more than sixteen beds that are primarily engaged in providing diagnosis, treatment or care of persons with mental disabilities. 42 U.S.C. § 1396d(i).
2 Federal law prohibits Defendants from receiving any federal Medicaid reimbursement for the care of IMD residents, aged 22 to 64, and Defendants must therefore pay for Plaintiffs' IMD placements solely out of state funds. DHFS funds the remaining expenses associated with Plaintiffs' shelter and board at the IMD. See Amended Complaint at ~ 15.

4

Case 1:05-cv-04673 Document 42 Filed 04/26/2006 Page 10 of 19
members who are residents of a nursing home may also lack the ability to pursue their claims individually. ")
Also impracticable is the ability to join claims of future class members, who by their very nature cannot be readily identified. Gomez, 117 F.R.D. at 399 ("The Court also notes that numerosity is met where, as here, the class includes individuals who will become members in the future.") (emphasis in original); Weaver v. Reagen, 701 F. Supp. 717, 721 (W.D. Mo. 1988) ("Since joinder of . . . unknown persons is impracticable, then the numerosity requirement is satisfied."). Because the Defendants have failed to develop and fund community alternatives to IMDs, individuals with mental illness will continue to be needlessly warehoused in IMDs without opportunities to move into more integrated settings. Finally, judicial economy would plainly be served by consolidating the actions of all similarly-situated IMD residents rather than having them litigate individually. Arenson, 164 F.R.D. at 663.
B. There are Questions of Law and Fact Common to the Class Rule 23(a) requires there "need be only a single issue common to all members of the
class." Ligas ex reI. Foster v. Maram, No. 05 C 4331, 2004 U.S. Dist. LEXIS 10856, * 11-12 (N.D. Ill. March 7,2006), Fields v. Maram, No. 05 C 0174, 2006 U.S. Dist. LEXIS 16291, * 19-
20 (N.D. Ill. Aug. 16, 2004); Edmondson v. Simon, 86 F.R.D. 375, 380 (N.D. Ill. 1980); Hispanics United v. Village ofAddison, 160 F.R.D. 681, 688 (N.D. Ill. 1995). Thus, "[a] common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2)." Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). See also Lightbourn v. County ofEl Paso, 118 F.3 d 421, 425 (5th Cir. 1997) ("The commonality test is met when there is at least one issue, the resolution of which will affect all or a significant number of the putative class members.") (citations omitted); Marisol A. v. Guiliani, 126 F.3d 372, 375 (2nd Cir. 1997) (class must "share a common question of law or fact"); Baby Neal v. Casey, 43 F.3d 48,55 (3rd
5

Case 1:05-cv-04673 Document 42 Filed 04/26/2006 Page 11 of 19
Cir. 1994) (commonality met where "named plaintiffs share at least one question of fact or law with the grievances of the prospective class.").
An allegation that the defendant's discriminatory policy or practice affects the class as a whole will suffice to prove commonality of claims, even when the factual situation of each class member differs. Rosario, 963 F.2d at 1017 ("The fact that there is some factual variation among class grievances will not defeat a class action.") (citing Patterson v. General Motors Corp., 631 F.2d 476,481 (7th Cir.), cert. denied, 451 U.S. 914 (1980)); see also Marisol A., 126 F.3d at 376 (in class action involving foster children, "[t]he unique circumstances of each child do not compromise the common question of whether, as plaintiffs allege, defendants have failed to meet their federal and state law obligations."). In other words, a defendant's standardized conduct toward class members, such as a generalized policy that affects all class members in the same way, is sufficient to satisfy commonality. Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998); see Gen. Tele. Co. ofthe Southwest, 457 U.S. 147, 159 n. 15 (1982).
In this action, Plaintiffs have challenged the Defendants' systematic failure to inform IMD residents of their right to community services, to evaluate their readiness for community placement and to provide them with services in the most integrated setting appropriate to their needs. Class members are residents of IMDs who could live in the community with appropriate supports and services but who have been denied the opportunity to live in more integrated
settings. See Amended Complaint at ,-r 6. This is, therefore, a "common nucleus of operative
fact" that affects all members of the class. See Ligas, 2006 U.S. Dist. LEXIS 10856, * 11-12
(finding common questions of law and fact where the proposed class challenged the defendants' standardized conduct and failure to enact policies regarding community placement); Fields, 2004
U.S. Dist. LEXIS 16291, * 19-23 (finding commonality where plaintiffs alleged and presented
6

Case 1:05-cv-04673 Document 42 Filed 04/26/2006 Page 12 of 19
evidence that the class was subjected to defendant's broad policy and practice of not providing required motorized wheelchairs to disabled nursing home residents receiving Medicaid).
Additionally, the class members' claims share common questions of law, including whether the Defendants' conduct violates the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. Class actions are routinely certified in civil rights cases presenting common questions of this nature. As Judge Castillo has recognized, "[w]here 'broad discriminatory policies and practices constitute the gravamen of a class suit, common questions oflaw or fact are necessarily presumed.''' Hispanics United, 160 F.R.D. at 688 (citing Midwest Cmty. Council v. Chicago Park Dist., 87 F.R.D. 457, 460 (N.D. Ill. 1980)).
C. The Named Plaintiffs' Claims are Typical of Those of the Class The "typicality" requirement is met when the named plaintiffs' claims "arise[] from the same event or practice or course of conduct that gives rise to the claims of other class members and ... are based on the same legal theory." De La Fuente v. Stokely-Van Camp, 713 F.2d 225, 232 (7th Cir. 1983). This question is "closely related to the preceding question of commonality." Rosario, 963 F.2d at 1018; see also Falcon, 457 U.S. at 157 n. 13 ("the commonality and typicality requirements of Rule 23(a) tend to merge..."). As with commonality, typicality does not require that all class members suffer the same injury as the named plaintiffs. See Rosario, 963 F.2d at 1018 (7th Cir. 1992) (finding that Rule 23(a)(3) does not require all class members to suffer the same injury). "Instead, we look to the defendant's conduct and the plaintiffs' legal theory to satisfy Rule 23(a)(3)." !d.; see also De La Fuente, 713 F.2d at 232 (finding that typicality requirement was satisfied regardless of whether "there are factual distinctions between the claims of the named plaintiffs and those of other class members. Thus, similarity of legal theory may control even in the face of differences of fact."); Ligas, 2006 U.S. Dist. LEXIS
7

Case 1:05-cv-04673 Document 42 Filed 04/26/2006 Page 13 of 19
10856, * 13 (citations omitted) (noting that the typicality requirement may be satisfied where the
plaintiffs share the same essential characteristics though factual differences may still exist). Here, the named Plaintiffs are residents of nursing homes designated as IMDs who could
live in the community with the appropriate supports and services but have been denied the opportunity to live in more integrated settings.. Their claims are therefore identical to those of the putative class, which consists of all other IMD residents who could live in the community with the appropriate supports and services but have also been denied the opportunity to live in more integrated settings. Because the named Plaintiffs and the class share the same deprivations
of federal rights, typicality is easily met here. See Ligas, 2006 U.S. Dist. LEXIS 10856, * 13-14
(finding typicality requirement satisfied where the plaintiffs sought relief requiring defendants to establish a policy for community placement and evaluation thereof); Fields, 2004 U.S. Dist.
LEXIS 16291, * 31-32 (finding typicality requirement satisfied where plaintiffs' claims arose
from defendants' alleged policy of refusing to provide certain services to nursing home residents, and plaintiffs' and class members' claims are all based on the same legal theory).
D. The Named Plaintiffs and their Counsel Will Fairly and Adequately Protect the Interests of the Class
The question of whether the named plaintiffs will adequately protect the interests of the class is twofold. First, the inquiry focuses on the adequacy of the named plaintiffs' representation of the interests of the class. Hispanics United, 160 F.R.D. at 689. Second, the inquiry looks at the adequacy of the named plaintiffs' counsel. Id. As shown below, Plaintiffs meet both requirements here.
1. The Named Plaintiffs' Interests are not Antagonistic to Those of the Class
8

Case 1:05-cv-04673 Document 42 Filed 04/26/2006 Page 14 of 19
The ability of the named Plaintiffs to represent the class goes to whether they have a "sufficient interest in the outcome to ensure vigorous advocacy," Rosario, 963 F.2d at 1018, as well as any interests "antagonistic to the interests ofthe class." Riordan, 113 F.R.D. at 64.
In this case, Plaintiffs' interests are entirely coextensive with those of the class. For instance, Plaintiffs share the same claims as the class members as well as a strong interest in securing declaratory and injunctive relief to remedy the lack of opportunity to move into a more integrated community setting with appropriate supports and services. The relief sought by the Plaintiffs, if granted, will benefit all members of the class. Furthermore, there are no conflicts or antagonism, whether actual or apparent, between the named plaintiffs and the class, as they all share in the same interest -- to have the opportunity if they choose to live in more integrated settings.
2. Plaintiffs' Counsel are Qualified to Maintain this Action Plaintiffs' counsel has extensive experience in civil rights cases and class action litigation, including disability rights cases, and are thus well-qualified to prosecute this action. The fact that counsel have been found adequate to represent classes of plaintiffs in the past constitutes "persuasive evidence" that they will serve as adequate counsel in this case. Gomez, 117 F.R.D. at 40l. Benjamin Wolf of the Roger Baldwin Foundation of the American Civil Liberties Union of Illinois has over twenty years' experience representing institutionalized children and people with disabilities. He has served as class counsel in numerous civil rights cases, including: B.H. v. McDonald, No. 88-C-5599 (N.D. Ill.) (see 49 F.3d 294 (7th Cir. 1995) and 856 F.Supp. 1285 (N.D. Ill. 1994)); K.L. v. Edgar, No. 92-C-5722 (N.D. Ill.) (see 2000 U.S. Dist. LEXIS 15404 (N.D. Ill. Oct. 6, 2000)); A.N v. Kiley, No. 86-C-9486 (N.D. Ill.) (see 1995 U.S. Dist. LEXIS 13993 (N.D. Ill. Sept. 22, 1996)); andA.T. v. County ofCook, No. 85-C-0325 (N.D. Ill.) (see 613
9

Case 1:05-cv-04673 Document 42 Filed 04/26/2006 Page 15 of 19
F.Supp. 775 (N.D. Ill. 1985)). Mr. Wolf also serves as class counsel in Ligas ex reI. Foster v. Maram, No. 05 C 4331 (see 2006 U.S. Dist. LEXIS 10856) (N.D. Ill. Mar. 7, 2006) (granting class certification)), a disability rights case where plaintiffs alleged defendants failed to provide the option of long-tenn care services in the most integrated setting appropriate to plaintiffs' and class members' needs.
Equip for Equality is the state-designated Protection and Advocacy agency for people with disabilities. See 42 U.S.C. § 15043. It serves as class counsel in Access Living v. Chicago Transit Auth., No. 00-C-0070 (N.D. Ill.) (see 2001 U.S. Dist. LEXIS 6041 (N.D. Ill. May 9, 2001)). Its lawyers regularly litigate individual cases on behalf of individuals with disabilities, including Ligas ex reI. Foster v. Maram, No. 05 C 4331 (see 2006 U.S. Dist. LEXIS 10856) (N.D. Ill. Mar. 7, 2006) (granting class certification)), a disability rights case where plaintiffs alleged defendants failed to provide the option of long-tenn care services in the most integrated setting appropriate to plaintiffs' and class members' needs. In addition, Laura Miller of Equip for Equality served as class counsel in the following disability rights cases: Corey H. v. Board of Educ., No. 92-C-3409 (N.D. Ill.) (see 995 F.Supp. 900 (N.D. Ill. 1998)) and Calvin G. v. Board ofEduc., No. 90-C-3248 (N.D. Ill.). John Whitcomb of Equip for Equality has served as class counsel in Norman v. Johnson, No. 89-C-1624 (N.D. Ill.) and Bates v. Johnson, No. 84-C-10054 (N.D. 111.).
Access Living has served as class counsel in Access Living v. Chicago Trans. Auth., see 2001 U.S. Dist. LEXIS 6041 (N.D. Ill. May 9, 2001), and also regularly litigates cases on behalf of individuals with disabilities, including Ligas ex reI. Foster v. Maram, No. 05 C 4331 (see 2006 U.S. Dist. LEXIS 10856) (N.D. Ill. Mar. 7, 2006) (granting class certification)), a disability rights case where plaintiffs alleged defendants failed to provide the option of long-tenn care
10

Case 1:05-cv-04673 Document 42 Filed 04/26/2006 Page 16 of 19
services in the most integrated setting appropriate to plaintiffs' and class members' needs. Additionally, Max Lapertosa of Access Living has served as class counsel in the following disability rights cases: Gaskin v. Pennsylvania, No. 94-CY-4048 (E.D. Pa.); Bradley v. Arkansas Dep't of Educ., No. 4-00-CY-00747 (E.D. Ark.) and Messier v. Southbury Training Sch., No. 94-CY-1706 (D. Conn.) (see 183 F.R.D. 350 (D. Conn. 1998)). Other disability civil rights cases where Mr. Lapertosa has served as counsel include: Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2001); Birmingham v. Omaha Sch. Dist., 220 F.3d 850 (8th Cir. 2001); Bowers v. National Collegiate Athletic Ass'n, 171 F. Supp. 2d 389 (D.N.1. 2001), 151 F. Supp. 2d 526 (D.N.1. 2001); Kristi H. v. Tri-Yalley Sch. Dist., 107 F. Supp. 2d 628 (M.D. Pa. 2000).
Finally, counsel from Kirkland & Ellis LLP are experienced litigators who have represented clients in class action proceedings in both state and federal courts. In particular, Donna M. Welch has worked on the following class actions: Rowls, et al. v. Gen. Motors Corp., Case No. 02-041877-CZ (State of Michigan, Cir. Ct. of Oakland 2002); Equal Employment Opportunity Comm'n v. Allstate Ins. Co., Civil Action No. 4:04CY01359 ERW (E.D. Mo. 2001); Romero, et al. v. Allstate Ins. Co., et al., Civil Action No. 01-CY-3894 (E.D. Pa. 2001); Puffer v. Allstate Ins. Co., No. 04-C-5764 (N.D. Ill. 2004); and Rutledge v. Gen. Motors Acceptance Corp., Case No. 05-C-0667 (E.D. Wis. 2005).
E. Plaintiffs are Members of the Class Finally, under Rule 23(a), the named Plaintiffs must show that they are part of the class they seek to represent. Hendrix v. Faulkner, 525 F. Supp. 435, 442 (N.D. Ind. 1980), affd in relevant part, Wellman v. Faulkner, 715 F.2d 269 (7th Cir. 1983), cert. denied, 468 U.S. 1217 (1984). Here, each ofthe named Plaintiffs has a mental illness, resides in an IMD, and could live
11

Case 1:05-cv-04673 Document 42 Filed 04/26/2006 Page 17 of 19
in the community with the proper supports and services. See Amended Complaint at ~~ 41, 61, 67, 73, and 78. They therefore meet the criteria for class membership. II. CLASS DETERMINATION IS APPROPRIATE BECAUSE PLAINTIFFS MEET
THE REQUIREMENTS OF RULE 23(b)(2) In addition to satisfying the requirements of Rule 23(a), the Plaintiffs must also meet one of the requirements of Rule 23(b). Here, Plaintiffs move under Rule 23(b)(2), which allows class certification if the defendant "has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed. R. Civ. Pro. 23(b)(2). Civil rights cases against parties charged with broad-based discrimination are "prime examples" of actions under Rule 23(b)(2). Amchem Products v. Windsor, 521 U.S. 591, 613 (1997). This case is exemplary of a Rule 23(b)(2) action because the Defendants' policies and practices affect all members of the class as well as the named Plaintiffs, the remediation of the effects of such policies and procedures is well-suited for and requires declaratory and injunctive relief. Plaintiffs do not seek monetary damages for themselves or the class. Indeed, it is commonplace for courts to certify classes under Rule 23(b)(2) in cases where aid recipients seek to enforce their rights to necessary services and/or community integration. See Ligas, 2006 U.S. Dist. LEXIS 10856, * 18; Fields v. Maram, 2004 U.S. Dist. LEXIS 16291, **40-41 (N.D. Ill. Aug. 16, 2004); Hawkins v. Comm'r, 2004 U.S. Dist. LEXIS 807, **11-12 (D.N.H. Jan. 23, 2004); Verdow v. Sutkowy, 209 F.R.D. 309, 313 (N.D. N.Y. 2002); Boulet v. Cellucci, 107 F. Supp. 2d 61, 81 (D. Mass. 2001); Benjamin H. v. Ohl, 1999 U.S. Dist. LEXIS 22454, **11-12 (S.D.W.V. Oct. 8, 1999); Weaver v. Reagen, 701 F. Supp. 717, 722-23 (W.D. Mo. 1988), aff'd, 886 F.2d 194 (8th Cir. 1989); Mitchell v. Johnston, 701 F.2d 337, 345-46 (5th Cir. 1983); see also Hillburn v. Maher, 795 F.2d 252, 255 (2nd Cir. 1986). As in these cases, the Plaintiffs in
12

Case 1:05-cv-04673 Document 42 Filed 04/26/2006 Page 18 of 19

this action allege that the Defendants' practices and policies effectively deny the Plaintiffs and class members the opportunity to move from IMDs to more integrated settings in the community. Accordingly, Plaintiffs easily meet the requirements of Rule 23(b)(2).
CONCLUSION For the reasons stated above, Plaintiffs respectfully request this Court to grant its Motion For Class Certification.

Dated: April 26, 2006

Respectfully submitted,
By: /s/ Joseph M. Russell
THE ROGER BALDWIN FOUNDATION OF THE AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS Benjamin S. Wolf 180 North Michigan Avenue Suite 2300 Chicago, Illinois 60601 Telephone: (312) 201-9740 Facsimile: (312) 201-9760
EQUIP FOR EQUALITY Barry C. Taylor Amy F. Peterson Laura Miller John Whitcomb 20 N. Michigan, #300 Chicago, IL 60602 Telephone: (312) 341-0022 Facsimile: (312) 341-0295
ACCESS LIVING Max Lapertosa Kenneth M. Walden 614 West Roosevelt Road Chicago,IL 60607 Telephone: (312) 253-7000 Facsimile: (312) 253-7001
KIRKLAND & ELLIS, LLP
13

Case 1:05-cv-04673 Document 42 Filed 04/26/2006 Page 19 of 19 Donna M. Welch Joseph M. Russell TanaRyan AnnH. Chen 200 East Randolph Drive Chicago,IL 60601 Telephone: (312) 861-2000 Facsimile: (312) 861-2200 ATTORNEYS FOR PLAINTIFFS
14

 
 Case 1:05-cv-04673 Document 40 Filed 04/26/2006

1 31

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

ETHEL WILLIAMS, JAN WRIGHTSELL, DONELL HALL and EDWARD BRANDON, on behalf of themselves and all others similarly situated,
Plaintiffs.
v.
ROD BLAGOJEVICH, in his official capacity as Governor of the State of Illinois, CAROL L. ADAMS, in her official capacity as Secretary ofthe Illinois Department ofHuman Services, LORRIE STONE, in her official capacity as Director ofthe Division ofMental Health ofthe Illinois Department of of Human Services, ERIC E. WHITAKER, in his official capacity as Director ofthe Illinois Department of Public Health, and BARRY S. MARAM, in his official capacity as Director ofthe Illinois Department ofHealthcare and Family Services,
Defendants.

) ) ) ) ) ) No. 05 C 4673 ) Judge Hart ) ) ) ) ) DEMANDFOR ) DECLARATORY AND ) INJUNCTIVE RELIEF ) ) ) ) ) ) ) )

First Amended Complaint for Relief

Plaintiffs, residents of intermediate care nursing homes for people with mental illness,

bring this action against the above named Illinois state officials (collectively, "Defendants"),

who have allowed Plaintiffs to be needlessly segregated and inappropriately warehoused in

restrictive institutions for people with mental illness and who have failed to ensure that Plaintiffs

are provided with services in the most integrated setting appropriate to their needs-in violation

oftheir rights under federal statutes and regulations-and allege as follows:

Preliminary Statement

1. Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131,

12132, prohibits discrimination against individuals with disabilities. The United States

Case 1:05-cv-04673 Document 40 Filed 04/26/2006

2 31

Department of Justice has promulgated regulations under Title II stating that "a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." See 28 C.F.R. § 35.130(d) (emphasis added). Similarly, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, provides that no person with a disability shall "solely by reason of his or her disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
2. In Olmstead v. L. c., 527 U.S. 581 (1999) ("Olmstead"), the U.S. Supreme Court
held that disability-based discrimination includes placing people with mental illness in "unjustified isolation."
3. This action is brought to compel Defendants to comply with these mandates with regard to Plaintiffs and those similarly situated. Plaintiffs are currently housed in private, intermediate care nursing homes classified as Institutions for Mental Diseases ("IMDs"), which are designed to warehouse--often for private profit-large numbers of people with mental illness in a segregated setting.1
4. Defendants have failed to assure that Plaintiffs, and those similarly situated, are placed in a more integrated setting where they could lead more independent and more productive lives within the community.
5. More than five thousand individuals with psychiatric disabilities live in private1yowned IMDs in Illinois. These IMDs house dozens and often hundreds of people into the same building. They needlessly warehouse large numbers of people who could be served at the same
1 Institutions for Mental Diseases ("IMDs") are defined by Title XIX of the Social Security Act, which prohibits federal Medicaid funding for IMD residents between 22 and 64 years old. See infra, 15.

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or less cost to the State in far more integrated settings in their communities. The nursing home structure of the IMDs deprives residents of countless liberties and choices most citizens take for granted, such as the opportunity to read a book in private, to choose what to have for dinner, to decide when to wake up in the morning, and to come and go when desired. The IMDs range from cold and institutional to chaotic, unclean and unsafe. Few provide adequate staffing, psychiatric treatment, therapeutic activities or social rehabilitation. People frequently stay in IMDs only because they have nowhere else to go, a result of the Defendants' longstanding neglect of its basic obligations under the ADA.
6. Plaintiffs, and those similarly situated, continue to languish in the segregated setting of the IMDs, despite the fact that equally affordable and more integrated residential settings exist and/or could be made available. Such residential settings would more appropriately meet Plaintiffs' needs.
7. Defendants have violated Title II of the ADA and Section 504 of the Rehabilitation Act by failing to assure that their services are administered to Plaintiffs in the most integrated setting appropriate to their needs. Instead, they have isolated and institutionalized Plaintiffs, and those similarly situated, in IMDs.
Nature and Statutory Basis of Action 8. This action includes claims for violation of Title II of the ADA, 42 U.S.C. §§ 12131, 12132, which prohibits state and local government entities from discriminating against individuals with disabilities. 9. This action also includes claims for violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, which prohibits recipients of federal funding from discriminating against individuals with disabilities.

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Parties 10. Named Plaintiff Ethel Williams has been a resident of an Illinois IMD (Monroe Pavilion) for approximately thirteen years. Ms. Williams has been diagnosed with bipolar disorder. She is alert, active, and attends an occupational day program five days a week. Ms. Williams maintains close contact with her children and grandchildren. She also spends her weekends with her brother and sister-in-law, where she takes her medication independent of supervision. 11. Named Plaintiff Jan Wrightsell has been a resident of an Illinois IMD (Monroe Pavilion) since early 2002. Ms. Wrightsell has been diagnosed with schizophrenia and has a history of major recurrent depression. She is alert and active; in fact, she currently cooks for staff and fellow members of an occupational day program, which she attends five days a week. Ms. Wrightsell maintains close contact with her family, and has substantial prior work experience as a sales clerk. She is well-educated and enjoys reading, writing short stories and composing poetry. Interacting with animals and pets is one of her favorite leisure activities. 12. Named Plaintiff Donell Hall has been a resident of an Illinois IMD (Greenwood Care) for approximately twelve years. Mr. Hall has been diagnosed with bipolar disorder and schizophrenia. Mr. Hall is alert and active; in fact, he formerly served in the United States Army, from which he received an honorable discharge. He currently works at Anixter Center, a day program which he attends five days a week. 13. Named Plaintiff Edward Brandon has been a resident of an Illinois IMD (Wilson Care) for approximately two years. Mr. Brandon has been diagnosed with schizophrenia. Mr. Brandon is alert and active. Mr. Brandon currently works five days a week at the Anixter

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Center, his day program, where he buses tables. He maintains close contact with his grandmother and a cousin.
14. Plaintiffs, and those similarly situated, are Illinois residents who have mental illnesses that substantially limit their ability to perform major life activities. They also have a record of such mental illnesses, and are regarded by Defendants as having such mental illnesses. They are therefore individuals with disabilities for purposes of the ADA and the Rehabilitation Act. 42 U.S.c. § 12102,29 U.S.C. § 705(20).
15. Plaintiffs and those similarly situated are currently housed in intermediate care nursing homes classified by the Illinois Department of Healthcare and Family Services ("DHFS") (formerly the Illinois Department of Public Aid) as "IMDs." This classification is based on the fact that these are institutions with more than sixteen beds that are primarily engaged in providing diagnosis, treatment or care of persons with mental disabilities. 42 U.S.c. § 1396d(i). Federal law prohibits Defendants from receiving any federal Medicaid reimbursement for the care of IMD residents, aged 22 to 64, and Defendants must therefore pay for their IMD placements solely out of state funds. Virtually all IMD residents receive Supplemental Security Income ("SSI"). SSI recipients must contribute all but thirty dollars ($30) of their monthly SSI checks directly to the IMD operators. DHFS funds the remaining expenses associated with Plaintiffs' shelter and board at the IMD.
16. Defendant Rod Blagojevich is the Governor ofthe State of Illinois, a public entity covered by Title II of the ADA. 42 U.S.c. § 12131(1). Governor Blagojevich is ultimately responsible for ensuring that Illinois operates its service systems in conformity with the ADA and the Rehabilitation Act. 20 ILL. COMPo STAT. 2407/20(c). He is sued in his official capacity.

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17. Defendant Carol L. Adams is the Secretary of the Illinois Department of Ruman Services ("DRS"), the state agency responsible for assisting Illinois residents in achieving selfsufficiency, independence and health to the maximum extent possible by providing integrated family-oriented services, promoting prevention and establishing measurable outcomes in partnership with communities. DRS advertises itself as Illinois' largest agency, employing more than 15,000 people. It has an annual budget of nearly five billion dollars. DRS is a public entity covered by Title II of the ADA. 42 U.S.C. § 12131(1). DRS is the recipient of federal funds subject to the requirements of Section 504 of the Rehabilitation Act, 29 U.S.c. § 794. Carol L. Adams is responsible for the operation and administration of DRS and is ultimately responsible for ensuring that DRS provides services in conformity with the ADA and the Rehabilitation Act. 20 ILL. COMPo STAT. 2407/20(c). She is being sued in her official capacity.
18. Defendant Lorrie Stone is the Director of the Division of Mental Realth ("DMH"), the division of DRS responsible for helping to maximize community supports and develop skills for persons with serious mental illness. DMH is responsible for administering mental health screening and assessment of individuals with mental disabilities considered for placement in nursing homes. DMH is responsible for the placement of individuals with mental illness in an appropriate facility or program. DMR is the recipient of federal funds subject to the requirements of Section 504 of the Rehabilitation Act, 29 U.S.c. § 794. DMH is a public entity subject to the requirements of Title II of the ADA, 42 U.S.C. § 12131. Dr. Stone is responsible for the operation and administration of DMH and for ensuring that DMH, as the division of DRS responsible for providing residential and mental health services to peopJe with mental illness, operates in conformity with the ADA and the Rehabilitation Act. She is being sued in her official capacity.

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19. Defendant Eric E. Whitaker, M.D., is the Director of the Illinois Department of Public Health ("DPH"), the state agency responsible for licensing, regulating and inspecting all nursing homes, including IMDs, in the state of Illinois. DPH is responsible for certifying these facilities for participation in federal payment reimbursement programs. DPH is also responsible for ensuring that persons with mental illness are appropriately screened and placed in nursing homes, and receive discharge planning. 77 III Admin. Code §§300.4010, 300.4060; 210 ILL. COMPo STAT. 45/3-202.2. DPH is a public entity covered by Title II of the ADA. 42 U.S.c. § 12131(1). DPH is the recipient of federal funds subject to the requirements of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. DPH's regulations permit the placement of an individual with mental illness in a nursing home, including an IMD, "for a medical reason directly related to the person's diagnosis of serious mental illness, such as medication management." 77 Ill. Admin. Code § 300.4000(c). Dr. Whitaker is being sued in his official capacity.
20. Defendant Barry S. Maram is the Director of the Illinois Department of Healthcare and Family Services ("DHFS"), the state agency responsible for providing health care coverage for the citizens of Illinois and for administering medical assistance programs and other fiscal programs. DHFS funds IMDs for resident services, including assessment, care planning, discharge planning, and treatment. 89 Ill. Admin. Code §145.20, subchapter d; 305 ILL. COMPo STAT. 5/5-5.5. DHFS is a public entity covered by Title II of the ADA. 42 U.S.c. § 12131(1). DHFS is the recipient of federal funds subject to the requirements of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Barry S. Maram is responsible for operation and administration of DHFS and for ensuring that DHFS operates in conformity with the ADA and the Rehabilitation Act. He is being sued in his official capacity.

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Class Action Allegations 21. The named Plaintiffs bring this action as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. 22. The class of individuals that the named Plaintiffs seek to represent consist of those persons in Illinois who (1) have a mental illness; (2) with appropriate supports and services, could live in the community; and (3) are institutionalized in privately-owned IMDs. 23. The class is so numerous that joinder of all Plaintiffs is impracticable. The exact number of individuals in the class is not known to Plaintiffs, but is believed to be in the thousands. 24. The claims of the named Plaintiffs are common to those of the class and raise common issues of fact and law, including, among others: whether Defendants adequately determine whether class members are eligible for community services; whether Defendants adequately inform IMD residents of their right to community services; whether Defendants are providing services to mentally ill individuals in the most integrated setting appropriate to their needs; whether Defendants have a comprehensive, effectively working plan for achieving that goal; whether Defendants efficiently administer a waiting list for community services that allows individuals to move out of IMDs and into more integrated settings at a reasonable pace; and whether Defendants violate the Americans with Disabilities Act and Section 504 of the Rehabilitation Act by failing to provide community-based services to qualified individuals. 25. Plaintiffs' claims that Defendants have failed to administer the state's mental health programs so as to provide services in the most integrated setting appropriate to their needs are typical of the claims ofthe class.

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26. Plaintiffs will fairly and adequately protect the interests of the class because they suffer from deprivations identical to those of the class members and have been denied the same federal rights that they seek to enforce on behalf of the other class members, many of whom are unable to pursue claims on their own behalf as a result of their disabilities, their limited financial resources, and/or the actions of the Defendants to deprive them of their rights. Plaintiffs' interests in obtaining injunctive relief for the violations of their legal rights and privileges are consistent with and not antagonistic to those of any person within the class. Furthermore, Plaintiffs' counsel has extensive experience in the areas of class action litigation and civil rights laws concerning people with disabilities.
27. Defendants have acted or refused to act on grounds generally applicable to all members of the class by unnecessarily segregating class members. For example, Defendants have failed to inform class members of their right to community services, failed to provide them with services in the most integrated setting appropriate to their needs, and failed to provide services with reasonable promptness. Therefore, declaratory and injunctive relief with respect to the entire class is appropriate.
Jurisdiction and Venue 28. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 for civil actions arising under the laws ofthe United States and 28 U.S.C. § 1343 for actions arising under laws providing for the protection of civil rights. 29. Venue in the Northern District of Illinois is proper under 28 U.S.C. § 1391, as it is the judicial district in which a substantial portion of the events or omissions giving rise to these claims occurred. 30. Declaratory and injunctive relief are sought under 28 U.S.C. § 2201 et seq.

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Background 31. Beginning in the late 1960s the State of Illinois began releasing thousands of individuals with mental illness from its psychiatric institutions. As this "de-institutionalization" progressed, however, the state failed to create and develop adequate community housing and community services for large numbers of "de-institutionalized" individuals. Instead, the state funneled funds to nursing home operators who profited from the large numbers of mentally ill individuals recently de-institutionalized. Throughout the 1970s and 1980s, nursing home operators opened up large facilities ("IMDs") designed - often for profit - to house these individuals, oftentimes in settings nearly as segregated and restrictive as the state psychiatric institutions they had just exited. Today, individuals with mental illness continue to be discharged from psychiatric hospitals into these restrictive facilities, where they continue to be needlessly segregated from society-at-Iarge. This segregation occurs under the supervision of state agencies which, rather than helping re-integrate these individuals back into their communities by funding community-based programming, endorse and fund the IMDs. These IMDs do not prepare their residents to live independently and deny residents privacy and control over their lives. In many cases, the choice for persons with mental illness is between residence in an IMD-and compliance with its restrictive and controlling environment--or homelessness. 32. Some fortunate individuals are discharged from psychiatric hospitals and placed in residential programs that are designed to help them achieve independence and manage their illness. Many others, however, like Plaintiffs and those similarly situated, are instead discharged to nursing homes, many of which are IMDs. In most Illinois nursing homes designated as IMDs, virtually all IMD residents have been diagnosed with mental illness.
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33. Federal law prohibits Medicaid reimbursement to any individual who is older than 21 years of age and under 65 years of age and who is a resident of an IMD (42 U.S.C. § 1396d(a)(1), (2), (4)). Plaintiffs and class members who receive SSI are required to contribute all but thirty dollars ($30) of their monthly SSI check directly to the IMD operators to be used for their shelter and board. DHFS funds the remaining expenses associated with Plaintiffs' support and housing at the IMD.
34. Thus, the State of Illinois is not reimbursed by the federal government for serving residents between the ages of 22 and 64 in IMDs. However, the State of Illinois would receive significant federal reimbursement for serving these same individuals in the community. If the current system were altered, the savings to the State of Illinois would be immense.
35. Defendants have failed to integrate the state's mental health system by failing to develop and fund community alternatives. Many IMD residents could be served in communityintegrated settings; however, as a practical matter, the choice most residents face is either an IMD or homelessness. Because most of their money - including money earned by those working at jobs outside the IMDs - goes into the IMD operators' pockets, IMD residents have little to no hope to save enough money to move to any other place. Most residents of IMDs remain there for years, because they are provided few opportunities to obtain services in more integrated settings and because they are provided few rehabilitation services to enable them to become more independent within the surrounding community.
36. Instead of serving individuals with mental illness in more integrated settings, Defendants continue to fund and operate a mental health system that segregates these individuals and, in many cases, restricts their access to the outside world.
Facts
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37. Illinois has historically provided, and currently provides, inpatient hospitalization to individuals with mental illness in public and private psychiatric hospitals.
38. Some individuals discharged from psychiatric hospitals return home to family or friends. Others are discharged to various community residential programs for individuals with mental illness.
39. In many of these residential programs, individuals live in their own apartments with greater privacy and with a greater choice of activities than now found in the IMDs. Individuals in community programs sometimes live in integrated buildings with individuals who do not have mental illnesses. They usually are able to receive and entertain visitors and communicate by phone in privacy. Individuals in community programs go to stores to shop for food and other necessities. Most of these individuals may go to doctors of their choice, as well as engage in social activities of their choice. They tend to these and other daily needs to the degree they are able, with supportive services provided by case managers. These programs are designed to foster independence and to enable individuals to become as self-sufficient as possible. Such programs are generally known as "supported housing." Unlike IMDs, they are not institutional in character.
40. When state agencies fail to develop or fund community services, individuals with serious mental illness are discharged to nursing homes, including IMDs.
Institutions for Mental Diseases ("IMDs") 41. The Named Plaintiffs and class members are currently housed in intermediatecare nursing homes classified as "IMDs." Most Illinois IMDs ----:; of which there are approximately twenty seven - house over one hundred residents each. Virtually all IMD residents have been diagnosed with mental illness. Common diagnoses include bipolar disorder, schizophrenia and major recurrent depression.
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42. There is insufficient capacity and long waiting periods for admission into community residential programs, including supported housing, so people with serious mental illness are inappropriately discharged from psychiatric hospitals to IMDs. The decision to discharge individuals such as Plaintiffs and those similarly situated to an IMD, as opposed to supported housing, is not based on any relevant treatment criteria or diagnosis, but simply on the lack of availability of appropriate alternatives.
43. Once individuals, such as Plaintiffs, are placed in an IMD, opportunities for discharge to supported housing are rare.
44. Most IMDs provide only beds, meals, and spartan rehabilitative services. For Plaintiffs and virtually all class members, the services provided by the IMDs could be better provided in a more integrated, community residential program.
45. IMDs place many limitations on residents' autonomy and privacy. Residents are subjected to a highly regimented lifestyle in which most daily activities are conducted in one place in the company of large numbers of other individuals with mental illness, and which is characterized by restrictive rules and policies. In contrast, the more integrated community residential programs for individuals with mental illness afford residents much more choice, freedom and privacy, as well as the opportunity to maintain family relationships and to interact with and form friendships with people who do not have mental illness.
46. Meals at IMDs are provided with little choice. Typically, well over one hundred individuals share access to a single common area. Residents must line up for meals and for medication, which is only dispensed at specific times in the common areas.
47. IMDs provide very few recreational or other activities geared toward helping residents gain independence. Residents spend hours watching television in a common room or
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smoking cigarettes in a smoking room during the winter or outside on the sidewalk-beside the facility -when the weather allows. Residents wander aimlessly in and out of the common room and smoking room with nothing to do for the majority of the day. There are some activities on weekday afternoons that purportedly develop residents' practical skills; however, these activities are minimal, if not altogether ineffective. Some residents are able to attend day programs outside the facility, where they may learn skills to help them become more independent and more productive members of the community. However, at the end of the day, these residents must return to their IlVIDs.
48. IlVID residents have almost no control over their personal space. Most IMD residents share a bedroom and bathroom with several other people. Residents generally have no control over when or by whom their rooms are cleaned or who has access to their rooms.
49. IlVID residents have virtually no privacy. Payphones are located only in common areas, where anyone can overhear their conv:ersation. Typically, IMD residents can receive calls only through the IMD switchboard, and are usually paged over a loudspeaker to come to a phone that is not in a private space.
50. The lack of privacy makes it very difficult for residents to exercise their rights. Since it is difficult for residents to make phone calls without IlVID staff knowing they are doing so, residents may be reluctant to call advocates when they have a problem. This serves as a further disincentive to residents exercising any kind of independence.
51. Residents have little contact with members of the community outside the facility. Outsiders' visits are generally limited and most visitors may not be received in privacy.
52. Typically, no food, liquids or medicines can be brought into the facility without permission of the IMD Administrator or nurse in charge.
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53. The depersonalization and lack of mental stimulation III the facility erodes residents' ability to live independently.
54. Moreover, IMDs have policies and practices that prevent residents from moving out of the institution. Such policies inhibit the ability of residents to obtain appropriate services and supports that will provide them an opportunity to lead more fulfilling and more independent lives outside the IMD. Discharge planning is not regularly conducted. Furthermore, residents receive virtually no education or information about the limited alternatives to nursing homes.
55. IMD residents are typically not given a choice of which doctors and pharmacies to use. Residents' doctors and pharmacies are chosen by the facility.
56. IMD operators usually serve as the representative payee for residents and thus control the residents' finances. As the representative payees, the operators receive residents' Supplemental Security Income ("SSI") checks directly from the government and distribute to residents the small personal needs allowance the residents are permitted to retain from these checks. This "personal needs allowance" is usually $30.00 a month, or about $1.00 per day. The remaining amount is retained for use by the IMD. This renders residents completely dependent upon the IMD for all basic needs.
57. IMDs provide little or no rehabilitative treatment designed to promote recovery, independence and integration into the community. Some IMD residents are able to participate in work programs, where they hold "jobs" inside the facility; however, those who hold these positions are only allowed to work for short periods of time each day.
58. IMDs lack a sufficient number of trained staff necessary to. provide adequate care to individuals with mental illness and to provide them with the opportunities to lead happy, independent, and productive lives.
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59. Many IMD residents are subject to Behavior Management Programs ("BMPs"). These BMPs are similar to those behavior management systems used in psychiatric hospitals. A resident's freedom to leave the facility is restricted based on the staff's assessment of how the individual complies with institutional rules. In short, residents must meet the behavioral standards set by the institution in order to obtain greater freedom. Residents who fail to perform required activities or who violate the rules are punished by having their liberties restricted.
NAMED PLAINTIFFS Ethel Williams
60. Plaintiff Ethel Williams has been a resident of Monroe for approximately thirteen years, or since she was discharged from the John J. Madden Mental Health Center. Ms. Williams maintains close contact with her children and grandchildren. In addition, Ms. Williams spends her weekends with her brother and sister-in-law; she takes her medication independently while staying with her family. Ms. Williams is alert, active, and attends a day program five days a week. In the past, Ms. Williams has worked within the retail industry.
61. Ms. Williams wishes to leave Monroe and to live in a more integrated community setting, in order to accelerate her rehabilitation and to lead a more independent life. Professionals familiar with Ms. Williams's circumstances have indicated that she is ready to live in the community and that continued institutionalization is unnecessary.
62. Defendants, however, have failed to provide Ms. Williams with community services. Defendants have also failed to provide meaningful, adequate, and periodic assessments of Ms. Williams's potential for placement in the most integrated commJlnity setting available. Ms. Williams has repeatedly told the staff of Monroe that she wishes to leave, and facility records indicate her desire to live more independently. Her medical records and progress notes indicate that she is a good candidate for placement in an integrated community setting.
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However, Defendants fail to ensure that Ms. Williams receives adequate discharge planning and fail to provide opportunities for her to lead a more independent and more productive life.
63. Monroe has a Behavior Management Program that has four levels. Ms. Williams entered Monroe at "Level One"; however, she has complied with institutional rules to the point where she has been "awarded" a "Level Four" status. As a "Level Four" resident, Ms. Williams is permitted to be outside Monroe for most of the day in order to, for example, visit family members.
64. Ms. Williams has repeatedly expressed an interest in returning to the community. She does not require nursing care in an institutional setting. She could live in the community if she were provided with the types of home and community-based supports and services currently provided in Illinois. However, Defendants have failed to ensure adequate discharge planning for Ms. Williams, even though she has demonstrated skills (e.g., working in the retail industry) that would enable her to succeed in more independent living.
65. Ms. Williams has no significant physical health needs being addressed by Monroe.
Jan WrightseU 66. Plaintiff Jan Wrightsell, has been a resident of Monroe since early 2002, when she was discharged from the psychiatric unit of Chicago's St. Joseph's Hospital. Ms. Wrightsell attends a day program five days a week, and is responsible for cooking lunch for fellow residents and staff. She has been diagnosed with schizophrenia and has a history of major recurrent depression. Ms. Wrightsell maintains close contact with her family, aIld has substantial prior work experience as a sales clerk. She is college-educated, composes poetry and loves to care for animals.
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67. Ms. Wrightsell wishes to leave Monroe in order to live in a more integrated community setting, in order to accelerate her rehabilitation and to lead a more independent life. Professionals familiar with her circumstances, and with whom Ms. Wrightsell has interacted in her day programs, have indicated that she is ready to live in a less restrictive program in the community and that continued institutionalization is unnecessary.
68. Defendants, however, have failed to provide Ms. Wrightsell with community services. Defendants have provided only formulaic assessments of Ms. Wrightsell that lack any individual pl~ or review. Ms. Wrightsell has repeatedly told the staff of Monroe that she wishes to leave; however, facility records fail to reflect her desire to live more independently. Defendants fail to ensure that Ms. Wrightsell receives adequate discharge planning and fail to provide opportunities for her to lead a more independent and more productive life. Instead, Defendants have consigned her to an institution that refuses to help her progress toward social independence.
69. Ms. Wrightsell entered Monroe at "Level One"; however, she has complied with institutional rules to the point where she has been "awarded" a "Level Three" status. As a "Level Three" resident, Ms. Wrightsell is only permitted to leave Monroe on her own for between two and six hours per day, depending on the length of the pass assigned to her at any given time. Although she has fulfilled "Level Four" requirements (e.g., successfully graduating from several day programs), Monroe refuses to grant her "Level Four" privileges.
70. Ms. Wrightsell has repeatedly petitioned Monroe to move to "Level Four." However, her petitions have been regularly denied by Monroe staff with neither sound nor written reason. In fact, Ms. Wrightsell's privileges have often been suspended based on arbitrary reasons (e.g., bringing her winter coat to the cafeteria).
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71. Ms. Wrightsell has repeatedly expressed an interest III returning to the community. She does not require nursing care in an institutional setting. She could live in the community if she were provided with the types of home and community-based supports and services currently provided in Illinois. These supports and services provided in the community would cost the same or less than the amount currently spent on Ms. Wrightsell's care. However, Defendants fail to ensure adequate discharge planning for Ms. Wrightsell, even though she has demonstrated skills (e.g., working as a cook in the day program she now attends) that would enable her to succeed in more independent living. Ms. Wrightsell has no significant physical health needs being addressed by Monroe.
Donell Hall 72. Plaintiff Donell Hall is 43 years old and has been a resident of Greenwood Care for approximately twelve years. He was placed in Greenwood Care after he was discharged from Chicago-Read Hospital. Mr. Hall is very physically active; in fact, he formerly served in the United States Army, from which he received an honorable discharge. Mr. Hall has been diagnosed with bipolar disorder and schizophrenia. 73. Mr. Hall wishes to leave Greenwood Care and to live in a more integrated community setting, in order to accelerate his rehabilitation and to lead a more independent life. Professionals familiar with Mr. Hall's circumstances have indicated that he is ready to live in the community and that continued institutionalization is unnecessary. Prior to living at Greenwood Care, he owned his own apartment and car. He is able to manage his money and cook for himself, as he had done prior to his institutionalization at Greenwood Car~. 74. Defendants, however, have failed to provide Mr. Hall with community services. Defendants have also failed to provide meaningful, adequate, and periodic assessments of Mr. Hall's potential for placement in the most integrated community setting available. Mr. Hall has
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repeatedly told the staff of Greenwood Care that he wishes to leave, and facility records indicate his desire to live more independently. His medical records and progress notes indicate that he is a good candidate for placement in an integrated community setting. However, Defendants fail to ensure that Mr. Hall receives adequate discharge planning and fail to provide opportunities for him to lead a more independent and more productive life.
75. Mr. Hall has expressed an interest in returning to the community. He does not require nursing care in an institutional setting. He could live in the community if he were provided with the types of home and community-based supports and services currently provided in Illinois. However, Defendants have failed to ensure adequate discharge planning for Mr. Hall, even though he has demonstrated skills that would enable him to succeed in more independent living. He currently works at the Anixter Center, his day program, five days a week.
76. Mr. Hall has no significant physical health needs being addressed by Greenwood Care.
Edward Brandon 77. Plaintiff Edward Brandon is 25 years old and has been a resident of Wilson Care for approximately two years. Mr. Brandon has been diagnosed with schizophrenia. He has formerly held several jobs in retail stores; currently, Mr. Brandon works, Monday through Friday, at the Anixter Center where he buses tables. He maintains close contact with his grandmother and cousins. 78. Mr. Brandon wishes to leave Wilson Care and to live in a more integrated community setting, in order to accelerate his rehabilitation and to lead a_more independent life. Professionals familiar with Mr. Brandon's circumstances have indicated that-with appropriate supports and services-he is ready to live in the community and that continued
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institutionalization is unnecessary. Every day he is subjected to second-hand smoke, as he has no control over whether his roommates can smoke in his room.
79. Defendants, however, have failed to provide Mr. Brandon with community services. Defendants have also failed to provide meaningful, adequate, and periodic assessments of Mr. Brandon's potential for placement in the most integrated community setting available. Facility records indicate his desire to live more independently. His medical records and progress notes indicate that he is a good candidate for placement in an integrated community setting. However, Defendants fail to ensure that Mr. Brandon receives adequate discharge planning and fail to provide opportunities for him to lead a more independent and more productive life.
80. Mr. Brandon has expressed an interest in returning to the community. He does not require nursing care in an institutional setting. He could live in the community if he were provided with the types of home and community-based supports and services currently provided in Illinois. However, Defendants have failed to ensure adequate discharge planning for .Mr. Brandon, even though he has demonstrated skills (e.g., working at Anixter Center) that would enable him to succeed in more independent living.
81. Mr. Brandon has no significant physical health needs being addressed by Wilson Care.
The Roles of Defendants 82. Defendants are all charged with administering and/or overseeing long-term care services for individuals with mental illness in both institutional and community settings. 83. In the more than six years since Olmstead was decided, Defendants have failed to develop a comprehensive and effective working plan for identifying people with mental illness unnecessarily institutionalized in nursing homes and IMDs and moving them into more
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integrated settings. The Defendants are responsible for the operation and administration of their respective agencies and are ultimately responsible for ensuring that their agencies provide services in conformity with the ADA and the Rehabilitation Act. 20 ILL. COMPo STAT. 2407120(c). However, no viable working plan has been produced nor have Defendants evidenced a commitment to action which would show "ongoing progress toward community placement." See Penn. P.P.A., Inc. v. Penn. Dept. ofPublic Welfare, 422 F.3d 151, 159 (3rd Cir. 2005).
84. DHS' duties also include monitoring the care given by nursing homes, including IMDs, and providing input into the licensing process on such matters as staffing and program content.
85. DHS is responsible for the screening of individuals such as Plaintiffs and those similarly situated, who are being considered for admission to nursing facilities and who are ages 18 through 59, and for individuals aged 60 and over who have a severe mental illness, in order to determine whether nursing facility care is appropriate. 77 Ill. Adm. Code § 300.615.
86. DPH, in conjunction with DHS, is required to develop minimum standards for licensing facilities for people with mental illness, including IMDs. 210 ILL. COMPo STAT. 45/3-203.
87. DPH is also responsible for regulating and inspecting all nursmg facilities, including IMDs, in Illinois. DPH is required to develop a curriculum for training nursing assistants and habilitation aides. 210 ILL. COMPo STAT. 45/3-206.
88. DPH is responsible for promulgating rules governing the provision of services by nursing facilities to residents who have a serious mental illness, including assessment, care planning, treatment, and discharge planning. 210 ILL. COMPo STAT. 45/3-202.2.
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89. DHFS classifies nursing homes as IMDs and administers funding to IMDs as appropriate. 89 Ill. Adm. Code §§ 145.20, 145.40, 140.500. DHFS is required to verify the need for group care for individuals with severe mental illness in accordance with 89 Ill. Adm. Code § 140.642. DHFS is also required to approve the placement in the nursing facility based upon a determination that a need for a nursing level of care exists and that the nursing facility meets state law requirements. DHFS authorizes payment to the nursing facility. 89 Ill. Adm. Code § 140.510.
90. Defendants do not consider the needs of Plaintiffs or other similarly situated IMD residents for more integrated housing when they plan for development of integrated supported housing programs.
91. Despite the fact that they are responsible for ensuring appropriate placement of individuals with mental illness and for establishing appropriate discharge procedures, Defendants have not provided Plaintiffs, and those similarly situated, with information that will enable them to seek services in a more integrated setting or to lead more independent and more productive lives in society.
92. In violation of their statutory duties, Defendants are administering their programs and providing services in a manner that supports and encourages the segregation of individuals with mental illness, by inappropriately relying on IMDs.
93. Defendants have developed and funded long-term residential programs that enable individuals to receive services in settings far more integrated than nursing homes.
94. However, Defendants have failed to develop and fund sufficient capacity in these residential programs, forcing into nursing homes thousands of individuals with mental illness who could, and would, prefer to be served in more integrated settings.
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95. Defendants have policies, rules and practices that discourage the placement of individuals with mental illness in integrated residential settings and, instead, perpetuate the current system of IMDs. Changing these policies, rules and practices would not be a fundamental alteration under Defendants' service system for people with psychiatric disabilities. Services can be provided in a more integrated setting at a cost equivalent to or less than the average cost of providing services to a nursing home or IMD resident. Moreover, Defendants already provide the services needed by Plaintiffs and those similarly situated to other people with mental illness in the community.
96. Defendants have not informed Plaintiffs and class members of their right to community services. Nor have Defendants evaluated Plaintiffs and those similarly situated to find the most integrated setting appropriate to their needs. Defendants have arbitrarily denied community services to those Plaintiffs and class members capable of living more independently. Defendants have no plan for achieving the goal of having sufficient services in the community.
Count I Violation of the Americans With Disabilities Act Mandate To Administer Services And
Programs In The Most Integrated Setting 97. Plaintiffs and class members repeat and reallege paragraphs 1-96 above. 98. Plaintiffs and those similarly situated are individuals with serious mental illnesses. Each Plaintiff and class member has a mental impairment that substantially limits one or more major life activity including, but not limited to, self care and interaction with others. Plaintiffs and those similarly situated also have a record of such mental illnesses, and are regarded by Defendants as having such mental illnesses. 99. Plaintiffs and class members are residents of facilities classified as IMDs, and each is qualified to participate in a more integrated community residential program that would
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meet their mental health needs. Plaintiffs and class members are, therefore, qualified individuals with disabilities within the meaning of 42 U.S.C. § 12131(2).
100. Defendants Blagojevich, Adams, Stone, Whitaker and Maram are responsible for the operation of public entities covered by Title II of the ADA. 42 U.S.c. §§ 12131(1)(A) and (B).
101. The United States Department of Justice has promulgated regulations under Title II of the ADA stating that "a public entity shall administer services, programs and activities in the most inte.wated setting appropriate to the needs of qualified individuals with disabilities." See 28 C.F.R. § 35.130(d).
102. Defendants are obligated under the ADA to administer Illinois programs in a manner that supports the availability of services and programs in the most integrated setting for individuals with disabilities.
103. Serving Plaintiffs and class members III a more integrated setting can be reasonably accomplished.
104. Defendants have failed to meet this obligation. Defendants instead require that Plaintiffs and class members, in order to receive mental health care, live segregated in IMDs, even though these facilities are not the most integrated settings appropriate to their needs.
Count II Violation Of The Americans With Disabilities Act's Prohibition On Using Methods Of
Administration That Subject Plaintiffs To Discrimination 105. Plaintiffs and class members repeat and reallege paragraphs 1-96 above. 106. Plaintiffs and class members are residents of IMDs and each is qualified to participate in a more integrated community residential program that meets their mental health needs.
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107. Title II of the ADA, 42 U.S.C. §§ 12131, 12132, prohibits Defendants from discriminating against individuals with disabilities.
108. Regulations implementing Title II of the ADA, 28 C.F.R. § 35.130(b)(3), provide that "a public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) That have the effect of sUbjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity'~program with respect to individuals with disabilities ...."
109. Defendants, however, utilize methods of administration that have the effect of subjecting Plaintiffs and those similarly situated to discrimination. Defendants continue to utilize methods of administration that perpetuate Plaintiffs' and class members' placement in IMDs, rather than facilitating their receipt of services in the most integrated setting appropriate to their needs.
Count III Failure to Administer Services in the Most Integrated Setting Appropriate in Violation of
the Rehabilitation Act 110. Plaintiffs and class members repeat and reallege paragraphs 1-96 above. 111. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, provides: No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 112. DPH, DHFS, DMH and DHS are recipients of Federal financial assistance. 113. Defendants Blagojevich, Adams, Stone, Whitaker and Maram are responsible for the operation of DPH, DHFS, DMH and DHS.
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Case 1:05-cv-04673 Document 40 Filed 04/26/2006 Page 27 of 31
114. Plaintiffs and class members reside in IMDs and are each qualified to participate in a more integrated community residential program that meets their mental health needs.
115. Section 504 of the Rehabilitation Act requires Defendants to serve individuals with disabilities in the most integrated setting appropriate to their needs.
116. Serving Plaintiffs and class members in more integrated settings can be reasonably accomplished.
117. Defendants have violated Section 504 of the Rehabilitation Act by failing to administer se.EVices to Plaintiffs, and those similarly situated, in the most integrated setting appropriate to their needs.
Count IV Violation of the Rehabilitation Act's Prohibition on Using Methods of Administration That
Subject Plaintiffs to Discrimination 118. Plaintiffs and class members repeat and reallege paragraphs 1-96 above. 119. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 prohibits Defendants from discriminating against individuals with disabilities. 120. Regulations implementing Section 504 of the Rehabilitation Act provide that "a recipient may not, directly or through contractual or other arrangements, utilize criteria or methods of administration: (i) That have the effect of subjecting qualified handicapped persons to discrimination on the basis of disability; [or] (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program with respect to handicapped persons ...." 45 C.F.R. § 84.4(b). 121. DPH, DHFS, DMH and DHS are recipients of Federal financial assistance. 122. Defendants Blagojevich, Adams, Stone, Whitaker and Maram are responsible for the operation ofDPH, DHFS, DMH and DHS.
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Case 1:05-cv-04673 Document 40 Filed 04/26/2006 Page 28 of 31
123. Defendants utilize methods of administration that have had the effect of sUbjecting Plaintiffs and class members to discrimination. Defendants utilize methods of administration that perpetuate the current IMD system rather than facilitate the receipt of services in the most integrated setting appropriate to the needs of Plaintiffs and class members, which have resulted in Plaintiffs' placement in an IMD, a setting that is segregated and inappropriate.
Prayer for Relief WHE~FORE, the Plaintiffs, individually and on behalf ofthe class, respectfully request that the Court: A. Enter an order certifying the named Plaintiffs as representatives for a class consisting of those persons in Illinois who:
(i) have mental illness and qualify for long-term care services; (ii) with appropriate supports and services, could live in the community, and (iii) who are (a) institutionalized in IMDs. B. Declare that Defendant's failure to provide Plaintiffs with services in the most integrated setting appropriate to their needs violates the Americans with Disabilities Act and Section 504 ofthe Rehabilitation Act. C. Issue a permanent injunction: (i) requiring Defendants to inform individuals with mental illnesses in the
State that they may be eligible for community services and that they have the choice of such services; (ii) requiring Defendants promptly to determine Plaintiffs' and class members' eligibility for community services;
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(iii) prohibiting Defendants from arbitrarily denying eligibility to individuals who are capable ofliving in a community setting with appropriate supports and services; and
(iv) requiring Defendants promptly to provide eligible Plaintiffs and class members with appropriate services sufficient to allow them to live in the most integrated setting appropriate to their needs.
D. Grant such other and further relief as this Court deems just and proper, including an award..9freasonable attorneys' fees, litigation expenses and costs.

Dated: April 26, 2006

Respectfully submitted,
/s/ Joseph M. Russell
AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS Benjamin S. Wolf 180 North Michigan Avenue Suite 2300 Chicago, lllinois 60601 Telephone: (312) 201-9740 Facsimile: (312) 201-9760
EQUIP FOR EQUALITY Barry C. Taylor Amy F. Peterson John W. Whitcomb Laura J. Miller 20 N. Michigan, #300 Chicago, IL 60602 Telephone: (312) 341-0Q22 Facsimile: (312) 341-0295
JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW Ira Burnim Jennifer Mathis
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Case 1:05-cv-04673 Document 40 Filed 04/26/2006 Page 30 of 31
Karen Bower 1101 15th Street, NW Suite 1212 Washington, DC 20005 Telephone: (202) 467-5730 Facsimile: (202) 223-0409 ACCESS LIVING Max Lapertosa Kenneth M. Walden 614 West Roosevelt Road Chicago, IL 60607 Telephone: (312) 253-7000 Facsimile: (312) 253-7001 KIRKLAND & ELLIS, LLP Donna M. Welch Joseph M. Russell TanaRyan Ann Chen 200 East Randolph Drive Chicago, IL 60601 Telephone: (312) 861-2000 Facsimile: (312) 861-2200 ATTORNEYS FOR PLAINTIFFS
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CERTIFICATE OF SERVICE
The undersigned attorney certifies that a true and correct copy of PLAINTIFFS' FIRST AMENDED COMPLAINT was served the 26th day of April, 2006 via the Court's Electronic Case Filing System and via First Class Mail on the following counsel for Defendants:
Thomas A. Ioppolo, AAG Office of the Illinois Attorney General 100 W. Randolph Street, 13th Floor Chicago, IL 60601 Facsimile: (312) 814-4425
Kerry R. Peck, Esq. Ray J. Koenig III, Esq. Peck, Bloom, Austriaco & Mitchell, LLC 105 W. Adams St., 31 st Floor Chicago, IL 60603 Facsimile: (312) 201-0803
/s/ Ann H. Chen Counsel for Plaintiffs

 
 Case 1:05-cv-04673 Document 256 Filed 04/29/10 Page 1 of 16

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

ETHEL WILLIAMS, et al., Plaintiffs, vs.
PAT QUINN, et al., Defendants.

)

)

)

No. 05 C 4673

)

)

Judge Hart

)

Magistrate Judge Denlow

)

)

)

PLAINTIFFS’ REPLY IN SUPPORT OF JOINT MOTION FOR PRELIMINARY APPROVAL OF CONSENT DECREE AND APPROVAL OF NOTICE PLAN

After nearly five years of litigation, Plaintiffs and Defendants have reached an agreement

that, if approved by this Court, will addr ess Illinois’ long-standing discrimination against thousands of people with mental illness and enhance the choices available to all Class Members,1

including Danny McLean and David Twom ey (“Objectors”). W hile the P roposed Consent

Decree (“Decree”) will guara ntee all Class Members the o pportunity to move to an appropriate

Community-Based Setting, nothing in the Decree re quires anyone to move against his or her

wishes. Objectors’ unfounded fears that expan ding options for all will com promise Objectors’

ability to re main institutionalized provides no le gal basis to deny relief to th e Class Mem bers

who desire—and have a legal right—to move to the community.

To justify final app roval, a clas s-action settlement must be “fair, reasonab le, and

adequate.” Fed. R. Civ. P. 23(e)(1). To ensure that standard is met, the district court judge must

conduct a f airness hearing and “exercise the highe st degree of vigilance in scrutinizing [the]

proposed settlement[] . . . .” Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 653

(7th Cir. 20 06) (citation omitted). Prelim inary approval, in contrast, requir es only that the

1 Capitalized terms are used as defined in the Decree.

Case 1:05-cv-04673 Document 256 Filed 04/29/10 Page 2 of 16
proposed settlement fall “within th e range of possible approval.” Kaufman v. Am. Express Travel Related Servs. Co., Inc. , 264 F.R.D. 438, 447 (N.D. Il l. 2009) (citation omitted); see also Carnegie v. Household Int’l, Inc. , 371 F. Supp. 2d 954 ( N.D. Ill. 2005). Accordingly, at the preliminary approval stage, the court need only perform a “more summary version” of the finalapproval analysis. Kessler v. Am. Resorts In t’l Holiday Network, Ltd. , Nos. 05 C 5944, 07 C 2439, 2007 WL 4105204, *5 (N.D. Ill. 2007).
Objectors have provided no argum ent that would justify withholding prelim inary approval of the Decree. Contrary to their assertions, the Decr ee provides a far more detailed description of its requirem ents than an injunc tive order would likely provide if Plaintiffs prevailed at trial. Further, the Decree requires those evaluating Class Members for placement in the community to con sult with the Class Mem ber’s psychiatrist and other m ental health professionals where appropriate, and to consider the Class Member’s medical condition. Finally, the proposed award of attorneys’ fees is reasonable and appr opriate and represents only a fraction of the value of the fees actually incurred by Plaintiffs’ counsel in prosecuting this case.
The centerpiece of Objectors ’ argument is their assum ption that IM Ds are the only available “bridge” between “two extremes” – a “locked psychiatric ward” or “com plete independence in an apartment,” apparently without any services or supervision. (Resp. at 3) But the Decree mandates a system that is the opposite of the one Objectors fear. The Decree m akes clear that the needs of all Class Mem bers who choose to leave an IMD will be carefully evaluated and that thos e Class Me mbers will receive all of the approp riate services they need. (See Decree ¶¶ 6–7) Contrary to Objectors’ speculation, there is every reason to believe that former IMD residents will receive much better services an d supports outside of the IMDs than they receive now. (E. Jones Report at 10; D. Jones report at 9, 15)
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BACKGROUND The named plaintiffs file d this action on Augus t 15, 2005, and this Court certified the case as a class action on November 13, 2006. Plaintiffs contend that Defendants are violating the integration mandates of Title II of the Am ericans with Disabilities Act, 42 U.S.C. § 12132 and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), which require states to adm inister services, programs and activ ities in the m ost integrated setting appropr iate to the needs of individuals with disabilities. As the Supreme Court affirmed in Olmstead v. L.C. , “unjustified institutional isolation of persons with disabilities is a form of discrimination.” 527 U.S. 581, 600 (1999). Plaintiffs allege that Illinois m aintains a segregated, outm oded system for serving individuals with mental illness that needlessly forces thousands of people to live in IMDs. Plaintiffs have conducted extensive disc overy and worked with five experts who submitted three reports describing the systemic problems caused by Illinois’ heavy reliance on IMDs. Plaintiffs’ expert Elizabeth Jones, who visited all 26 IMDs, detailed the dehum anizing practices that persist in the IMDs an d the general lack of choice, privacy, and social interactions the residents endure. (E. Jones Re port at 3–6) Plaintiffs’ clinical experts, two psychologists and a psychiatrist from Yale University, concluded that the overwhelming majority of IMD residents are capable of living in much more integrated settings with the level of supports and services that are available in typical community-based pr ograms. (Yale Report at 21–23, 28) The Yale experts and Elizabeth Jones agreed that m ost IMD residents would choose to leave the IMD if given the opportunity. (E. Jones Report at 6–9; Yale Report at 18–20) Th e experts also found that a substantia l majority of class m embers could live in their own apar tments as part of the State’s “supportive housing” progr ams. (Yale Report at 7; see D. Jones Report at 15) Dennis Jones, a form er mental health com missioner in tw o states who served as Plaintiffs’ expert on mental health systems and costs, reported that it is less expensive for Illinois to serve people in
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the community than in IMDs, that the State wo uld realize significant cost savings by affording IMD residents the opportunity to live in com munity settings, and that the State has m any community service providers with the capability and willin gness to serve IMD residents. (D. Jones Report at 5, 15–16, 21–23)
After the close of discovery, the parties entered into settlement negotiations at the Court’s urging and ultim ately came to an agreem ent. The agreement, memorialized in th e proposed Decree, offers fair, reas onable, and adequate re lief to all Class Members. Under the Decree, Class Members will receive independent Evaluations to determine the supports and services they need to live in a Comm unity-Based Setting. Following the Eval uation, those who do not choose to remain in an I MD will rece ive an ind ividualized Service Plan and will be of fered the opportunity to move into the community over a five-year period. Those who choose to remain in an institution can later change their minds and move into the community.
The issues in this case are not novel. The di strict court for the Eastern District of Ne w York recently ordered the state of New York to provide thousands of residents of large private institutions for individuals with mental illness (“Adult Homes”) with the opportunity to live in community-based settings. Disability Advocates, Inc. v. Paterson ( “DAI”), No. 03-CV-3209 (NGG), slip op. (S.D.N. Y. March 1, 2010) (Exhi bit 1). The Adult Ho mes at issue in DAI are very similar to IMDs. After presiding over a fi ve-week bench trial, the court ruled that New York was in violation of the Am ericans with Disabilities Act and the Rehabilitation Act by failing to provide Adult Hom e residents “the opportunity to r eceive services in the m ost integrated setting appropriate to their needs. ” DAI, 653 F. Supp. 2d 184, 187–88 (E.D.N.Y. 2009). Plaintiffs believe that they would achieve a similar result if this case went to trial.
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ARGUMENT I. The Decree Is Sufficiently Detailed
Objectors contend that the Decr ee is no t sufficiently detailed, suggesting that the Implementation Plan “should com e now, not later.” (Resp. at 5) This argu ment ignores the fact that the Decree prov ides as m uch, and likely more , detail than a court order would contain if Plaintiffs prevailed at trial. 2 Due to principles of federalis m and com ity, the usual course in institutional reform cases such as this one is to permit state government defendants to subm it a proposed plan providing details about how they would remedy their unlawful conduct. The court in DAI adopted this approach, 653 F. Supp. 2d at 313, reasoning that “t he court must give appropriate consideration to principles of federalism, as ‘remedies that intrude unnecessarily on a state’s governance of its own affairs should be avoi ded.’ Unnecessarily detailed remedial orders may inject f ederal courts into th e business of ‘regulating a state’s adm inistration of its own facilities,’” id. at 312 (citations om itted). Oth er cases are in agreem ent. See, e.g., Lewis v. Casey, 518 U.S. 343, 362 (1996) (“[T]he strong consider ations of comity th at require giving a state court system that has convicted a defendant th e first opportunity to correct its own errors . . . also require giving the States the first opportunity to correct the errors m ade in the internal administration of their prisons.”); Memisovski v. Maram , No. 92-CV- 1982, slip op. (N.D. Ill. Sept. 14, 2004) (ordering defendants to subm it proposed remedial plan following finding that state violated federal law) (Exhibi t 2). As a p ractical matter, Defendants are in the best position to hammer out the details of implementation without unnecessary court micromanagement at this juncture, as “courts are ill-equipped ‘for for mulation and day-to-day adm inistration of detailed plans’ to assure compliance with the law.” DAI, 653 F. Supp. 2d at 312 (citation omitted).
2 To the extent that the Decree does not make clear that the Parties will file the Implementation Plan with the Court, the Plaintiffs are willing to amend the language of the Decree to specify that the Implementation Plan will b e filed with the Court regardless of whether or not any disputes arise between the Parties.
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Notably, the order granting injunctive relief in DAI covers roughly the sam e categories that the Decree cov ers, but it does so in ju st eleven pag es with m uch less detail. Compare Decree with DAI, No. 03-CV-3209 (NGG), slip op. (S.D.N.Y. March 1, 2010). For example, the Decree devotes six subparagraphs to Service Plans, describing what they must contain, who will develop them, their focus and timing, (Decree ¶ 7), while the DAI order simply provides that the state must arrange for providers of community-bas ed services to identify “the services each eligible individual needs to successf ully transition to and live in supported housing and arrange for the individual to timely receive those services,” DAI, No. 03-CV-3209 (NGG), slip op. ¶ 6(g) (S.D.N.Y. March 1, 2010).3
The Decree requires D efendants, with i nput from the court-a ppointed Monitor and Plaintiffs, to develop an Im plementation Plan that describes in detail the specific tasks, services, supports, timetables, protocols and other actions necessary to achieve com pliance with th e Decree. (Decree ¶¶ 11, 12) The Court retains th e authority to resolve any disputes about the content of the Implementation Plan after the part ies and the Monitor have had an opportunity to review and discuss it. (Id. ¶ 12) To require the parties to negotiate and the Court to evaluate and approve each of these details at this stage would be inappropriate and unworkable. II. The Decree Provides For Input by Approp riate Professionals in Transition-
Planning Ignoring what the Decree actually says, Objectors argue that placem ent of Class Members should be a medical decision and that the Decree “rem oves the medical component” from the placement decision. (Resp. at 6) This argum ent mischaracterizes the Decree and is in
3 The level of detail Objectors seek is far more than would even been appropriate for the Implementation Plan, much less a consent decree. Questions such as how residents will get their medications and who will check in on them (Resp. at 5) will be answered on an individual basis in each Class Member’s Service Plan (the general contents of which the Decree clearly sp ells out). Similarly, how rent will be handled, (id.), will depend on the type of setting the Class Member is transitioned to, which will be determined on a case-by-case basis. Other questions regarding who will conduct the Evaluations and draft the Service Plans, (id. at 6), are answered in the Decree, (see Decree ¶¶ 6(b), 7(c)).
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conflict with the view of mental health experts. The Decree specifically requi res that Class Members’ m edical condition be taken into
account during the Evaluation process: “Each Evaluation shall include . . . an assessment of the Class Member’s medical condition as it bears on his or her a ppropriateness for placement in a Community-Based Setting . . . .” (Decree ¶ 4(v iii) (emphasis added)) Evaluations must also include “consultation with the Class Member’s psychiatrist and/or other professional staff where appropriate.” ( Id. (emphasis added)) These Ev aluations, for each C lass Member choosing to participate, will form the basis of the Class Member’s Service Plan, which will describe the type of Community-Based Setting and Community-Based Services appropriate for the Class Member. (See id. ¶¶ 7(a), (b)) The evaluations will be supervised by Qualified Professionals employed by the same Pre-Admission Screening agencies that currently determine eligibility for admission to IMDs. (Decree ¶¶ 4(viii), (xvii)) Objectors’ assertion that the Decree does not take into account Class Members’ medical condition in the placement process is simply inaccurate.
Further, mandating that Evaluators cons ult with the IMD’s psyc hiatrist in every case would not be appropriate because many Class Members do not have m eaningful contacts with a psychiatrist. The Yale experts found, for example, that records for the majority of class members did not reflect any input from the resident in treatment planning and that 98% of class m embers’ records did not show evidence of appropriate efforts at discharge planning and comm unity integration. (Yale Report at 26–27) Public reports paint an even bleaker pict ure of the work of IMD psychiatrists.4 Thus, the Decree requires consulta tion with a psychiatrist only where
4 For ex ample, Dr. Mich ael Reinstein, a psychiatrist who works at sev eral IMDs in Illinois, faces repeated allegations of inappropriately medicating his patients. C hristina Jewett, Doctor Gives Risky Drugs at High Rate, Chicago Tribune, Nov. 10, 2009, available at http://www.chicagotribune.com/health/chi-drugs-doctorreinsteinnov10,0,4609781.story. Dr. Reinstein reportedly sees “an improbably large number of patients,” and he has admitted that he sees 60 patients each day. Id. C onsultation with Dr. Reinstein or ot her psychiatrists who h ave almost no familiarity with their patients would add little to the discussion about what n eeds and services their patients would require in Community-Based Settings.
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appropriate. (Decree ¶ 4(viii)) The Decree also provides for consultation with other professional staff where appropriate, along with “other appropriate people of the Cla ss Member’s choosing.” (Id.) Where a Class Member has a legal rep resentative, the representative must be consulted in developing the Class Mem ber’s Service Plan. ( Id. ¶ 7(c)) These provisions provide am ple protection to Class Members.
Objectors mistakenly emphasize th e importance of the residents’ medical conditions to the exclusion of other issues. The Yale experts found that 99% of residents have no m edical reason to rem ain in IMDs. (Yale Report at 2 4–25) In addition, the notion that psychiatrists affiliated with the IMDs should exert substantial control over decisions about placement in the community is at odds with the co nsensus of m ental health expert s that institutions are rarely appropriate for treatment of persons with m ental illness. Governor Pat Quinn’s Nursing Hom e Safety Task Force (“N HSTF”), which recen tly concluded a four-m onth investigation into the State’s nursing hom e system at the Governor’s be hest, reported that “[m] ental health experts unanimously advised the task force that nursi ng homes are inappropriate places to help individuals recover from mental illness.” (NHSTF Final Report at 4 (E xhibit 3)) The NHSTF further noted that “[i]n the m ajority of cases , the m ost appropriate setting will be supported housing in the comm unity.” ( Id. at 1) This conclu sion is consistent with the findings of Plaintiffs’ clinical experts. ( See Yale Report at 23) Even Defe ndants’ expert Dr. Jeffrey Geller acknowledged that all of the resi dents he interviewed could safe ly transition out of IMDs. ( See Geller Report at 9)
Objectors’ assumption that IMDs are part of a “continuum of care,” and that the only more integrated alternative to IMDs is “comp lete independence” without adequate services (Resp. at 3), ignores the consensus of experts that appropriate serv ices for the vast m ajority of
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people with mental illness can be brought to them wherever they live. ( See Yale Report at 6–7; D. Jones Re port at 15–16; see also DAI , 653 F. Supp. 2d at 251–53) Class Mem bers’ mental health and m edical needs are in distinguishable from those of people who live su ccessfully in integrated, community-based se ttings all over the country. (D. Jones Report at 14–16; Yale Report at 6) Illinois officials themselves have acknowledged that thousands of people in IMDs could live safely and receive the services they need in its perm anent supportive housing programs. ( See D. Jones Report at 10) Further, the court in DAI found that to the extent a “continuum of care” m odel (involving m oving people fr om more restrictive to less restrictive settings over time) exists in New York, th e Adult Homes would be not part of such a m odel because institutional settings do not prepare peo ple for com munity-living. 653 F. S upp. 2d at 253. In any event, the Decree re quires Evaluators to assess Class Members’ medical condition in order to account for any Class Mem bers with severe medical problems that would warrant a skilled-nursing-facility level of care.5 And Class Members’ choices to decline an Evaluation and ultimately to remain in an IMD will be respected. (Decree ¶¶ 6(a), 7(b)) III. Implementation of the Decree Will Save the State of Illinois Money Without Forcing
Class Members to Move to the Community Objectors also argue that the Decree lacks detail on how the settlem ent will be funded. (Resp. at 6) W hile the Decree do es not and need not d ictate how Defendants will fund its implementation,6 it is c lear that the Decree will save the State money. Plaintiffs’ expert Dennis Jones concluded that C ommunity-Based Settings are “significantly less costly to the State than
5 According to Dennis Jones, individuals with “severe medical conditions that warrant continuous nursing care” are “largely precluded by admission standards from living in IMDs in Illinois.” (D. Jones Report at 15) 6 Consent decrees mandating that state officials co mply with federal laws do not ordinarily intrude on the state’s taxing and spending authority by specifying how th e state w ill choose to fund its effo rts at co mpliance. Th at constraint, however, does not limit a federal court’s authority to enforce the terms of a consent decree. See Frew v. Hawkins, 540 U.S. 431, 440 (2004) (“Federal courts are not reduced to approving consent decrees and hoping for compliance. Once entered, a consent decree may be enforced.”); Wis. Hospital Ass’n. v. Reivitz, 820 F. 2d 863, 868 (7th Cir. 1987) (“Agai nst a state that violates a valid court dec ree the court has th e power to iss ue any order necessary to enforce the decree, including an order to pay.”).
9

Case 1:05-cv-04673 Document 256 Filed 04/29/10 Page 10 of 16

serving individuals in IMDs.” (D. Jones Report at 17-18) W hen considering costs for ancillary

services (e.g., “costs for physi cians, pharmacy services, inpatient hospitalization,

transportation”), the savings are even greater. ( Id. at 18–19) These savings are due, in part, to

the fact that the S tate is not eligible for a f ederal Medicaid match for the m oney it spends on

most IMD residents, while federal m atching funds are available when individuals are served in

the community. (See id. at 17–18) Although Defendants’ fina ncial expert reached a different

conclusion, Defendants’ counsel has acknowledge d that their expert double-counted certain

costs, making the expert’s conclusions unreliable. (4/15/10 Hr’g Tr. at 4:18–5:1)

These conclusions are bolstered by the findings of the NHSTF and the court in DAI. The

NHSTF reported that affording i ndividuals the opportunity to m ove from institutions to the

community will save th e State money: “The fede ral government reimburses the state, currently

at 62 percent, for services provided to peopl e with serious m ental illness who qualify for

Medicaid and live in the community. There is no reim bursement for individuals 19–64 who

reside in m ental institutions. The state can re alize significant savings when tho se residents

transition to community settings.” (NHS TF Final Report at 16) The court in DAI similarly

found that it is less expensive for New York

to serve people in the community than in

institutional settings. 653 F. Supp. 2d at 285.

Objectors assert that Defenda nts’ motivation in settling th is case is to save the State

money and that the settlem ent threatens Objectors’ ability to rem ain in ins titutions. W hile

bringing the State into com pliance with f ederal law will s ave the State m oney, the Decre e

supports the right of Class Mem bers to live in th e setting of their choice. Consequently, under

the Decree, no one will be forced to move to a Community-Based Setting against his or her will,

and all Class Members will be able to choose between an institutional and a Community-Based

10

Case 1:05-cv-04673 Document 256 Filed 04/29/10 Page 11 of 16
Setting for which they are qualified. (Decree ¶ 7(b), 8) The Decree expands options for all Class Members and ensures that they have enough information to make informed choices that reflect their personal needs and preferences.
Objector’s suggestion that the Decree must provide a “funding guarantee” for those who choose to s tay in an IMD is m eritless. The Decree does not dim inish Objectors’ rights to institutional care in any way and, because compliance with the Decree will save the State money, there will be more funds available to serve Object ors and other people with m ental illness if the State chooses to do so. Objectors cannot reasonably expect more than that. They do not point to any legal entitlement to being serve d in an IMD, and whatever rights they might have to live in that setting are no t altered by the D ecree. Ob jectors’ speculation that other Class Members’ choices to move to the community will dim inish their opportunity to remain in institutions is no grounds to deny preliminary approv al. Class m embers who are sa tisfied with discrim inatory conduct cannot stop others who are not satisfied from remedying systemic discrimination. See, e.g., Imasuen v. Moyer , No. 91-C-5425, 1992 WL 26705, at *2 (N.D. Ill. Feb. 7, 1992) (“[T]he fact that some class members may be satisfied with an unconstitutional system and would prefer to leave violations of their rights unremedied” is not a reason to deny class certification); Rolland v. Patrick, No. 98-30208, 2008 WL 4104488, at *8 (D. Ma ss. Aug. 19, 2008) (stating that decertifying class after approval of settlement would deprive disabled class members confined in institutions of the opportunity to move into the community); Wyatt v. Poundstone , 169 F.R.D. 155, 161 (M.D. Ala. 1995) (stating that denying cl ass certification because some institutional residents opposed community placem ent “would, in effect, preclude th e use of the class action device in many of the very cases where it could be most advantageous”).
Although they did not m ention it in their Response, at the last status hearing Objectors'
11

Case 1:05-cv-04673 Document 256 Filed 04/29/10 Page 12 of 16
counsel referred to Judge Holderman's decision decertifying a class in Ligas v. Maram, No. 05 C 4311 as a reason to deny or at least delay prelim inary approval. In that case the nam ed plaintiffs sought to represent a class of people with developm ental disabilities who we re housed in Intermediate Care Facilities or who were living at home but were a t risk of institutionalization. Several years after the Court certified the case as a class action, the parties negotiated a proposed settlement. More than 2,000 objections were filed by legal representatives of class members who said they w ere satisfied with liv ing in the f acilities. Bec ause of the concerns raised in those objections, Judge Holderm an decertified the class after the fairness hearing, findin g that "th e settlement negotiated by the plaintiffs and th e defendants is considerably broader than was necessary to address the needs of th e class con templated by the p laintiffs' lawsuit." Ligas v. Maram, No. 05 C 4331, slip op. (July 7, 2009) (Exhibit 4). The parties and former objectors are now attempting, at the Court' s request, to negotiate a settlem ent that would satisfy all of their interests.
Ligas involved very different circumstances than this case, for several reasons. First, the proposed Decree in this case does not include the provisions that most troubled Judge Holderman in Ligas. The proposed Decree does not, for exam ple, require class members to participate in evaluations if they do not want them; nor does it m andate a broad restructuring of the way Illinois receives applications and as sesses eligibility for services. Compare id. with Decree ¶ 6(a). Second, thousands of class members objected to the proposed settlement in Ligas, many of them voicing their concerns before the Cour t granted prelim inary approval of the proposed settlement, whereas only two class m embers have filed objections to the proposed Decree in this case. There is no reason to expect that situation will change significantly prior to the f airness hearing in light of the fact th at a substantial majority of class members surveyed by Plaintiffs'
12

Case 1:05-cv-04673 Document 256 Filed 04/29/10 Page 13 of 16
experts have expressed the desire to move out of the IMDs. (E. Jones Report at 6–9; Yale Report at 18–20) Third, people with m ental illness need different serv ices that are delivered by a completely different system than p eople with de velopmental disabilities in Inter mediate Care Facilities. The federal Medicaid system does not match the State’s paym ents to IMDs, for example, and there is no federal entitlem ent to IMD services, whereas the federal governm ent does pay a substantial portion of the costs of In termediate Care Facilities for people with developmental disabilities. ( See D. Jones Report at 6–7, 16–19) Although Plaintiffs’ counsel believes that the decision to decertify the class in Ligas was wrong, that case was very different than this one. IV. The Fee Payment Provisions are Reasonable and Appropriate
Finally, Objectors suggest that the fees and costs are “large amounts” that require “some support and explanation,” “especially in the context of a pro bono case.” (Resp. at 7) This argument has no basis in the facts or the law and is not grounds to deny preliminary approval.
The amount of fees and costs is both reasona ble and appropriate, particularly where the $1,990,000 award represents an agreed-upon comprom ise that is less than 50% of the value of the fees actually incurred. These fees represent a great deal of legal work performed over nearly five years of contested litigation. Counsel undertook substantial discovery, including analyzing hundreds of thousands of pages of docum ents, propounding and responding to a multitude of written discovery, cond ucting more than 30 de positions, and conducting extensiv e third-party discovery. Moreover, Plaintiffs’ counsel work ed extensively with five experts who subm itted detailed reports, defended the depositions of several of those experts, and deposed Defendants’ experts. Given the tim e and effort involved, the attorney’s f ees award is more than reasonable, and it is co mparable to fees awarded in sim ilar cases. See, e.g., K.L. v. Edgar, No. 92 C 5722, 2000 WL 1499445 (N.D. Ill. Oct. 6, 2000) (awardi ng the Roger Baldwin Foundation of ACL U
13

Case 1:05-cv-04673 Document 256 Filed 04/29/10 Page 14 of 16
and its pro bono counsel $1.9 million in attorneys’ fees in a class action on behalf of people with mental illness residing in state-operating institutions); Gaskin v. Pennsylvania, 389 F. Supp. 2d 628, 643 (E .D. Pa. 2005) (find ing a $1.825 m illion fee award in cons ent decree was fair and reasonable where plaintif fs had act ually expended over $2.6 million); Memisovski v. Ma ram, No. 92-C-1982, slip op. (N.D. Ill. Feb. 21, 2006) (awarding public interest organizations and their pro bono counsel $4.4 m illion in fees and expens es in a clas s action M edicaid case involving access to medical care for children) (Exhibit 5).
The payment of attorney’s fees and costs to the prevailing party in civil rights litigation such as this is firm ly grounded in the law. The Am ericans with Disabilities A ct and the Rehabilitation Act, along with other federal laws, provide for the paym ent of reasonable attorney’s fees and cos ts to the p revailing party. See 42 U.S.C. § 12205 (“any action or administrative proceeding commenced pursuan t to this chapter, the court or agency, in its discretion, may allow the prevailing party, other th an the United States, a reasonable attorney' s fee, including litigation expens es, and costs”); 29 U.S.C. § 794a (b) (similar); 42 U.S.C. § 1988 (similar); Fed. R. Civ. P. 54(d). These provision s are not lim ited to judgm ents on the m erits; “settlement agreements enforced through a consent decree” like the one proposed here “m ay serve as the basis for an award of attorney’s fees.” See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept. of Health & Human Res. , 532 U.S. 598, 604 (2001) (citation om itted). Such relief is particularly appropriate here, where counsel have obtained m eaningful, systemic relief for thousands of individuals with mental disabilities.
That Plaintiffs are represented by attorneys from four non-profit legal organizations and a private law firm does not preclude Plaintiffs from seeking fees and costs under the relevant feeshifting statutes. Courts consistently have re jected arguments that attorneys who work on a pro
14

Case 1:05-cv-04673 Document 256 Filed 04/29/10 Page 15 of 16

bono basis—whether as part of a nonprofit legal orga nization or as private counsel that agrees to

work pro bono—should be denied the opportunity to seek fees, even though they did not expect

payment from the clien t. For example, in a civ il rights case challenging the State of Illinois’

operation of nine institutions for people with mental illness, the Court rejected an argument that

plaintiffs should not recover for the tim e invested in the case by private law firm s when those

firms had agreed to donate their fees. K.L., 2000 WL 1499445, at *9. The court held that it is

entirely appropriate for nonprofit legal organizations and private law firms that agree to work pro

bono to recover attorney’s fees under Section 1988. Id. (“There is no que stion that nonprofit

legal organizations are entitled to seek fees under Section 1988, even if they charge none to their

clients. W e see no distinction between nonprofit legal organizations and private counsel that

agrees to work pro bono.” ( citations omitted)); see also, e.g. , Blum v. Stenson , 465 U.S. 886,

893–95 (1984) (upholding use of prev ailing market rate to award f ees to Legal Aid Society in

civil rights action).

Furthermore, no law firm or individual at torney will re ceive any portion of these

attorney’s fees and cos ts. The entire am ount will be paid to non-profit o rganizations to defray the expense of future civil rights litigation, advocacy, and other activities in the public interest.7

CONCLUSION

For these reasons and those stated in their joint Motion, Plaintiffs respectfully request that

the Court enter an order granting preliminary approval of the Decree.

Dated: April 29, 2010

Respectfully submitted,

By: s/ Angela D. Marston

7 Lawyers from the private law firm Kirkland & Ellis LLP have agreed to donate any fee award (net out-of-pocket expenses) to the Roger Baldwin Foundation of ACLU, a non-profit organization that, among other things, advocates for the rights of people with disabilities in Illinois.
15

Case 1:05-cv-04673 Document 256 Filed 04/29/10 Page 16 of 16
THE ROGER BALDWIN FOUNDATION OF THE AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS Benjamin S. Wolf Lori N. Turner 180 North Michigan Avenue, Suite 2300 Chicago, Illinois 60601 Telephone: (312) 201-9740 Facsimile: (312) 201-9760
EQUIP FOR EQUALITY Amy F. Peterson Laura Miller John Whitcomb 20 N. Michigan, #300 Chicago, IL 60602 Telephone: (312) 341-0022 Facsimile: (312) 341-0295
ACCESS LIVING OF METROPOLITAN CHICAGO Edward Mullen 115 West Chicago Avenue Chicago, IL 60610 Telephone: (312) 640-2100 Facsimile: (312) 640-2139 TTY (312) 640-2102
THE BAZELON CENTER FOR MENTAL HEALTH LAW Ira Burnim Jennifer Mathis Karen Bower 1101 15th Street, NW, Suite 1212 Washington, DC 20005 Telephone: 202-467-5730 Facsimile: 202-223-0409
KIRKLAND & ELLIS LLP Donna M. Welch, P.C. Joseph M. Russell Elizabeth J. Kappakas Angela D. Marston 300 North LaSalle Chicago, IL 60654 Telephone: (312) 862-2000 Facsimile: (312) 862-2200
ATTORNEYS FOR PLAINTIFFS
16

 
 Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 1 of 45 PageID #:2060

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ETHEL WILLIAMS, et al.,

)

)

Plaintiffs,

)

No. 05 C 4673

)

vs.

)

Judge Hart

)

PAT QUINN, et al.,

)

)

Defendants.

)

ORDER This matter is before the Court on the Joint Motion for Preliminary Approval of Consent Decree and Approval ofNotice Plan ("Motion"), submitted by the parties hereto. Having reviewed the Motion and supporting Memorandum, and being otherwise fully advised, IT IS HEREBY ORDERED: I. The Court preliminarily finds that the Modified Proposed Consent Decree attached hereto as Exhibit A is within the appropriate range of fairness, adequacy and reasonableness. 2. The Court approves the Notice Plan attached hereto as Exhibit B. Notice shall occur by publication, posting on the internet, and sending written notice via first class mail as follows:
(a) Defendants shall cause the notice set forth in Exhibit B-1 to this Order to be published in: Chicago Sun-Times, Daily Herald, Southtown Star, Pioneer Press, Peoria Journal Star, Rockford Register Star, Belleville News-Democrat, Springfield State Journal-Register and Southern Illinoisan. Publication shall occur on at least a single business day within fifteen (15) business days from the date of preliminary approval of the Consent Decree.

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 2 of 45 PageID #:2061
(b) Defendants shall post notice in the form attached hereto as Exhibit B-2 on the website of the Illinois Department of Human Services, Division of Mental Health (www.dhs.state.il.us/page.aspx) within five (5) business days from the date of preliminary approval of the Consent Decree and maintain that posting through and including the date of the fairness hearing set by this Court.
(c) Plaintiffs' counsel shall post notice in the form attached hereto as Exhibit B-2 on the websites of Equip for Equality (www,equipjorequality,org), Access Living (www,accesslivingorg), the American Civil Liberties Union of Illinois (www,acluil.org), and the Bazelon Center for Mental Health Law (www,bazelon.org) within five (5) business days from the date of preliminary approval of the Consent Decree and maintain that posting through and including the date of the fairness hearing.
(d) Defendants shall arrange and pay for notice to be sent via first class mail in the form attached hereto as Exhibit B-2 to all preadmission screening agencies throughout the State, each of the disability rights advocacy organizations identified in the parties' Notice Plan, and all 26 private Institutions for Mental Diseases located in the State of Illinois with guidance for distribution to all IMD residents and their guardians, if any. All notices must be postmarked within ten (1 0) business days from the date of preliminary approval of the Consent Decree,
3, Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, the Court will hold a fairness hearing regarding the fairness, reasonableness and adequacy of the proposed Decree on
'1-7-3.110 at ID:" a.m, All class members, guardians or others who wish to participate in the

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 3 of 45 PageID #:2062
fairness hearing, or comment on or object to the proposed Decree, may file with the Court a written
submission by ~ -10 ~3.010 and serve a copy of the submission on:
Benjamin S. Wolf Roger Baldwin Foundation of ACLU, Inc. 180 N. Michigan Avenue, Suite 2300 Chicago, Illinois 60601
The parties may file responses to the written submissions on or before t' -,j). '1- __0/0

Entered: _5=--_)--'..7_-__, 2010

William T. Hart United States District Judge

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 4 of 45 PageID #:2063

EXHIBIT A

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

ETHEL WILLIAMS, et aI., Plaintiffs, vs.
PAT QUINN, et aI., Defendants.

)

)

)

)

No. 05 C 4673

)

)

)

Judge William T. Hart

)

Magistrate Judge Morton Denlow

)

)

)

)

MODIFIED PROPOSED CONSENT DECREE

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 5 of 45 PageID #:2064
•
TABLE OF CONTENTS INTRODUCTION AND BACKGROUND ............................................................................... 1 DECREE. ....................................................................................................................................... 2 I. JURISDICTION ......................................................................................................................... 2 II. PURPOSE.. ..................................................................................................2 III. CLASS DEFINITION ............................................................................................................. 2 IV. DEFINITION OF TERMS ...................................................................................................... 2 V. THE MENTAL HEALTH SERVICES SYSTEM .................................................................... 7 VI. INDIVIDUALIZED EVALUATIONS AND PLANNING FOR INDIVIDUALS RESIDING IN IMDS ...................................................................................................................... 7 VII. OUTREACH......................................................................................................................... 15 VIII. IMPLEMENTATION.......................................................................................................... 15 IX. MONITORING AND COMPLIANCE.................................................................................. 18 X. NAMED PLAINTIFFS ............................................................................................................ 20 XI. ATTORNEYS' FEES AND COSTS...................................................................................... 20 XII. MISCELLANEOUS PROVISIONS ..................................................................................... 21

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 6 of 45 PageID #:2065
INTRODUCTION AND BACKGROUND Plaintiffs" a class of Illinois residents with Mental Illness living in Institutions for Mental Diseases ("IMDs"), filed this lawsuit on August IS, 2005, seeking declaratory and injunctive relief to redress violations of Title II of the Americans with Disabilities Act ("ADA"), 42 u.S.c. §§ 12131, 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). Plaintiffs allege that they are needlessly segregated and institutionalized in IMDs, where they are forced to live with dozens-and often hundreds-of other people with Mental Illness, in violation of the ADA and the Rehabilitation Act requirements to administer services in the most integrated appropriate setting. See generallv Williams v. Blagojevich, 2006 WL 3332844 (N.D. Ill. Nov. 13,2006). Plaintiffs allege that Defendants have denied them the opportunity to live in integrated settings where they could lead more independent and more productive lives in their own communities. Plaintiffs seek injunctive relief (l) requiring Defendants to inform Plaintiffs that they may be eligible for community services and have a choice of such services, (2) requiring Defendants to promptly determine eligibility for such services, (3) prohibiting Defendants from arbitrarily denying eligibility for services, and (4) requiring Defendants to promptly provide appropriate services that allow Plaintiffs to live in the most integrated setting appropriate. Defendants deny liability and specifically deny that they have violated the ADA or the Rehabilitation Act. Therefore, upon all of the foregoing, and the Court being otherwise fully advised, the Court hereby ORDERS, ADJUDGES and DECREES as follows:
1 Capitalized terms set forth herein are defined in Section IV, "Definition of Terms." Noncapitalized terms will have the meaning ordinarily attributed to them and shall be separate and apart from the terms defined in Section IV, "Definition of Terms."
I

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 7 of 45 PageID #:2066

DECREE

I. JURISDICTION

1.

The Court has jurisdiction over this litigation pursuant to 28 U.S.c. § 1331 and

28 U.S.C. § 1343.

II. PURPOSE

2. The purpose of this Consent Decree is to assure that Defendants provide

Plaintiffs with the opportunity to receive the services they need in the most integrated setting

appropriate and to promote and ensure the development of integrated settings that maximize

individuals' independence, choice, opportunities to develop and use independent living skills,

and afford the opportunity to live similar lives to individuals without disabilities.

III. CLASS DEFINITION

3. The Class is defined as:

All Illinois residents who are eighteen (18) years old or older and who:

(a) have a Mental Illness;

(b) are institutionalized in a privately owned Institution for Mental Diseases; and

(c) with appropriate supports and services may be able to live in an integrated community setting.

IV. DEFINITION OF TERMS

4. As used herein, the following terms have the following meanings:

i)

"Class" and "Class Members" mean the persons who, as of the date of

Approval of the Consent Decree or at any time in the future while this

lawsuit is pending and during the time covered by the Decree, meet the

definition set forth in Section III, above.

2

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 8 of 45 PageID #:2067

ii) "Community-Based Services" means those services provided under the

Illinois Medicaid State Plan, as well as the services described in the

Medicaid Community Mental Health Services Program administered by

the Illinois Department of Human Services' Division of Mental Health

and authorized pursuant to 59 Ill. Adm. Code Part 132 (hereafter

referenced as Ru1e 132), in effect as of the date of Approval of the Decree,

including any amendments thereto.

iii) "Community-Based Setting" means the most integrated setting

appropriate

for a person with Mental Illness, where the setting is designed to promote

independence in daily living, economic self-sufficiency and the ability to

interact with non-disabled persons to the fullest extent possible. A

Community-Based Setting may include: (1) Permanent Supportive

Housing; (2) independent housing with the Class Member's family or

friends; (3) other independent housing not owned or operated by a social

service entity; or (4) any supported or supervised residential service

within the DMH service taxonomy.

iv) "Community-Service Provider" or "Provider" means a provider certified

by the Illinois Department of Human Services for the provision of

Community-Based Services.

v)

"Court" means the United States District Court for the Northern District

of Illinois, Eastern Division.

vi) "Decree" means this Consent Decree.

3

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 9 of 45 PageID #:2068
vii) "Defendants" means the Governor of the State of Illinois, the Secretary of the Illinois Department ofl-Iuman Services, the Director of the Division of Mental Health of the Illinois Department of Human Services, the Director of the Illinois Department of Public Health, the Director of the Illinois Department of Healthcare and Family Services, and any of their successors.
viii) "Evaluation" means an assessment provided by a Qualified Professional under contract with the State to residents of IMDs or potential residents of IMDs, and includes Evaluations conducted (i) to implement this Decree, (ii) as part of a PASRR Process, (iii) in response to a report of significant change in a resident's physical or mental condition, (iv) in response to a request from a resident, or (v) as part of a regular assessment of residents. Each Evaluation shall include, although not be limited to, an assessment of the Class Member's medical condition as it bears on his or her appropriateness for placement in a Community-Based Setting, a consultation with the Class Member's psychiatrist and/or other professional staff where appropriate, and a consultation with other appropriate people of the Class Member's choosing.
ix) "Implementation Plan" means the plan set forth in Subsection VIII.1l. below.
x) "l11inois Medicaid State Plan" or "State Plan" means the plan that was submitted by the State of Illinois to the United States Department of Health and Human Services, Centers for Medicare and Medicaid Services,
4

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 10 of 45 PageID #:2069
In accordance with Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396v, in effect as of the date of the Approval of the Decree, including any amendments. xi) "Institution for Mental Diseases" or "IMD" means a privately owned long-term care facility classified as an Institution for Mental Diseases for purposes of claiming Federal Medicaid matching funds. xii) "Mental Illness" means serious mental illness as defined In 77 Illinois Administrative Code, Chapter I, Section 300.4000. xiii) "Monitor" means the person or entity appointed by the Court pursuant to Section IX hereof to perform the functions more fully described therein. xiv) "Named Plaintiffs" means the following people, each of whom the Court certified as a class representative in the litigation: Ethel Williams, Jan Wrightsell, Edward Brandon, and Gilbert Parham. xv) "Parties" means Plaintiffs and Defendants, collectively. xvi) "Plaintiffs" means the Named Plaintiffs and Class Members, collectively. xvii) "Pre-Admission Screening and Resident Review (PASRR) Agency" means any independent agency that (1) contracts with the State to perform, in conformance with federal screening requirements, preadmission screening and resident reviews on persons with Mental Illness who may be placed or currently reside in an IMD, and (2) as a condition of its contract with the State, has received sufficient training and/or has sufficient experience providing services to demonstrate a comprehensive
5

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 11 of 45 PageID #:2070

understanding of the available residential options, including Permanent

Supportive Housing, and Community-Based Services.

xviii) "Pre-Admission Screening and Resident Review (PASRR) Process"

means the eligibility, admission and assessment process for individuals

who may be or have been placed in an IMD.

xix) "Qualified Professional" means persons who are appropriately licensed,

credentialed, trained and employed by a PASRR Agency.

xx)

"Pemlanent Supportive Housing" or "PSH" refers to integrated

permanent housing with tenancy rights, linked with flexible Community-

Based Services that are available to consumers when they need them, hut

are not mandated as a condition of tenancy. For purposes of this Decree,

PSH includes scattered-site housing as well as apartments clustered in a

single building, but no more than 25% of the units in one building with

more than four (4) units may be used to serve PSH clients known to have

Mental Illness. For buildings with two (2) to four (4) units, no more than

50% of the units may be used to serve PSH clients known to have Mental

Illness. However, during the first five years after finalization of the

Implementation Plan, up to 75 Class Members may be placed in buildings

where more than 25% of the units serve PSH clients known to have

Mental Illness if those buildings were used to serve PSH clients prior to

March 1,2010. After the first five (5) years following the finalization of

the Implementation Plan, all Class Members who are being served in PSH

6

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 12 of 45 PageID #:2071
shall be offered the opportunity to reside in buildings that comply with the 25% or 50% unit limits set forth above in this subparagraph. xxi) "Service Plan" as used in this Decree means a plan containing a description of goals, including transition to Community-Based Settings, and strategies that will be employed and services provided to achieve those goals. xxii) "State" means the State of Illinois. V. THE MENTAL HEALTH SERVICES SYSTEM 5. Development of Community Capacity. Defendants shall ensure the availability of services, supports and other resources of sufficient quality, scope and variety to meet their obligations under the Decree and the Implementation Plan. Defendants shall implement sufficient measures, consistent with the preferences, strengths and needs of Class Members, to provide Community-Based Settings and Community-Based Services pursuant to the Decree. VI. INDIVIDUALIZED EVALUATIONS AND PLANNING FOR INDIVIDUALS RESIDING IN IMDS 6. Evaluations. a) Within two (2) years of the finalization of the Implementation Plan described below, every Class Member will receive an independent, professionally appropriate and person-centered Evaluation of his or her preferences, strengths and needs in order to determine the CommunityBased Services required for him or her to live in PSH or another appropriate Community-Based Setting. Any Class Member has the right to decline to take part in such Evaluation. Any Class Member who has
7

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 13 of 45 PageID #:2072

declined to be evaluated has the right to receive an Evaluation any time

thereafter on request.

b) Defendants shall ensure that Evaluations are conducted by Qualified

Professionals as defined in this Decree.

c) Defendants shall ensure, as provided in the Implementation Plan, that all

Class Members shall be informed about Community-Based Settings,

including Permanent Supportive Housing, and Community-Based

Services available to assist individuals in these settings, and the financial

support Class Members may receive in these settings.

d) After the second year following finalization of the Implementation Plan,

the Evaluations described in Subsection 6(a) shall be conducted annually.

As part of each Class Member's annual Evaluation, the reasons for any

Class Member's opposition to moving out of an IMD to a Community-

Based Setting will be fully explored and appropriately addressed as

described in Section VII. Any Class Member who has received an

Evaluation but has declined to move to a Community-Based Setting may

request to be reassessed for transition to a Community-Based Setting any

time thereafter.

7.

Service Plans.

a) Based on the results of the Evaluations described above, Defendants shall

promptly develop Service Plans specific to each Class Member who is

assessed as appropriate for transition to a Community-Based Setting. Each

Service Plan shall be periodically updated to reflect any changes in needs

8

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 14 of 45 PageID #:2073
and preferences of the Class Member, including his or her desire to move to a Community-Based Setting after declining to do so, and shall incorporate services where appropriate to assist in acquisition of basic and instrumental activities of daily living skills and illness self-management. Acquisition of such skills shall not be a prerequisite for transitioning out of the IMD. b) For each Class Member who does not oppose moving to a CommunityBased Setting, the Service Plan shall, at a minimum, describe the Community-Based Services the Class Member requires in a CommuuityBased Setting, including the services the Class Member will need to transition to a Community-Based Setting, and a timetable for completing that transition. If there has been a determination that a Class Member is not currently appropriate for PSH, the Service Plan shall specifY what services the Class Member needs that could not be provided in PSH and shall describe the Community-Based Services the Class Member needs to live in another Community-Based Setting that is the most integrated setting appropriate. c) The Service Plan shall be developed by a Qualified Professional in conjunction with the Class Member and his or her legal representative. The Qualified Professional also shall consult with other appropriate people of the Class Member's choosing. d) Each Service Plan shall focus on the Class Member's personal vision, preferences, strengths and needs in home, community and work
9

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 15 of 45 PageID #:2074

environments and shall reflect the value of supporting the individual with

relationships, productive work, participation in community life, and

personal decision-making.

e) The Service Plan shall not be limited by the current availability of

Community-Based Services and Settings; provided, however, that nothing

in this subparagraph obligates Defendants to provide any type of

Community-Based Service beyond the types of Community-Based

Services included in the State Plan and Rule 132.

f)

The Service Plan shall be completed within sufficient time to provide

appropriate and sufficient transitions for Class Members in accordance

with the benchmarks set forth in the Decree.

8. Benchmarks for Transitions for Individuals Residing in IMDs.

a) Within five (5) years of the finalization of the Implementation Plan, all

Class Members who have been assessed as appropriate for living in a

Community-Based Setting will be offered the opportunity to move to a

Community-Based Setting.

b) Within one (l) year of finalization of the Implementation Plan, no

individual with Mental Illness shall be admitted to an IMD without a pre-

screening having first been conducted through the PASRR Process and an

initial Service Plan completed. Defendants will ensure that the PASRR

Process: identifies and assesses individuals who may be appropriate for

placement in a Community-Based Setting; identifies Community-Based

Services that would facilitate that placement; and ensures that approved

10

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 16 of 45 PageID #:2075
admissions to IMDs are for only those IMDs that can provide treatment consistent with the individual's initial Service Plan and consistent with the goal of transition to a Community-Based Setting. After the first five (5) years following the finalization of the Implementation Plan, no individual with Mental Illness whose Service Plan provides for placement in Community-Based Settings shall be housed or offered placement in an IMD at public expense unless, after being fully informed, he or she declines the opportunity to receive services in a Community-Based Setting. c) By the end of the first year after the finalization of the Implementation Plan, Defendants will have: (I) offered placement in a Community-Based Setting to a minimum of 256 Class Members who are assessed as appropriate for living in a Community-Based Setting and who do not oppose moving to a Community-Based Setting; and (2) developed 256 PSH units for the benefit of Class Members. d) By the end of the second year after the finalization of the Implementation Plan, Defendants will have: (1) offered placement in a Community-Based Setting to a minimum of 640 Class Members (including the 256 referenced in subparagraph 8(c) above) who are assessed as appropriate for living in a Community-Based Setting and who do not oppose moving to a Community-Based Setting; and (2) developed 640 PSH units for the benefit of Class Members.
11

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e) By the end of the third year after the finalization of the Implementation Plan, Defendants will have: (l) offered placement to at least forty percent (40%) of all individuals who are assessed as appropriate for living in a Community-Based Setting and who do not oppose moving to a Community-Based Setting; and (2) developed the corresponding number of PSH units or other Community-Based Settings sufficient for these individuals. For purposes of this subparagraph, these individuals include the total of (I) all Class Members as of the end of the second year after the finalization of the Implementation Plan who are assessed as appropriate for living in a Community-Based Setting and who do not oppose moving to a Community-Based Setting, and (2) all former Class Members who have already transitioned from the IMD to a Community-Based Setting or to another community setting since finalization of the Implementation Plan.
t) By the end of the fourth year after the finalization of the Implementation Plan, Defendants will have: (1) offered placement to at least seventy percent (70%) of all individuals who are assessed as appropriate for living in a Community-Based Setting and who do not oppose moving to a Community-Based Setting; and (2) developed the corresponding number of PSH units or other Community-Based Settings sufficient for these individuals. For purposes of this subparagraph, these individuals include the total of (l) all Class Members as of the end of the third year after the finalization of the Implementation Plan who are assessed as appropriate
12

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 18 of 45 PageID #:2077
for living in a Community-Based Setting and who do not oppose moving to a Community-Based Setting, and (2) all former Class Members who have already transitioned from the IMD to a Community-Based Setting or to another community setting since finalization of the Implementation Plan, g) By the end of the fifth year after the finalization of the Implementation Plan, Defendants will have: (1) offered placement to one hundred percent (100%) of all individuals who are assessed as appropriate for living in a Community-Based Setting and who do not oppose moving to a Community-Based Setting; and (2) developed the corresponding number of PSH units or other Community-Based Settings sufficient for these individuals. For purposes of this subparagraph, these individuals include the total of (1) all Class Members as of the end of the fourth year after the finalization of the Implementation Plan who are assessed as appropriate for living in a Community-Based Setting and who do not oppose moving to a Community-Based Setting, and (2) all former Class Members who have already transitioned from the IMD to a Community-Based Setting or to another community setting since the finalization of the Implementation Plan, h) After the end of the fifth year following finalization of the Implementation Plan, Class Members who are assessed as appropriate for living in a Community-Based Setting, who do not oppose transition to a CommunityBased Setting and whose Service Plans provide for placement in
13

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 19 of 45 PageID #:2078
Community-Based Settings shall be offered the opportunity to move to those settings and shall receive appropriate services consistent with the Service Plan within one hundred and twenty (120) days of the date of the Service Plan. 9. Community-Based Settings and Community-Based Services a) PSH will be considered the most integrated setting appropriate for Class Members except that, (1) for any Class Members (i) who have severe dementia or other severe cognitive impairments requiring such a high level of staffing to assist with activities of daily living or self-care management that they cannot effectively be served in PSH, (ii) who have medical needs requiring a high level of skilled nursing care that may not safely be provided in PSH, or (iii) who present an imminent danger to themselves or others, the evaluator will determine the most integrated setting appropriate, which may be PSH or another setting, and (2) nothing in this paragraph shall prevent Class Members who can and wish to live with family or friends or in other independent housing that is not connected with a service provider from doing so. Those Class Members not transitioning from IMDs into PSH will have ongoing reassessments with treatment objectives to prepare them for subsequent transition to the most integrated setting appropriate, including PSH. b) Class Members who move to a Community-Based Setting will have access to all appropriate Community-Based Services, including but not limited to reasonable measures to ensure that their housing remains
14

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 20 of 45 PageID #:2079
available in the event that they are temporarily placed in a hospital or other treatment facility. c) Qualified Professionals shall inform Class Members of their options pursuant to subparagraphs 6(a), 6(d), and 7(b) of this Decree. Class Members shall not be subjected to any form of retaliation in response to any option selected nor shall they be pressured to refrain from exploring appropriate alternatives to IMDs. VII. OUTREACH 10. Defendants shall ensure that Class Members have the opportunity to receive complete and accurate information regarding their rights to live in Community-Based Settings and/or to receive Community-Based Services, and the available options and opportunities for doing so. The Implementation Plan shall describe the methods by which such information will be disseminated, the process by which Class Members may request services, and the manner in which Defendants will maintain current records of these requests. In addition to providing information, Defendants shall ensure that the Qualified Professionals conducting the Evaluations engage residents who express concerns about leaving the IMD with appropriate frequency. The Implementation Plan shall describe methods for engaging residents, including where appropriate, providing reasonable opportunities for residents to visit and observe Community-Based Settings. All costs for outreach shall be borne by Defendants. VIII. IMPLEMENTATION II. Overview and Contents of the Implementation Plan. Defendants, with the
15

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 21 of 45 PageID #:2080
input of the Monitor and Plaintiffs, shall create and implement an Implementation Plan to accomplish the obligations and objectives set forth in the Decree. The Implementation Plan must, at a minimum:
a) Establish specific tasks, timetables, goals, programs, plans, strategies and protocols to assure that Defendants fulfill the requirements of the Decree;
b) Describe the hiring, training and supervision of the personnel necessary to implement the Decree;
c) Describe the activities required to develop Community-Based Services and Community-Based Settings, including inter-agency agreements, requests for proposals and other actions necessary to implement the Decree;
d) Identify, based on information known at the time the Implementation Plan is finalized and updated on a regular basis, any services or supports anticipated or required in Service Plans formulated pursuant to the Decree that are not currently available in the appropriate quantity, quality or geographic location;
e) Identify, based on information known at the time the Implementation Plan is finalized and updated on a regular basis, any services and supports which, based on demographic or other data, are expected to be required within one year to meet the obligations of the Decree;
f) Identify any necessary changes to regulations that govern IMDs in order to strengthen and clarify requirements for services to persons with Mental
16

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 22 of 45 PageID #:2081
Illness and to provide for effective oversight and enforcement of all regulations and laws; and g) Describe the methods by which Defendants shall ensure compliance with their obligations under Paragraph 6 of this Decree, h) Describe the mechanisms by which Defendants shall ensure compliance with their obligations under Paragraph 10 of this Decree, 12, Within 135 days of Approval of the Decree, Defendants shall provide the Monitor and Plaintiffs with a draft Implementation Plan, The Monitor and Plaintiffs will participate in developing and finalizing the Implementation Plan, which shall be finalized within nine (9) months following Approval of the Decree. In the event the Monitor or Plaintiffs disagree with the Defendants' proposed Implementation Plan, the matter may be submitted to the Court for resolution, 13. The Implementation Plan shall be updated and amended annually, or at such earlier intervals as Defendants deem necessary or appropriate, The Monitor and Plaintiffs may review and comment upon any such updates or amendments. In the event the Monitor or Plaintiffs disagree with the Defendants' proposed updates or amendments, the matter may be submitted to the Court for resolution, 14. The Implementation Plan, and all amendments or updates thereto, shall be incorporated into, and become enforceable as part of the Decree, 15, In the event that any IMD seeks to discharge any Class Member before appropriate housing is available, including but not limited to circumstances in which an IMD decides to close, Defendants will ensure that those individuals are not left without appropriate housing options based on their preferences, strengths and needs.
17

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IX. MONITORING AND COMPLIANCE 16. Appointment of a Monitor. The Court will appoint an independent and
impartial Monitor who is knowledgeable concerning the management and oversight of programs serving individuals with Mental Illnesses. The Parties will attempt to agree on the selection of a Monitor to propose to the Court. If the Parties are unable to reach agreement, each party will nominate one person to serve as Monitor and the Court will select the Monitor. Within twentyone (21) days of Approval of the Decree, the Parties shall submit their joint recommendation or separate nominations for a Monitor to the Court. In the event the Monitor resigns or otherwise becomes unavailable, the process described above will be used to select a replacement.
17. Duties and Reporting. The Monitor's duties include evaluating Defendants' compliance with the Decree, identifying actual and potential areas of non-compliance with the Decree, mediating disputes between the Parties, and bringing issues and recommendations for their resolution to the Court. Within 60 days after the end of each year of service, the Monitor will report to the Court and the Parties regarding compliance with the Decree. Such reports shall include the infonnation necessary, in the Monitor's professional judgment, for the Court and Plaintiffs to evaluate Defendants' compliance or non-compliance with the terms of the Decree. The Monitor may file additional reports as necessary. Reports of the Monitor shall be served on all Parties.
18. Review and Evaluation of Data and Information. The Monitor shall review and evaluate Defendants' compliance with the tenns of the Decree. Not less than every six (6) months, Defendants shall provide the Monitor and Plaintiffs with a detailed report containing data and information sufficient to evaluate Defendants' compliance with the Decree and Defendants' progress towards achieving compliance, with the Parties and Monitor agreeing in
18

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 24 of 45 PageID #:2083
advance of the first report of the data and information that must be included in such report. Defendants will not refuse any request by the Monitor for documents or other information that are reasonably related to the Monitor's review and evaluation of Defendants' compliance with the Decree, and Defendants will, upon reasonable notice, permit confidential interviews of Defendants' staff or consultants, except their attorneys. The Monitor will have access to all Class Members and their records and files, as well as to those service providers, facilities, buildings and premises that serve, or are otherwise pertinent to, Class Members, where such access is reasonably related to the Monitor's review and evaluation of Defendants' compliance with the Decree. The Defendants shall comply with Plaintiffs' requests for information that are reasonably related to Defendants' compliance with the Decree, including without limitation requests for records and other relevant documents pertinent to implementation of the Decree or to Class Members. Plaintiffs also shall be permitted to review the information provided to the Monitor. All information provided to the Monitor and/or Plaintiffs pursuant to the Decree shall be subject to the Protective Order.
19. Compliance. In the event the Monitor finds Defendants not in compliance with the Decree, the Monitor shall promptly meet and confer with the Parties in an effort to agree on steps necessary to achieve compliance. In the event that Plaintiffs believe that Defendants are not complying with the terms of the Decree, Plaintiffs shall notifY the Monitor and Defendants of Defendants' potential non-compliance. The Monitor then shall review Plaintiffs' claims of actual or potential non-compliance and, as the Monitor deems appropriate in his or her professional judgment, meet and confer with Defendants and Plaintiffs in an effort to agree on steps necessary to achieve compliance with the Decree. If the Monitor and Parties agree, such steps shall be memorialized in writing, filed with the Court, and incorporated into, and become
19

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 25 of 45 PageID #:2084
enforceable as part of, the Decree. In the event that the Monitor is unable to reach agreement with Defendants and Plaintiffs, the Monitor or either Party may seek appropriate relief from the Court. In the event that Plaintiffs believe that Defendants are not in compliance with the Decree and that the Monitor has not requested appropriate relief from the Court, Plaintiffs may seek relief from the Court. The Monitor will not communicate with the Court without advance notice to the Parties.
20. Compensation of the Monitor. Defendants shall compensate the Monitor and his or her staff at their usual and customary rate subj ect to approval by the court. Defendants shall reimburse all reasonable expenses of the Monitor and the Monitor's staff, consistent with the guidelines set forth in the "Governor's Travel Control Board Travel Guide for State Employees." Defendants may seek relief from the Court if Defendants believe that any of the Monitor's charges is inappropriate or unreasonable. X. NAMED PLAINTIFFS
21. Within sixty (60) days of Approval of the Decree, Defendants shall offer each of the Named Plaintiffs the opportunity to receive appropriate services in the most integrated setting appropriate to his or her needs and wishes, including PSH. Provision of services to the Named Plaintiffs pursuant to this paragraph shall not be used to determine any other individual's eligibility for services under the ternlS of the Decree. XI. ATTORNEYS' FEES AND COSTS
22. In full settlement of all attorneys' fees incurred to date in connection with the litigation, Defendants shall pay, subject to court review and approval, $1,990,000.00 to Class Counsel. In full settlement of all out-of-pocket costs and expenses (not to include attorneys' fees) incurred to date by Class Counsel, Defendants shall pay to Class Counsel such costs and
20

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expenses incurred by Class Counsel through and including the Approval of the Decree and any

appeal thereof. Such amounts shall be distributed to Class Counsel in the manner set forth in

written instructions provided by Class Counsel. Furthermore, such amounts shall be set forth in

a Judgment Order to be entered by the Court. Defendants shall complete and submit all

paperwork necessary for payment of such amounts, plus applicable statutory post-judgment

interest, within five (5) business days after expiration of the time to appeal the fee award without

the filing of a Notice to Appeal or after the issuance of the mandate by the highest reviewing

court, whichever is later.

XII. MISCELLANEOUS PROVISIONS

23. Approval of the Decree. Approval of the Decree shall be deemed to occur on

the date the Court enters the Decree.

24. Costs of Notices. The cost of all notices hereunder or otherwise ordered by the

Court shall be borne by Defendants.

25. Signatories. Each undersigned representative of a Defendant to this litigation

and the Attorney General for the State of Illinois certifies that he or she is authorized to enter

into the terms and conditions of the Decree and to execute and bind legally such Defendant to

this document. Each undersigned representative of Plaintiffs certifies that he or she is authorized

to enter into the terms and conditions of the Decree and to execute and bind legally the Plaintiffs

to this document.

SO ORDERED THIS

DAY OF _ _ _ _ _, 20

United States District Judge

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EACH UNDERSIGNED PARTY enters into this Consent Decree in the matter of Williams v. Quinn, Case No. 05-4673, pending in the United States District Court for the Northern District of Illinois, Eastern Division. FOR THE PLAINTIFF CLASS: Date: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~ AS ATTORNEYS FOR PLAINTIFFS: Date: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ FOR DEFENDANT, GOVERNOR OF ILLINOIS: Date: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ FOR DEFENDANT, SECRETARY OF ILLINOIS DEPARTMENT OF HUMAN SERVICES: Date: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ FOR DEFENDANT, DIRECTOR OF DIVISION OF MENTAL HEALTH, ILLINOIS DEPARTMENT OF HUMAN SERVICES: Date: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES: Date: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ____
22

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 28 of 45 PageID #:2087 FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF DEPARTMENT OF PUBLIC HEALTH: Date: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ AS ATTORNEY FOR DEFENDANTS: Date: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
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Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 29 of 45 PageID #:2088

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

ETHEL WILLIAMS, et al., Plaintiffs, vs.
PAT QUINN, et al., Defendants.

)

)

)

No. 05 C 4673

)

)

Judge Hart

)

Magistrate Judge Denlow

)

)

)

NOTICE PLAN In furtherance of their agreement to seek this Court's approval of the Parties' proposed

Consent Decree, Plaintiffs Ethel Williams, Jan Wrightseil, Edward Brandon, and Gilbert

Parham, on behalf of themselves and all others similarly situated, and Defendants Pat Quinn,

Michelle R.B. Saddler, Lorrie Rickman Jones, Barry Maram and Damon T. Arnold,

(collectively, the "Parties"), propose that the notices more fully described below be approved by

the Court as fully comporting with the requirements of Federal Rule 23(e) and due process:

1. Defendants will cause the notice set forth in Exhibit B-1 to be published in the

following newspapers: Chicago Sun-Times, Daily Herald, Southtown Star, Pioneer Press,

Peoria Journal Star, Rockford Register Star, Belleville News-Democrat, Springfield State

Journal-Register and Southern Illinoisan. These publications have been identified due to their

broad circulation to readers throughout Illinois. Based on publicly available information, those

publications have a combined circulation of over 1 million readers. Publication will occur on a

single business day within fifteen (15) business days from the date of preliminary approval of the

Consent Decree.

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2. Defendants will post notice in the form set forth in Exhibit B-2 on the website of the Illinois Department of Human Services CDHS"). Division of Mental Health (www.dhs.state.il.uslpage.aspx) within five (5) business days from the date of preliminary approval of the Consent Decree and maintain that posting through and including the date of the fairness hearing. DHS's Division of Mental Health is responsible for providing comprehensive servIces to individuals with mental illness in Illinois, including various community-based settings.
3. Plaintiffs' counsel will cause notice in the form set forth in Exhibit B-2 to be posted on the websites of Equip for Equality (www.equipforequality.org), Access Living (www.accessliving.org), the American Civil Liberties Union of Illinois ("ACLU") (www.acluiLorg), and the Bazelon Center for Mental Health Law ("Bazelon") (www.bazelon.org), within five (5) business days from the date of preliminary approval of the Consent Decree and maintain that posting through and including the date of the fairness hearing. Equip for Equality is the notfor-profit corporation appointed by the State of Illinois to implement the federally-mandated Protection and Advocacy System in Illinois for persons with, among other things, psychiatric disabilities. Access Living is the Center for Independent Living serving the City of Chicago. ACLU is a non-profit, non-partisan organization dedicated to protecting civil rights and liberties guaranteed by the U.S. Constitution. Bazelon is a national, non-profit organization that advocates for the rights of individuals with mental illness and intellectual disabilities to participate fully and equally in their communities. Equip for Equality, Access Living, ACLU and Bazelon work directly with individuals with psychiatric disabilities.
4. Within ten (10) business days from the date of preliminary approval of the Consent Decree, Defendants will cause notice to be sent via first class mail in the form set forth
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Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 31 of 45 PageID #:2090
in Exhibit B-2 to all preadmission screening ('"PAS") agencies located in the State of Illinois. PAS agencies are responsible, by contract with the State of llIinois, for determining whether individuals with mental illness are eligible for placement institutional settings,
5. Within ten (10) business days from the date of preliminary approval of the Consent Decree, Defendants will cause notice to be sent via first class mail in the fonn set forth in Exhibit B-2 to the following disability rights-related organizations located in Illinois: AARP Illinois, Abraham Low Self-Help Systems, Anixter Center, Breaking Stigma Inc., Center for Disability and Elder Law, Catholic Archdiocese of Chicago - Commission on Mental Illness, CAUSE, Chicago Bar Association - Mental Health and Disability Law Committee, Chicago Coalition for the Homeless - Law Project, Chicago-Kent College of Law - Health & Disability Law Clinic, Community Behavioral Healtheare Association of Illinois, Community Counseling Centers of Chicago, Community Mental Health Board of Chicago, Community Mental Health Council, Community Renewal Society, Cook County Public Defender, Corporation for Supportive Housing - Illinois, Counseling Center of Lakeview, Deborah's Place, DePaul University College of Law - Civil Rights Clinic, Depression and Bipolar Support Alliance, Domestic Violence and Mental Health Policy Initiative, Health and Disability Advocates, Health and Medicine Policy Research Group - Center for Long Tenn Care Reform, Health Care Council of Illinois, Heartland Alliance - Heartland Health Outreach, Inc., Human Resources Development Institute, Illinois Association of Community Mental Health Authorities, Illinois Citizens for Better Care, lIlinois Guardianship and Advocacy Commission, Illinois Healthcare Association, Illinois Hospital Association, Illinois Legal Aid Online, Illinois Long-term Care Om budsman, lIlinois Mental Health Planning and Advisory Council, Illinois Network of Centers for Independent Living, Illinois Psychiatric Society, Illinois Psychological Association, lIlinois
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Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 32 of 45 PageID #:2091
Rural Health Association, Illinois Society for Clinical Social Work, Illinois State Bar Association - Mental Health Law Committee, Lawyers' Committee for Civil Rights Under Law, Jewish Vocational Services, John Howard Association, John Marshall Law School - Fair Housing Clinic, League of Women Voters of Illinois, Loyola University School of Law - Civitas ChildLaw Clinic, Lutheran Social Servies of Illinois, Mayor's Office for People with Disabilities (Chicago), Mental Health America of Illinois, Mental Health Consumer Education Consortium, Mental Health Services - DuPage County Health Department, Metropolitan Chicago Homeless Action Committee, National Alliance on Mental Illness of Greater Chicago, National Alliance on Mental Illness of Illinois, National Alliance on Mental Illness of South Suburbs of Chicago, National Association of Social Workers - Illinois Chapter, National Mental Health Voter Empowerment Project of Illinois, Next Steps, Northern Illinois University College of Law Elder Law Clinic, Northwestern School of Law - Bluhm Legal Clinic, Obsessive Compulsive Foundation of Chicago, Office of the Cook County Public Guardian, Sankofa Organization of Illinois, Inc., Southern Illinois University School Law - Civil Practice I Elderly Clinic, Supportive Housing Providers Association of JIIinois, Thresholds Psychiatric Rehabilitation Centers, Transitions, Trilogy, Inc., Trinity Services, University of Chicago Law School - Mandel Legal Aid Clinic, University of Illinois College of Law - Federal Civil Rights Clinic. These organizations work directly with individuals with mental illness.
6. Within fifteen (15) business days from the date of preliminary approval of the Consent Decree, Defendants will cause notice to be sent via first class mail in the form set forth in Exhibit B-2 to all 26 private IMDs in Illinois. The notice will be accompanied by a letter from Defendants requesting that the IMDs (I) post the notice within forty-eight (48) hours of receipt on bulletin boards, in dining areas and large recreational areas, and maintain such posting
-4 -

, . Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 33 of 45 PageID #:2092
through and including the date of the fairness hearing; (2) distribute a copy of the notice to each IMD resident and maintain a master list ofresident signatures verifYing receipt of the notice; and (3) take reasonable steps to make the notice available to residents and their family members and/or guardians.
7. All notices sent pursuant to Paragraphs 4 - 6. above, shall be sent in envelopes that indicate: "CONTAINS OFFICIAL LEGAL NOTICE."
-5-

, ' Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 34 of 45 PageID #:2093

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

ETHEL WILLIAMS, et aI., Plaintiffs, vs.
PAT QUINN, et aI., Defendants.

)

)

)

)

No. 05 C 4673

)

)

)

Judge William T. Hart

)

Magistrate Judge Morton Denlow

)

)

)

)

EXHIBIT B-1: FORM OF SUMMARY PUBLICATION NOTICE
LEGAL NOTICE OF PROPOSED CLASS ACTION CONSENT DECREE AND HEARING
If you are a person in Illinois 18 years of age or older with mental illness living in an Institution for Mental Disease ("IMD"), a class action lawsuit may affect your rights.
This Notice is being published by order of the United States District Court for the Northern District of Illinois to inform you of the proposed settlement of a class action lawsuit (Williams v. Quinn, Case No. 05-4673) set forth in a proposed Consent Decree ("Consent Decree") against the State of Illinois, the Illinois Department of Human Services, Illinois Department of Human Services, Division of Mental Health, the Illinois Department of Healthcare and Family Services and the Illinois Department of Public Health regarding services provided to individuals with mental illness residing in IMDs.
The parties to that lawsuit have reached a proposed Consent Decree that, if approved by the Court, would provide certain rights and benefits to eligible individuals with mental illness.
The Court will hold a hearing to consider whether to approve the proposed Consent Decree on _ _ _ _ _ at _ _ a.m. before the Honorable William T. Hart, United States District Judge, in the Dirksen Federal Building, 219 S. Dearborn Street, Room 2243, Chicago, Illinois 60604.
Who Is Included? You are a class member whose rights may be affected by the proposed Consent Decree if you are a person in Illinois 18 years of age or older who: (a) has a mental illness; (b) is institutionalized in a privately owned IMD; and (c) with appropriate supports and services may be able to live in an integrated community setting.

Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 35 of 45 PageID #:2094
, '
What Does the Proposed Settlement Provide? Plaintiffs and Defendants have asked the Court to enter an order that, if approved, would provide certain rights and benefits (as more fully described in the proposed Consent Decree) to eligible individuals with mental illness living in IMDs. The Consent Decree provides eligible class members the opportuoity to make meaningful informed choices about where they live; requires Defendants to ensure that supports and services are available to individuals with mental illness in integrated, non-institutional settings; and establishes procedures to avoid uojustified institutionalization.
How Can I Get More Information? A detailed Notice describing the proposed Consent Decree, the rights of class members and a copy of the proposed Consent Decree itself are available on the website of the Illinois Department of Human Services, Division of Mental Health: www.dhs.state.il.w/page.aspx. and on the website of Equip for Equality: www.equipforequality.org, Access Living: www.accessliving.org,the American Civil Liberties Union of Illinois: www.aclu-il.org, and the Bazelon Center for Mental Health Law: www.bazelon.org. If you have any questions for plaintiffs' lawyers, you may write to Benjamin Wolf, ACLU of Illinois, 180 N. Michigan Avenue, Suite 2300, Chicago, Illinois, 60601.

DATED: _ _ _ _,2010

United States District Court Northern District of Illinios

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Case: 1:05-cv-04673 Document #: 267 Filed: 05/27/10 Page 36 of 45 PageID #:2095
, '

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

ETHEL WILLIAMS, et al., Plaintiffs, vs.
PAT QUINN, et aI., Defendants.

)

)

)

)

No. 05 C 4673

)

)

)

Judge William T. Hart

)

Magistrate Judge Morton Denlow

)

)

)

)

EXHIBIT B-1: FORM OF SUMMARY PUBLICATION NOTICE
LEGAL NOTICE OF PROPOSED CLASS ACTION CONSENT DECREE AND HEARING
If you are a person in Illinois 18 years of age or older with mental illness living in an Institution for Mental Disease ("IMD"), a class action lawsuit may affect your rights.
This Notice is being published by order of the United States District Court for the Northern District of Illinois to inform you of the proposed settlement of a class action lawsuit (Williams v. Quinn, Case No. 05-4673) set forth in a proposed Consent Decree ("Consent Decree") against the State of Illinois, the Illinois Department of Human Services, Illinois Department of Human Services, Division of Mental Health, the Illinois Department of Healthcare and Family Services and the Illinois Department of Public Health regarding services provided to individuals with mental illness residing in [MOs.
The parties to that lawsuit have reached a proposed Consent Decree that, if approved by the Court, would provide certain rights and benefits to eligible individuals with mental illness.
The Court will hold a hearing to consider whether to approve the proposed Consent Decree on _ _ _ _ _ at _ _ a.m. before the Honorable William T. Hart, United States District Judge, in the Dirksen Federal Building, 219 S. Dearborn Street, Room 2243, Chicago, Illinois 60604.
Who Is Included? You are a class member whose rights may be affected by the proposed Consent Decree if you are a person in Illinois 18 years of age or older who: (a) has a mental illness; (b) is institutionalized in a privately owned IMD; and (c) with appropriate supports and services may be able to live in an integrated community setting.

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What Does the Proposed Settlement Provide? Plaintiffs and Defendants have asked the Court to enter an order that, if approved, would provide certain rights and benefits (as more fully described in the proposed Consent Decree) to eligible individuals with mental illness living in IMDs. The Consent Decree provides eligible class members the opportunity to make meaningful informed choices about where they live; requires Defendants to ensure that supports and services are available to individuals with mental illness in integrated, non-institutional settings; and establishes procedures to avoid unjustified institutionalization.
How Can I Get More Information? A detailed Notice describing the proposed Consent Decree, the rights of class members and a copy of the proposed Consent Decree itself are available on the website of the Illinois Department of Human Services, Division of Mental Health: www.dhs.state.il.us/page.aspx. and on the website of Equip for Equality: www.equip{orequality.org, Access Living: www.accessliving.org,the American Civil Liberties Union of Illinois: www.aclu-il.org, and the Bazelon Center for Mental Health Law: www.bazelon.org. If you have any questions for plaintiffs' lawyers, you may write to Benjamin Wolf, ACLU of Illinois, 180 N. Michigan Avenue, Suite 2300, Chicago, Illinois, 60601.

DATED: _ _ _ _, 2010

United States District Court Northern District of Illinois

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EXHIBIT B-2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ETHEL WILLIAMS, JAN WRIGHTSELL, EDWARD BRANDON, GILBERT PARHAM, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
PAT QUINN, in his official capacity as Governor of the state of Illinois, MICHELLE R. B. SADDLER, in her official capacity as Secretary of the Illinios Department of Human Services, LORRIE RICKMAN JONES, in her official capacity as Director of the Illinois Department of Human Services, Division of Mental Health, BARRY MARAM, in his official capacity as Director of the Illinois Department of Healthcare and Family Services, and Damon T. Arnold, in his official capacity as Director of the Illinois Department of Public Health,
Defendants.

)
) ) ) ) ) ) ) No. 05 C 4673 )
) Judge William T. Hart ) Magistrate Judge Morton Denlow
) ) ) ) ) ) )
) )
) )

NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND HEARING
PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY
A SETTLEMENT HAS BEEN PROPOSED THAT MAY AFFECT THE RIGHTS OF INDIVIDUALS WITH MENTAL ILLNESS LIVING IN INSTITUTIONS FORMENTAL DISEASES WHO MA Y BE ABLE TO LIVE IN COMMUNITY-BASED PLACEMENTS.
BASIC INFORMATION
I..WHY DID YOU GET THIS NOTICE?
You were sent this Notice to inform you about the proposed settlement of the class action lawsuit, as set forth in the Consent Decree ("Consent Decree") proposed in this case, which may

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affect the rights of individuals with mental illness living in Institutions for Mental Diseases ("IMDs") who with appropriate supports and services may be able to live in community-based placements. This Notice was sent to you and other people (and/or guardians or legal representatives) in Illinois who have been identified as being eighteen (18) years of age or older with a mental illness and who may be able to live in community-based placements, as well as individuals and entities who care for and work with them.
This Notice explains the lawsuit and the key terms of the Consent Decree, tells you how to obtain more information, explains how to determine whether an individual with a mental illness living in an IMD is a Class Member in the lawsuit, and explains how Class Members (andlor their legal representatives) can tell the Court whether they disagree with the Consent Decree or some part of it.
The Consent Decree described in this Notice is subj ect to Court approval, and thus has not yet been made final. The Court has scheduled a hearing to determine the fairness, adequacy and reasonableness of the Consent Decree and to consider any objections or comments Class Members may have to the Decree,
The Consent Decree may affect the rights of individuals with mental illness living in private IMDs who may be able to live in community-based placements. The Consent Decree does not require anyone currently living in an IMD to move out against his or her wishes.
2. WHAT IS THIS LAWSUIT ABOUT?
The Court in charge of the lawsuit is the United States District Court for the Northern District of Illinois, and the case is known as Williams v, Quinn, Case No, 05 C 4673, The people who sued are called the Plaintiffs, and the people they sued are called the Defendants.
Plaintiffs filed this lawsuit on August 15,2005, seeking to prevent what they allege is their unnecessary segregation in IMDs by Defendants, The named Plaintiffs are adults with mental illness who are institutionalized in IMDs, The named Defendants are Pat Quinn, who is the Governor of the State of Illinois, Michelle R.B. Saddler, who is the Secretary of the Illinois Department of Human Services, Lorrie Rickman Jones, who is the Director of the Illinois Department of Human Services, Division of Mental Health, Barry Maram, who is the Director of the Illinois Department of Healthcare and Family Services, and Damon T, Arnold, who is the Director of the Illinois Department of Public Health, The Defendants are responsible for administering the State ofIllinois' programs for people with mental illness, The lawsuit seeks to compel the State of Illinois (through the Defendants) to comply with federal law and rulings of the United States Supreme Court by offering individuals with mental illness the opportunity to make meaningful, informed choices about whether to live in community-based settings,
3. WHAT IS A CONSENT DECREE AND WHY IS IT BEING PROPOSED HERE?
A Consent Decree is a final order of the court in a case that is agreed to by all Plaintiffs and Defendants, The Court in this case did not decide in favor of either Plaintiffs or Defendants. There
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was not a trial. Instead, all of the Plaintiffs and Defendants agreed to settle the case according to certain terms that are stated in the Consent Decree. Those terms are set forth in the Consent Decree, which the Plaintiffs and Defendants have asked the Court to enter as an official order of the Court. That way, the cost of a trial is avoided, and the people affected will get relief. The Plaintiffs who filed the lawsuit and their attorneys think the Consent Decree is best for the people who are Class Members.
4. WHO IS A CLASS MEMBER?
The Court has certified the lawsuit as a class action and decided that everyone who fits this description is a Class Member: adults in Illinois who: (a) have a Mental Illness (as defined below); (b) are institutionalized in a privately owned Institutions for Mental Diseases; and (c) with appropriate supports and services may be able to live in an integrated community setting.
5. WHAT IS CONSIDERED A "MENTAL ILLNESS"?
In the Consent Decree, "Mental Illness" means: a disability that is attributable to a diagnosis of severe mental illness, defined as the presence of a major disorder,' excluding alcohol and substance abuse, Alzheimer's disease, and other forms of dementia based upon organic or physical disorders. A serious mental illness is determined by all of the following three areas: (1) diagnoses that constitute a serious mental illness are: Schizophrenia; Delusional disorder; Schizo-affective disorder; Psychotic disorder not otherwise specified; Bipolar disorder I - mixed, manic, and depressed; Bipolar disorder II; Cyclothymic disorder; Bipolar disorder not otherwise specified I; Major depression, recurrent; (2) in addition, the individual must be 18 years of age or older and be substantially functionally limited due to mental illness in at least two of the following areas: Selfmaintenance; Social functioning; Community living activities; or Work-related skills; and (3) the disability must be of an extended duration expected to be present for at least a year, which results in a substantial limitation in major life activities. Individuals will typically also have one of the following characteristics: (1) have experienced two or more psychiatric hospitalizations; (2) receive Social Security Income (SSI) or Social Security Disability Income (SSDI) because of mental illness, or have been deemed eligible for SSI or SSDI.
THE SETTLEMENT
6. WHAT DOES THE CONSENT DECREE IN THIS CASE PROVIDE?
The Consent Decree that the Plaintiffs and Defendants have asked the Court to enter in this case, if approved by the Court, would provide certain rights and benefits (as more fully described in the Consent Decree) to eligible Class Members as defined above. If the Consent Decree is not approved, it will be withdrawn and the lawsuit will continue. A copy ofthe entire Consent Decree
1 As classified in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) (American Psychiatric Association, 1400 K Street NW, Washington, DC 2005).

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is available on the website ofthe Illinois Department ofHuman Services, Division ofMental Health: www.dhs.state.it.us/page.aspx, and on the websites ofEquip for Equality: www.equip{orequality,org, Access Living: www.accesslivingorg, the American Civil Liberties Union of Illinois: www.acluil.org. and the Bazelon Center for Mental Health Law: www.bazelon.org.
All Plaintiffs and Defendants in this case believe that the Consent Decree is fair, reasonable and adequately affords reliefto all eligible Class Members. The parties believe the Consent Decree provides eligible Class Members the opportunity to make meaningful, informed choices about where they live, requires Defendants to make sure that they make supports and services available to individuals with mental illness living in IMDs who wish to receive services or placement in community-based settings, and establishes procedures to allow individuals with mental illness to choose placement in community-based settings, while still maintaining the choice ofprivate IMDs.
The following is a brief summary of key terms in the Consent Decree.
Development of Community Capacity. The Consent Decree requires Defendants to ensure the availability of services, supports and other resources to meet their obligations under the Decree and in particular to provide community-based settings and community-based services.
Benefits for Class Members Currently Residing in IMDs. The Consent Decree ensures that for individuals currently residing in IMDs who do not oppose moving to a community-based setting and who are otherwise appropriate for community placement, Defendants will develop a service plan specific to each person. The service plan will describe the services required, where and how such services will be developed and obtained, and a timetable for promptly completing that transition. The service plan will be developed by a qualified professional in conjunction with the Class Member and, where one has been appointed, the Class Member's legal guardian, and other appropriate people of his or her choosing.
Within five years after finalization of the Implementation Plan described below, all persons residing in IMDs who are appropriate for and do not oppose placement in community-based settings will transition to such settings. The Consent Decree sets forth interim benchmarks as well, with not less than forty percent (40%) of such persons transitioning within three (3) years, and not less than seventy percent (70%) transitioning within four (4) years of finalization ofthe Implementation Plan.
Named Plaintiffs will be offered the opportunity to be evaluated within 60 days of approval of the Consent Decree.
The Consent Decree does not require or force anyone to receive a service plan or to move out ofan [MD.
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Implementation Plan. The Consent Decree requires Defendants to develop an Implementation Plan to establish specific tasks, timetables, and protocols to ensure that Defendants fulfill the requirements of each provision of the Consent Decree.
Monitoring and Compliance. Under the Consent Decree, the Court will appoint an independent and impartial Monitor who is knowledgeable concerning the management and oversight of programs serving individuals with mental illness. The Monitor will be responsible for assisting the Court in evaluating Defendants' compliance or noncompliance with the Consent Decree.
Attorneys' Fees and Costs. Under the Consent Decree, Defendants will pay, subject to court review and approval, $1,990,000.00 to Class Counsel in full settlement of attorneys' fees incurred in connection with the lawsuit. Additionally, Defendants will pay all costs and expenses incurred by Class Counsel through and including the approval of the Consent Decree and any appeal thereof. Class Members do not have to pay anything to Class Counsel.
7. WHAT IS CONSIDERED A "COMMUNITY-BASED SETTING" AND WHAT ARE CONSIDERED "COMMUNITY-BASED SERVICES"?
In the Consent Decree, "Community-Based Setting" means the most integrated setting appropriate for a person with mental illness, where the setting is designed to promote independence in daily living, economic self-sufficiency and the ability to interact with non-disabled persons to the fullest extent possible. A Community-Based Setting may include: (1) Permanent Supportive Housing; (2) independent housing with the Class Member's family or friends; (3) other independent housing not owned or operated by a social service entity; or (4) any supported or supervised residential service within the DMH service array.
In the Consent Decree, "Community-Based Services" means those services (other than a placement in a Community-Based Setting) available under the Illinois Medicaid State Plan, as well as the services described in the Medicaid Community Mental Health Services Program administered by the Illinois Department of Human Services' Division of Mental Health and authorized pursuant to 59 Ill. Adm. Code Part 132.
8. WILL CLASS MEMBERS RECEIVE MONEY FROM THE CONSENT DECREE?
No. The lawsuit did not seek money damages on behalf of any Class Members, and there is no money awarded to any Class Members as part of the Consent Decree.
CLASS MEMBERS' RIGHTS
Class Members (and/or guardians or legal representatives) can tell the Court whether they disagree with the Consent Decree or some part of it.
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9. HOW DO YOU TELL THE COURT THAT YOU OBJECT TO OR SUPPORT THE CONSENT DECREE?
All Class Members have the right to object to or support the Consent Decree and to give reasons why they believe the Court should or should not approve it. The Court will consider those views. Any comment must include the name and number of the case (Williams v. Quinn, Case No. 05 C 4673), as well as a statement of the reasons (in no more than 5 pages) why the Court should or should not approve the Consent Decree. Be sure to include your name, address, telephone number, and your signature. Comments must state reasons why the Decree should or should not be approved.
All comments must be sent by U.S. Mail and postmarked no later than _ _, 2010, to Benjamin Wolf, ACLU of Illinois, 180 N. Michigan Avenue, Suite 2300, Chicago, Illinois, 6060l. Attorney Benjamin Wolf, the lead counsel for the plaintiff class, will inform the Court and other counsel for the Plaintiffs and Defendants of the comments that he receives and that Class Members want presented to the Court.

THE COURT'S FAIRNESS HEARING

The Court will hold a Fairness Hearing to decide whether to approve the Consent Decree.

10. WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE CONSENT DECREE?

The Fairness Hearing will be held before the Honorable William T. Hart, United States

District Judge, in the Dirksen Federal Building, 219 S. Dearborn Street, Room 2243, Chicago,

Illinois 60604 on

, 2010 at _ a.m. At this hearing, the Court will consider

whether the Consent Decree is fair, reasonable and adequate to the Class. The Court will consider

any objections made according to the procedures described above.

11. DO YOU HAVE TO COME TO THE HEARING?

All Class Members are entitled to attend the Fairness Hearing if they choose to do so, but no one is required to attend the Fairness Hearing. Plaintiffs' and Defendants' lawyers will be available to answer questions Judge Hart may have. If you mail a comment in accordance with the procedures described in Section 9, above, of this Notice, you do not have to come to Court to talk about it. As long as you mailed your written comment in accordance with the procedures described in Section 9, above, of this Notice, the Court will consider it.

12. WHO CAN SPEAK AT THE FAIRNESS HEARING?

You may ask the Court for permission to speak at the Fairness Hearing. The Judge will decide whether you are permitted to do so. To request permission, you should send a "Notice of

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Intention to Appear in Williams v. Quinn, Case No. 05 C 4673" to Plaintiffs' counsel. Be sure to include your name, address, telephone number, and your signature.

Your Notice of Intention to Appear should be submitted by sending a copy of such Notice

postmarked no later than

,to Benjamin Wolf, ACLU of Illinois, 180 N. Michigan

Avenue, Suite 2300, Chicago, Illinois, 60601. Benjamin Wolf will share copies of the Notices of

Intention to Appear with other counsel for the parties and file it with the court.

LAWYERS REPRESENTING THE CLASS

13. WHO ARE THE CLASS MEMBERS' LAWYERS IN THE CASE?

The Court ordered that the following attorneys represent the Class Members. These la'wyers are called "Class Counsel."

Benjamin S. Wolf THE AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS 180 North Michigan Avenue Suite 2300 Chicago, IL 6060 I

John Whitcomb EQUIP FOR EQUALITY 20 N. Michigan, #300 Chicago, IL 60602

Jennifer Mathis THE BAZELON CENTER FOR MENTAL HEALTH LAW 1101 15th Street, NW Suite 1212 Washington, DC 20005

Edward Mullen
ACCESS LIVING OF METROPOLITAN CHICAGO
115 West Chicago Avenue Chicago,IL 60610

DonnaM. Welch, P.e. Joseph M. Russell KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL 60654

Class Members will not be charged for these lawyers' fees or expenses.

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GETTING MORE INFORMATION
14. HOW DO YOU GET MORE INFORMATION ABOUT THE CONSENT DECREE?
A copy of the entire Consent Decree is available on the website of the Illinois Department ofI-Iuman Services, Division of Mental Health: www.dhs.state.i/.us/page. aspx, and on the websites of Equip for Equality: www.equipfarequality.arg, Access Living: www.accessliving.arg, the American Civil Liberties Union of Illinois: www.aclu-il.arg, and the Bazelon Center for Mental Health Law: www.bazelan.arg.
If you have any questions for plaintiffs' lawyers or want to request that a copy ofthe Consent Decree be mailed to you, you may write to Benjamin Wolf, ACLU of Illinois, 180 N. Michigan Avenue, Suite 2300, Chicago, Illinois, 60601, or call Benjamin Wolf at 312-201-9740 ext. 301.

DATED: _ _ _, 2010

United States District Court Northern District of Illinois

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 Case 1:05-cv-04673 Document 48 Filed 06/07/2006 Page 1 of 32

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

ETHEL WILLIAMS AND JAN WRIGHTSELL,
Plaintiffs, v. ROD BLAGOJEVICH, et al.,
Defendants.

)

)

)

)

)

)

No. 05 C 4673

)

)

Judge Hart

)

)

DEFENDANTS’ ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT

The defendants, Dr. Carol L. Adams, Dr. Lorrie Stone, Dr. Eric E. Whitaker, and Barry S.

Maram, by their attorney, Lisa Madigan, Attorney General of Illinois, hereby answer plaintiffs’

first amended complaint as follows:

Preliminary Statement

1. Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131, 12132, prohibits discrimination against individuals with disabilities. The United States Department of Justice has promulgated regulations under Title II stating that "a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." See 28 C.F.R. § 35.130(d) (emphasis added). Similarly, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, provides that no person with a disability shall "solely by reason of his or her disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

ANSWER: Defendants admit that paragraph 1 contains accurate partial quotations from various federal statutes and regulations.

2. In Olmstead v. L.C., 527 U.S. 581 (1999) (“Olmstead”), the U.S. Supreme Court held that disability-based discrimination includes placing people with mental illness in "unjustified isolation."
ANSWER: Defendants admit Olmstead discussed the fact that discrimination can include placing mentally ill persons in unjustified isolation. Defendants deny this statement fully states

Case 1:05-cv-04673 Document 48 Filed 06/07/2006 Page 2 of 32
the entire holding of Olmstead.
3. This action is brought to compel Defendants to comply with these mandates with regard to Plaintiffs and those similarly situated. Plaintiffs are currently housed in private, intermediate care nursing homes classified as Institutions for Mental Diseases (“IMDs”), which are designed to warehouse -- often for private profit -- large numbers of people with mental illness in a segregated setting.1
ANSWER: Defendants deny they are violating federal mandates. Defendants admit the named plaintiffs reside in nursing homes classified as IMDs. (IMDs are nursing homes with a certain statistical percentage of residents with mental illness, and that percentage determines whether there is a federal match for Medicaid eligible residents). Defendants deny the characterization that IMDs “warehouse” people with mental illness in segregated settings.
4. Defendants have failed to assure that Plaintiffs, and those similarly situated, are placed in a more integrated setting where they could lead more independent and more productive lives within the community.
ANSWER: Defendants deny the allegations of paragraph 4.
5. More than five thousand individuals with psychiatric disabilities live in privatelyowned IMDs in Illinois. These IMDs house dozens and often hundreds of people into the same building. They needlessly warehouse large numbers of people who could be served at the same or less cost to the State in far more integrated settings in their communities. The nursing home structure of the IMDs deprives residents of countless liberties and choices most citizens take for granted, such as the opportunity to read a book in private, to choose what to have for dinner, to decide when to wake up in the morning, and to come and go when desired. The IMDs range from cold and institutional to chaotic, unclean and unsafe. Few provide adequate staffing, psychiatric treatment, therapeutic activities or social rehabilitation. People frequently stay in IMDs only because they have nowhere else to go, a result of the Defendants’ longstanding neglect of its basic obligations under the ADA.
ANSWER: Defendants admit that there are several thousand individuals with psychiatric disabilities living in privately-owned IMDs in Illinois, though the exact number is subject to change at any given time, and not all IMD residents are Medicaid patients. The defendants admit that some IMDs house dozens or hundreds of people. Defendants deny the characterization that
1 Institutions for Mental Diseases (“IMDs”) are defined by Title XIX of the Social Security Act, which prohibits federal Medicaid funding for IMD residents between 22 and 64 years old. See Infra ¶ 15.
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IMDs “warehouse” people. As to the allegations of the third sentence, defendants admit that to the extent all nursing homes are by definition institutional settings, they may impose certain rules on the residents. Defendants have insufficient knowledge or information sufficient to form a belief as to the allegations of the remaining allegations of the third sentence and the fourth and fifth sentences. Defendants deny the allegations of the last sentence.
6. Plaintiffs, and those similarly situated, continue to languish in the segregated setting of the IMDs, despite the fact that equally affordable and more integrated residential settings exist and/or could be made available. Such residential settings would more appropriately meet Plaintiffs' needs.
ANSWER: Defendants deny the allegations of paragraph 6 to the extent it characterizes IMDs as “segregated.” Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 6.
7. Defendants have violated Title II of the ADA and Section 504 of the Rehabilitation Act by failing to assure that their services are administered to Plaintiffs in the most integrated setting appropriate to their needs. Instead, they have isolated and institutionalized Plaintiffs, and those similarly situated, in IMDs.
ANSWER: Defendants deny the allegations of paragraph 7.
Nature and Statutory Basis of Action
8. This action includes claims for violation of Title II of the ADA, 42 U.S.C. §§ 12131, 12132, which prohibits state and local government entities from discriminating against individuals with disabilities.
ANSWER: Defendants admit the complaint includes claims for alleged violations of the ADA.
9. This action also includes claims for violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, which prohibits recipients of federal funding from discriminating against individuals with disabilities.
ANSWER: Defendants admit the complaint includes claims for alleged violations of Section 504 of the Rehabilitation Act.
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Parties
10. Named Plaintiff Ethel Williams has been a resident of an Illinois IMD (Monroe Pavilion) for approximately thirteen years. Ms. Williams has been diagnosed with bipolar disorder. She is alert, active, and attends an occupational day program five days a week. Ms. Williams maintains close contact with her children and grandchildren. She also spends her weekends with her brother and sister-in-law, where she takes her medication independent of supervision.
ANSWER: Defendants admit Ms. Williams has been a resident of Monroe Pavilion for a number of years, and has been diagnosed with bipolar disorder and that, according to records, she has attended a day program and visits certain family members on weekends. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 10.
11. Named Plaintiff Jan Wrightsell has been a resident of an Illinois IMD (Monroe Pavilion) since early 2002. Ms. Wrightsell has been diagnosed with schizophrenia and has a history of major recurrent depression. She is alert and active; in fact, she currently cooks for staff and fellow members of an occupational day program, which she attends five days a week. Ms. Wrightsell maintains close contact with her family, and has substantial prior work experience as a sales clerk. She is well-educated and enjoys reading, writing short stories and composing poetry. Interacting with animals and pets is one of her favorite leisure activities.
ANSWER: Defendants admit Ms. Wrightsell has been a resident of Monroe Pavilion since 2002 and has been diagnosed with schizophrenia and major depression. Defendants admit that, according to records, she has attended a day program outside of Monroe Pavilion. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 11.
12. Named Plaintiff Donell Hall has been a resident of an Illinois IMD (Greenwood Care) for approximately twelve years. Mr. Hall has been diagnosed with bipolar disorder and schizophrenia. Mr. Hall is alert and active; in fact, he formerly served in the United States Army, from which he received an honorable discharge. He currently works at Anixter Center, a day program which he attends five days a week.
ANSWER: Defendants admits Donnell Hall has been a resident of Greenwood Care for some years and has been diagnosed with schizophrenia. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 12.
13. Named Plaintiff Edward Brandon has been a resident of an Illinois IMD (Wilson
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Care) for approximately two years. Mr. Brandon has been diagnosed with schizophrenia. Mr. Brandon is alert and active. Mr. Brandon currently works five days a week at the Anixter Center, his day program, where he buses tables. He maintains close contact with his grandmother and a cousin.
ANSWER: Defendants admit Edward Brandon has been a resident of Wilson Care for some years and has been diagnosed with schizophrenia. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 13.
14. Plaintiffs, and those similarly situated, are Illinois residents who have mental illnesses that substantially limit their ability to perform major life activities. They also have a record of such mental illnesses, and are regarded by Defendants as having such mental illnesses. They are therefore individuals with disabilities for purposes of the ADA and the Rehabilitation Act. 42 U.S.C. § 12102, 29 U.S.C. § 705(20).
ANSWER: Defendants admit the four named plaintiffs have a record of mental illness and as such would be considered individuals with disabilities.
15. Plaintiffs and those similarly situated are currently housed in intermediate care nursing homes classified by the Illinois Department of Healthcare and Family Services ("DHFS") (formerly the Illinois Department of Public Aid) as "IMDs." This classification is based on the fact that these are institutions with more than sixteen beds that are primarily engaged in providing diagnosis, treatment or care of persons with mental disabilities. 42 U.S.C. § 1396d(i). Federal law prohibits Defendants from receiving any federal Medicaid reimbursement for the care of lMD residents, aged 22 to 64, and Defendants must therefore pay for their IMD placements solely out of state funds. Virtually all IMD residents receive Supplemental Security Income ("SSI"). SSI recipients must contribute all but thirty dollars ($30) of their monthly SSI checks directly to the IMD operators. DHFS funds the remaining expenses associated with Plaintiffs' shelter and board at the IMD.
ANSWER: Defendants admit the allegations of the first three sentences of paragraph 15, and the last sentence. IMDs are not funded by the state directly, but state funds do reimburse certain expenses for certain residents. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations concerning SSI contributions each resident is required to make.
16. Defendant Rod Blagojevich is the Governor of the State of Illinois, a public entity covered by Title II of the ADA. 42 U.S.C. § 12131(1). Governor Blagojevich is ultimately responsible for ensuring that Illinois operates its service systems in conformity with the ADA and the Rehabilitation Act. 20 ILL. COMP. STAT. 2407/20(c). He is sued in his official capacity.
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ANSWER: Defendants admit Rod Blagojevich is Governor of the State of Illinois, and has all duties in that position as are imposed by law, and admit that the State is covered by Title II of the ADA.
17. Defendant Carol L. Adams is the Secretary of the Illinois Department of Human Services ("DHS"), the state agency responsible for assisting Illinois residents in achieving selfsufficiency, independence and health to the maximum extent possible by providing integrated family-oriented services, promoting prevention and establishing measurable outcomes in partnership with communities. DHS advertises itself as Illinois' largest agency, employing more than 15,000 people. It has an annual budget of nearly five billion dollars. DHS is a public entity covered by Title II of the ADA. 42 U.S.C. § 12131(1). DHS is the recipient of federal funds subject to the requirements of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Carol L. Adams is responsible for the operation and administration of DHS and is ultimately responsible for ensuring that DHS provides services in conformity with the ADA and the Rehabilitation Act. 20 ILL. COMP. STAT. 2407/20(c). She is being sued in her official capacity.
ANSWER: Defendants admit Dr. Adams is Secretary of DHS. Defendants admit that DHS is a statutorily-created public entity that provides services for persons in Illinois with mental illness as specified under Illinois law and as funded by the legislature. Defendants clarify that the phrase “to help to achiev[e] self-sufficiency, independence and health to the maximum extent possible” is a description of the overall mission of DHS as to all Illinois families, which includes persons with mental illness. Defendants admit that Dr. Adams, as a state official, is responsible for the operation and administration of DHS and oversees the compliance of DHS with the ADA and Rehabilitation Act as they apply to DHS. Defendants admit that DHS’ website describes DHS as Illinois’ largest agency, employing more than 15,000 people. Defendants admit that Dr. Adams is being sued in her official capacity. Defendants deny the remaining allegations of paragraph 17.
18. Defendant Lorrie Stone is the Director of the Division of Mental Health ("DMH"), the division of DHS responsible for helping to maximize community supports and develop skills for persons with serious mental illness. DMH is responsible for administering mental health screening and assessment of individuals with mental disabilities considered for placement in nursing homes. DMH is responsible for the placement of individuals with mental illness in an appropriate facility or program. DMH is the recipient of federal funds subject to the requirements of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. DMH is a public entity subject to the requirements of Title II of the ADA, 42 U.S.C. § 12131. Dr. Stone is responsible for the operation and administration of DMH and for ensuring that DMH, as the division of DHS responsible for providing residential and mental health services to people with mental illness, operates in conformity with the ADA and the Rehabilitation Act. She is being sued in her official capacity.
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ANSWER: Defendants admit that Dr. Stone is the Director of DHS’ Division of Mental Health (“DMH”). Pursuant to HFS rules, DMH, through local pre-admission screening (“PAS”) agents, determines whether a person is eligible for a nursing home level of care. Defendants admit that DMH is the recipient of federal funds subject to the requirements of Section 504 of the Rehabilitation Act and admit that DMH, as a subdivision of DHS, is a statutorily-created public entity subject to the requirements of Title II of the ADA. Defendants admit that Dr. Stone is responsible for the operation and administration of DMH and for overseeing the compliance of DMH with the ADA and Rehabilitation Act as they apply to DMH. Defendants admit that Dr. Stone is being sued in her official capacity. Defendants deny the remaining allegations of paragraph 18.
19. Defendant Eric E. Whitaker, M.D., is the Director of the Illinois Department of Public Health ("DPH"), the state agency responsible for licensing, regulating and inspecting all nursing homes, including IMDs, in the state of Illinois. DPH is responsible for certifying these facilities for participation in federal payment reimbursement: programs. DPH is also responsible for ensuring that persons with mental illness are appropriately screened and placed in nursing homes, and receive discharge planning. 77 Ill Admin. Code §§300.4010, 300.4060; 210 ILL. COMP. STAT. 45/3-202.2. DPH is a public entity covered by Title II of the ADA. 42 U.S.C. § 12131(1). DPH is the recipient of federal funds subject to the requirements of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. DPH's regulations permit the placement of an individual with mental illness in a nursing home, including an IMD, "for a medical reason directly related to the person's diagnosis of serious mental illness, such as medication management." 77 Ill. Admin. Code § 300.4000(c). Dr. Whitaker is being sued in his official capacity.
ANSWER: Defendants admit the allegations of the first sentence of paragraph 14. Defendants admit that DPH sets criteria for the regulation and inspection of nursing homes, but deny the law makes DPH “responsible for ensuring” that nursing homes screen and discharge patients appropriately. Defendants admit the remaining allegations of paragraph 19.
20. Defendant Barry S. Maram is the Director of the Illinois Department of Healthcare and Family Services ("DHFS"), the state agency responsible for providing health care coverage for the citizens of Illinois and for administering medical assistance programs and other fiscal programs. DHFS funds IMDs for resident services, including assessment, care planning, discharge planning, and treatment. 89 Ill. Admin. Code § 145.20, subchapter d; 305 ILL. COMP. STAT. 5/5-5.5. DHFS is a public entity covered by Title II of the ADA. 42 U.S.C. § 12131(1). DHFS is the recipient of federal funds subject to the requirements of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Barry S. Maram is responsible for operation and administration of DHFS and for ensuring that DHFS operates in conformity with the ADA and the Rehabilitation Act. He is being sued in his official capacity.
ANSWER: Defendants admit the allegations of the first sentence. Defendants deny DHFS
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funds IMDs directly; it reimburses IMDs for eligible residents, in the same manner as other nursing homes. Defendants admit the remaining allegations of paragraph 20.
Class Action Allegations
21. The named Plaintiffs bring this action as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure.
ANSWER: Defendants admit that plaintiffs have brought this case as a class action.
22. The class of individuals that the named Plaintiffs seek to represent consist of those persons in Illinois who (1) have a mental illness; (2) with appropriate supports and services, could live in the community; and (3) are institutionalized in privately-owned IMDs.
ANSWER: Defendants admit that plaintiffs are seeking to represent a class as defined in paragraph 22. Defendants deny the case should be a class action.
23. The class is so numerous that joinder of all Plaintiffs is impracticable. The exact number of individuals in the class is not known to Plaintiffs, but is believed to be in the thousands.
ANSWER: Defendants admit that there are thousands of residents in IMDs, and deny the remaining allegations of paragraph 23.
24. The claims of the named Plaintiffs are common to those of the class and raise common issues of fact and law, including, among others: whether Defendants adequately determine whether class members are eligible for community services; whether Defendants adequately inform IMD residents of their right to community services; whether Defendants are providing services to mentally ill individuals in the most integrated setting appropriate to their needs; whether Defendants have a comprehensive, effectively working plan for achieving that goal; whether Defendants efficiently administer a waiting list for community services that allows individuals to move out of IMDs and into more integrated settings at a reasonable pace; and whether Defendants violate the Americans with Disabilities Act and Section 504 of the Rehabilitation Act by failing to provide community-based services to qualified individuals.
ANSWER: Defendants deny the allegations of paragraph 24.
25. Plaintiffs' claims that Defendants have failed to administer the state's mental
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health programs so as to provide services in the most integrated setting appropriate to their needs are typical of the claims of the class.
ANSWER: Defendants deny the allegations of paragraph 25.
26. Plaintiffs will fairly and adequately protect the interests of the class because they suffer from deprivations identical to those of the class members and have been denied the same federal rights that they seek to enforce on behalf of the other class members, many of whom are unable to pursue claims on their own behalf as a result of their disabilities, their limited financial resources, and/or the actions of the Defendants to deprive them of their rights. Plaintiffs' interests in obtaining injunctive relief for the violations of their legal rights and privileges are consistent with and not antagonistic to those of any person within the class. Furthermore, Plaintiffs' counsel has extensive experience in the areas of class action litigation and civil rights laws concerning people with disabilities.
ANSWER: Defendants admit plaintiffs’ counsel has experience in the area of class action and civil rights litigation. Defendants deny the remaining allegations of paragraph 26.
27. Defendants have acted or refused to act on grounds generally applicable to all members of the class by unnecessarily segregating class members. For example, Defendants have failed to inform class members of their right to community services, failed to provide them with services in the most integrated setting appropriate to their needs, and failed to provide services with reasonable promptness. Therefore, declaratory and injunctive relief with respect to the entire class is appropriate.
ANSWER: Defendants deny the allegations of paragraph 27.
Jurisdiction and Venue
28. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 for civil actions arising under the laws of the United States and 28 U.S.C. § 1343 for actions arising under laws providing for the protection of civil rights.
ANSWER: Defendants admit the allegations of paragraph 28.
29. Venue in the Northern District of Illinois is proper under 28 U.S.C. § 1391, as it is the judicial district in which a substantial portion of the events or omissions giving rise to these claims occurred.
ANSWER: Defendants admit the allegations of paragraph 29.
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30. Declaratory and injunctive relief are sought under 28 U.S.C. § 2201 et seq.
ANSWER: Defendants admit the allegations of paragraph 30.
Background
31. Beginning in the late 1960s the State of Illinois began releasing thousands of individuals with mental illness from its psychiatric institutions. As this "de-institutionalization" progressed, however, the state failed to create and develop adequate community housing and community services for large numbers of "de-institutionalized" individuals. Instead, the state funneled funds to nursing home operators who profited from the large numbers of mentally ill individuals recently de-institutionalized. Throughout the 1970s and 1980s, nursing home operators opened up large facilities ("IMDs") designed - often for profit - to house these individuals, oftentimes in settings nearly as segregated and restrictive as the state psychiatric institutions they had just exited. Today, individuals with mental illness continue to be discharged from psychiatric hospitals into these restrictive facilities, where they continue to be needlessly segregated from society-at-large. This segregation occurs under the supervision of state agencies which, rather than helping re-integrate these individuals back into their communities by funding community-based programming, endorse and fund the IMDs. These IMDs do not prepare their residents to live independently and deny residents privacy and control over their lives. In many cases, the choice for persons with mental illness is between residence in an IMD-and compliance with its restrictive and controlling environment-or homelessness.
ANSWER: Defendants admit that there was a de-institutionalization of persons from state mental hospitals, and defendants admit that mentally ill persons reside in IMDs. Defendants deny the remaining allegations of paragraph 31.
32. Some fortunate individuals are discharged from psychiatric hospitals and placed in residential programs that are designed to help them achieve independence and manage their illness. Many others, however, like Plaintiffs and those similarly situated, are instead discharged to nursing homes, many of which are IMDs. In most Illinois nursing homes designated as IMDs, virtually all IMD residents have been diagnosed with mental illness.
ANSWER: Defendants admit some mentally ill persons are discharged to residential programs and others to IMDs. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 32.
33. Federal law prohibits Medicaid reimbursement to any individual who is older than 21 years of age and under 65 years of age and who is a resident of an IMD (42 U.S.C. § 1396d(a)(1), (2), (4)). Plaintiffs and class members who receive SSI are required to contribute all but thirty dollars ($30) of their monthly SSI check directly to the IMD operators to be used for
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their shelter and board. DHFS funds the remaining expenses associated with Plaintiffs' support and housing at the IMD.
ANSWER: Defendants admit the allegations of the first sentence of paragraph 33. Defendants admit that, as with any Medicaid patient, plaintiffs contribute their income to the cost of their per diem charges excluding $30. Defendants admit the allegations of the third sentence in that DHFS provides reimbursement for eligible residents for services provided to residents, as required by law.
34. Thus, the State of Illinois is not reimbursed by the federal government for serving residents between the ages of 22 and 64 in IMDs. However, the State of Illinois would receive significant federal reimbursement for serving these same individuals in the community. If the current system were altered, the savings to the State of Illinois would be immense.
ANSWER: Defendants admit the allegations of the first sentence of paragraph 34. Defendants admit that individuals served in the community may be eligible for federal assistance if the federal government permits home and community waivers. Defendants deny the general characterization that savings would be “immense”, because an individual’s ability to live more independently and the type of services required would determine how much savings, if any, there would be.
35. Defendants have failed to integrate the state's mental health system by failing to develop and fund community alternatives. Many lMD residents could be served in communityintegrated settings; however, as a practical matter, the choice most residents face is either an lMD or homelessness. Because most of their money - including money earned by those working at jobs outside the IMDs - goes into the IMD operators' pockets, IMD residents have little to no hope to save enough money to move to any other place. Most residents of IMDs remain there for years, because they are provided few opportunities to obtain services in more integrated settings and because they are provided few rehabilitation services to enable them to become more independent within the surrounding community.
ANSWER: Defendants deny the allegations of the first sentence of paragraph 35. Because of their sweeping generality, defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 35.
36. Instead of serving individuals with mental illness in more integrated settings, Defendants continue to fund and operate a mental health system that segregates these individuals and, in many cases, restricts their access to the outside world.
ANSWER: Defendants deny the allegations of paragraph 36.
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Facts
37. Illinois has historically provided, and currently provides, inpatient hospitalization to individuals with mental illness in public and private psychiatric hospitals.
ANSWER: Defendants admit the allegations of paragraph 37.
38. Some individuals discharged from psychiatric hospitals return home to family or friends. Others are discharged to various community residential programs for individuals with mental illness.
ANSWER: Defendants admit the allegations of paragraph 38.
39. In many of these residential programs, individuals live in their own apartments with greater privacy and with a greater choice of activities than now found in the IMDs. Individuals in community programs sometimes live in integrated buildings with individuals who do not have mental illnesses. They usually are able to receive and entertain visitors and communicate by phone in privacy. Individuals in community programs go to stores to shop for food and other necessities. Most of these individuals may go to doctors of their choice, as well as engage in social activities of their choice. They tend to these and other daily needs to the degree they are able, with supportive services provided by case managers. These programs are designed to foster independence and to enable individuals to become as self-sufficient as possible. Such programs are generally known as "supported housing." Unlike IMDs, they are not institutional in character.
ANSWER: Defendants admit there are “supported housing” programs of the type described in paragraph 39.
40. When state agencies fail to develop or fund community services, individuals with serious mental illness are discharged to nursing homes, including IMDs.
ANSWER: Defendants deny the allegations of paragraph 40.
Institutions for Mental Diseases ("IMDs")
41. The Named Plaintiffs and class members are currently housed in intermediate-care nursing homes classified as "IMDs." Most Illinois IMDs - of which there are approximately twenty seven - house over one hundred residents each. Virtually all IMD residents have been diagnosed with mental illness. Common diagnoses include bipolar disorder, schizophrenia and major recurrent depression.
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ANSWER: Defendants admit the allegations of paragraph 41.
42. There is insufficient capacity and long waiting periods for admission into community residential programs, including supported housing, so people with serious mental illness are inappropriately discharged from psychiatric hospitals to IMDs. The decision to discharge individuals such as Plaintiffs and those similarly situated to an IMD, as opposed to supported housing, is not based on any relevant treatment criteria or diagnosis, but simply on the lack of availability of appropriate alternatives.
ANSWER: Defendants admit that there are shortages of community residential programs and supported housing capacity for people with serious mental illness. Defendants deny the remaining allegations of paragraph 42.
43. Once individuals, such as Plaintiffs, are placed in an IMD, opportunities for discharge to supported housing are rare.
ANSWER: Defendants deny the allegations of paragraph 43.
44. Most IMDs provide only beds, meals, and spartan rehabilitative services. For Plaintiffs and virtually all class members, the services provided by the IMDs could be better provided in a more integrated, community residential program.
ANSWER: Defendants deny the allegations of paragraph 44.
45. IMDs place many limitations on residents' autonomy and privacy. Residents are subjected to a highly regimented lifestyle in which most daily activities are conducted in one place in the company of large numbers of other individuals with mental illness, and which is characterized by restrictive rules and policies. In contrast, the more integrated community residential programs for individuals with mental illness afford residents much more choice, freedom and privacy, as well as the opportunity to maintain family relationships and to interact with and form friendships with people who do not have mental illness.
ANSWER: Defendants have insufficient knowledge or information to form a belief as to the truth of the allegations of paragraph 45.
46. Meals at IMDs are provided with little choice. Typically, well over one hundred individuals share access to a single common area. Residents must line up for meals and for medication, which is only dispensed at specific times in the common areas.
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ANSWER: Defendants have insufficient knowledge or information to form a belief as to the truth of the allegations of paragraph 46.
47. IMDs provide very few recreational or other activities geared toward helping residents gain independence. Residents spend hours watching television in a common room or smoking cigarettes in a smoking room during the winter or outside on the sidewalk-beside the facility -when the weather allows. Residents wander aimlessly in and out of the common room and smoking room with nothing to do for the majority of the day. There are some activities on weekday afternoons that purportedly develop residents' practical skills; however, these activities are minimal, if not altogether ineffective. Some residents are able to attend day programs outside the facility, where they may learn skills to help them become more independent and more productive members of the community. However, at the end of the day, these residents must return to their IMDs.
ANSWER: Defendants admit that some residents at IMDs attend day programs outside the IMD and may attend other programs to develop their skills. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 47.
48. IMD residents have almost no control over their personal space. Most IMD residents share a bedroom and bathroom with several other people. Residents generally have no control over when or by whom their rooms are cleaned or who has access to their rooms.
ANSWER: Defendants admit some bedrooms and bathrooms are shared. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 48.
49. IMD residents have virtually no privacy. Payphones are located only in common areas, where anyone can overhear their conversation. Typically, IMD residents can receive calls only through the IMD switchboard, and are usually paged over a loudspeaker to come to a phone that is not in a private space.
ANSWER: Defendants have insufficient knowledge or information to form a belief as to the truth of the allegations of paragraph 49.
50. The lack of privacy makes it very difficult for residents to exercise their rights. Since it is difficult for residents to make phone calls without IMD staff knowing they are doing so, residents may be reluctant to call advocates when they have a problem. This serves as a further disincentive to residents exercising any kind of independence.
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ANSWER: Defendants have insufficient knowledge or information to form a belief as to the truth of the allegations of paragraph 50.
51. Residents have little contact with members of the community outside the facility. Outsiders' visits are generally limited and most visitors may not be received in privacy. ANSWER: Defendants have insufficient knowledge or information to form a belief as to the truth of the allegations of paragraph 51.
52. Typically, no food, liquids or medicines can be brought into the facility without permission of the IMD Administrator or nurse in charge. ANSWER: Defendants have insufficient knowledge or information to form a belief as to the truth of the allegations of paragraph 52.
53. The depersonalization and lack of mental stimulation in the facility erodes residents' ability to live independently. ANSWER: Defendants have insufficient knowledge or information to form a belief as to the truth of the allegations of paragraph 53.
54. Moreover, IMDs have policies and practices that prevent residents from moving out of the institution. Such policies inhibit the ability of residents to obtain appropriate services and supports that will provide them an opportunity to lead more fulfilling and more independent lives outside the IMD. Discharge planning is not regularly conducted. Furthermore, residents receive virtually no education or information about the limited alternatives to nursing homes. ANSWER: Defendants have insufficient knowledge or information to form a belief as to the truth of the allegations of paragraph 54.
55. IMD residents are typically not given a choice of which doctors and pharmacies to use. Residents' doctors and pharmacies are chosen by the facility. ANSWER: Defendants have insufficient knowledge or information to form a belief as to the truth of the allegations of paragraph 55.
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56. IMD operators usually serve as the representative payee for residents and thus control the residents' finances. As the representative payees, the operators receive residents' Supplemental Security Income ("SSI") checks directly from the government and distribute to residents the small personal needs allowance the residents are permitted to retain from these checks. This "personal needs allowance" is usually $30.00 a month, or about $1.00 per day. The remaining amount is retained for use by the IMD. This renders residents completely dependent upon the IMD for all basic needs.
ANSWER: Defendants admit that, as with any Medicaid patient, plaintiffs contribute their income to the cost of their per diem charges excluding $30. Defendants have insufficient knowledge to form a belief as to the truth of the remaining allegations of paragraph 56.
57. IMDs provide little or no rehabilitative treatment designed to promote recovery, independence and integration into the community. Some IMD residents are able to participate in work programs, where they hold "jobs" inside the facility; however, those who hold these positions are only allowed to work for short periods of time each day.
ANSWER: Defendants have insufficient knowledge or information to form a belief as to the truth of the allegations of paragraph 57.
58. IMDs lack a sufficient number of trained staff necessary to provide adequate care to individuals with mental illness and to provide them with the opportunities to lead happy, independent, and productive lives.
ANSWER: Defendants deny the general statement that IMDs lack staffing to provide adequate care. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 58.
59. Many IMD residents are subject to Behavior Management Programs ("BMPs"). These BMPs are similar to those behavior management systems used in psychiatric hospitals. A resident's freedom to leave the facility is restricted based on the staffs assessment of how the individual complies with institutional rules. In short, residents must meet the behavioral standards set by the institution in order to obtain greater freedom. Residents who fail to perform required activities or who violate the rules are punished by having their liberties restricted.
ANSWER: Defendants admit that at least one IMD (Monroe Pavilion) uses a “Behavior Management Program.” Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 59.
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NAMED PLAINTIFFS
Ethel Williams
60. Plaintiff Ethel Williams has been a resident of Monroe for approximately thirteen years, or since she was discharged from the John J. Madden Mental Health Center. Ms. Williams maintains close contact with her children and grandchildren. In addition, Ms. Williams spends her weekends with her brother and sister-in-law; she takes her medication independently while staying with her family. Ms. Williams is alert, active, and attends a day program five days a week. In the past, Ms. Williams has worked within the retail industry.
ANSWER: Defendants admit Ethel Williams has been a resident of Monroe Pavilion for a number of years and that, according to records, she has attended a day program and visits certain family members on weekends. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 60.
61. Ms. Williams wishes to leave Monroe and to live in a more integrated community setting, in order to accelerate her rehabilitation and to lead a more independent life. Professionals familiar with Ms. Williams's circumstances have indicated that she is ready to live in the community and that continued institutionalization is unnecessary.
ANSWER: Defendants admit that, according to records, Ms. Williams has in the past expressed a preference to return to the community. Defendants have insufficient knowledge or information to form as to the truth of the remaining allegations of paragraph 61.
62. Defendants, however, have failed to provide Ms. Williams with community services. Defendants have also failed to provide meaningful, adequate, and periodic assessments of Ms. Williams's potential for placement in the most integrated community setting available. Ms. Williams has repeatedly told the staff of Monroe that she wishes to leave, and facility records indicate her desire to live more independently. Her medical records and progress notes indicate that she is a good candidate for placement in an integrated community setting. However, Defendants fail to ensure that Ms. Williams receives adequate discharge planning and fail to provide opportunities for her to lead a more independent and more productive life.
ANSWER: Defendants deny the first and last sentences. Defendants admit Ms. Williams has, according to records, expressed a desire to return to the community. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 62.
63. Monroe has a Behavior Management Program that has four levels. Ms. Williams
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entered Monroe at "Level One"; however, she has complied with institutional rules to the point where she has been "awarded" a "Level Four" status. As a "Level Four" resident, Ms. Williams is permitted to be outside Monroe for most of the day in order to, for example, visit family members.
ANSWER: Defendants admit Monroe Pavilion has a Behavior Management Program and that, according to records, Ms. Williams has at some point been at “Level Four”. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 63.
64. Ms. Williams has repeatedly expressed an interest in returning to the community. She does not require nursing care in an institutional setting. She could live in the community if she were provided with the types of home and community-based supports and services currently provided in Illinois. However, Defendants have failed to ensure adequate discharge planning for Ms. Williams, even though she has demonstrated skills (e.g., working in the retail industry) that would enable her to succeed in more independent living.
ANSWER: Defendants deny the allegations of the last sentence of paragraph 64. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 64.
65. Ms. Williams has no significant physical health needs being addressed by Monroe.
ANSWER: Defendants deny the allegations of paragraph 65.
Jan Wrghtsell
66. Plaintiff Jan Wrightsell, has been a resident of Monroe since early 2002, when she was discharged from the psychiatric unit of Chicago's St. Joseph's Hospital. Ms. Wrightsell attends a day program five days a week, and is responsible for cooking lunch for fellow residents and staff. She has been diagnosed with schizophrenia and has a history of major recurrent depression. Ms. Wrightsell maintains close contact with her family, and has substantial prior work experience as a sales clerk. She is college-educated, composes poetry and loves to care for animals.
ANSWER: Defendants admit plaintiff has been diagnosed with schizophrenia, has been a resident of Monroe since 2002, is ambulatory, and has attended a day program, according to records. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 66.
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67. Ms. Wrightsell wishes to leave Monroe in order to live in a more integrated community setting, in order to accelerate her rehabilitation and to lead a more independent life. Professionals familiar with her circumstances, and with whom Ms. Wrightsell has interacted in her day programs, have indicated that she is ready to live in a less restrictive program in the community and that continued institutionalization is unnecessary.
ANSWER: Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 67.
68. Defendants, however, have failed to provide Ms. Wrightsell with community services. Defendants have provided only formulaic assessments of Ms. Wrightsell that lack any individual plan or review. Ms. Wrightsell has repeatedly told the staff of Monroe that she wishes to leave; however, facility records fail to reflect her desire to live more independently. Defendants fail to ensure that Ms. Wrightsell receives adequate discharge planning and fail to provide opportunities for her to lead a more independent and more productive life. Instead, Defendants have consigned her to an institution that refuses to help her progress toward social independence.
ANSWER: Defendants have insufficient knowledge or information to form a belief as to the truth of the allegation that Ms. Wrightsell repeatedly has told staff she wants to leave. Defendants deny the remaining allegations of paragraph 68.
69. Ms. Wrightsell entered Monroe at "Level One"; however, she has complied with institutional rules to the point where she has been "awarded" a "Level Three" status. As a "Level Three" resident, Ms. Wrightsell is only permitted to leave Monroe on her own for between two and six hours per day, depending on the length of the pass assigned to her at any given time. Although she has fulfilled "Level Four" requirements (e.g., successfully graduating from several day programs), Monroe refuses to grant her "Level Four" privileges.
ANSWER: Defendants admit that, according to records, Ms.Wrightsell has been at Levels One, Two and Three. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 69.
70. Ms. Wrightsell has repeatedly petitioned Monroe to move to "Level Four." However, her petitions have been regularly denied by Monroe staff with neither sound nor written reason. In fact, Ms. Wrightsell's privileges have often been suspended based on arbitrary reasons (e.g., bringing her winter coat to the cafeteria).
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ANSWER: Defendants have insufficient knowledge or information to form a belief as to the truth of the allegations of paragraph 70.
71. Ms. Wrightsell has repeatedly expressed an interest in returning to the community. She does not require nursing care in an institutional setting. She could live in the community if she were provided with the types of home and community-based supports and services currently provided in Illinois. These supports and services provided in the community would cost the same or less than the amount currently spent on Ms. Wrightsell's care. However, Defendants fail to ensure adequate discharge planning for Ms. Wrightsell, even though she has demonstrated skills (e.g., working as a cook in the day program she now attends) that would enable her to succeed in more independent living. Ms. Wrightsell has no significant physical health needs being addressed by Monroe.
ANSWER: Defendants deny the allegations of the last two sentences of paragraph 71. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 71.
Donell Hall
72. Plaintiff Donell Hall is 43 years old and has been a resident of Greenwood Care for approximately twelve years. He was placed in Greenwood Care after he was discharged from Chicago-Read Hospital. Mr. Hall is very physically active; in fact, he formerly served in the United States Army, from which he received an honorable discharge. Mr. Hall has been diagnosed with bipolar disorder and schizophrenia.
ANSWER: Defendants admit that Donell Hall has been a resident of Greenwood Care for some period of times and has been diagnosed with schizophrenia. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 72.
73. Mr. Hall wishes to leave Greenwood Care and to live in a more integrated community setting, in order to accelerate his rehabilitation and to lead a more independent life. Professionals familiar with Mr. Hall's circumstances have indicated that he is ready to live in the community and that continued institutionalization is unnecessary. Prior to living at Greenwood Care, he owned his own apartment and car. He is able to manage his money and cook for himself, as he had done prior to his institutionalization at Greenwood Care.
ANSWER: Defendants have insufficient knowledge or information to form a belief as to the truth of the allegations of paragraph 73.
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74. Defendants, however, have failed to provide Mr. Hall with community services. Defendants have also failed to provide meaningful, adequate, and periodic assessments of Mr. Hall's potential for placement in the most integrated community setting available. Mr. Hall has repeatedly told the staff of Greenwood Care that he wishes to leave, and facility records indicate his desire to live more independently. His medical records and progress notes indicate that he is a good candidate for placement in an integrated community setting. However, Defendants fail to ensure that Mr. Hall receives adequate discharge planning and fail to provide opportunities for him to lead a more independent and more productive life.
ANSWER: Defendants deny the allegations of the first, second, and last sentences of paragraph 74. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 74.
75. Mr. Hall has expressed an interest in returning to the community. He does not require nursing care in an institutional setting. He could live in the community if he were provided with the types of home and community-based supports and services currently provided in Illinois. However, Defendants have failed to ensure adequate discharge planning for Mr. Hall, even though he has demonstrated skills that would enable him to succeed in more independent living. He currently works at the Anixter Center, his day program, five days a week.
ANSWER: Defendants deny the allegations of the third sentences of paragraph 75. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 75.
76. Mr. Hall has no significant physical health needs being addressed by Greenwood Care.
ANSWER: Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 76.
Edward Brandon
77. Plaintiff Edward Brandon is 25 years old and has been a resident of Wilson Care for approximately two years. Mr. Brandon has been diagnosed with schizophrenia. He has formerly held several jobs in retail stores; currently, Mr. Brandon works, Monday through Friday, at the Anixter Center where he buses tables. He maintains close contact with his grandmother and cousins.
ANSWER: Defendants admit Edward Brandon is a resident of Wilson Care and has been diagnosed with schizophrenia. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 77.
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78. Mr. Brandon wishes to leave Wilson Care and to live in a more integrated community setting, in order to accelerate his rehabilitation and to lead a more independent life. Professionals familiar with Mr. Brandon's circumstances have indicated that with appropriate supports and services-he is ready to live in the community and that continued institutionalization is unnecessary. Every day he is subjected to second-hand smoke, as he has no control over whether his roommates can smoke in his room.
ANSWER: Defendants admit that according to records, Mr. Brandon has expressed a desire to return to the community. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 78.
79. Defendants, however, have failed to provide Mr. Brandon with community services. Defendants have also failed to provide meaningful, adequate, and periodic assessments of Mr. Brandon's potential for placement in the most integrated community setting available. Facility records indicate his desire to live more independently. His medical records and progress notes indicate that he is a good candidate for placement in an integrated community setting. However, Defendants fail to ensure that Mr. Brandon receives adequate discharge planning and fail to provide opportunities for him to lead a more independent and more productive life.
ANSWER: Defendants deny the allegations of the first, second, and last sentences of paragraph 79. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 79.
80. Mr. Brandon has expressed an interest in returning to the community. He does not require nursing care in an institutional setting. He could live in the community if he were provided with the types of home and community-based supports and services currently provided in Illinois. However, Defendants have failed to ensure adequate discharge planning for Mr. Brandon, even though he has demonstrated skills (e.g., working at Anixter Center) that would enable him to succeed in more independent living.
ANSWER: Defendants admit that, according to records, Mr. Brandon has expressed an interest in returning to the community. Defendants have insufficient knowledge or information to from a belief as to the truth of the allegations of the second and third sentences, and deny the allegations of the last sentence of paragraph 80.
81. Mr. Brandon has no significant physical health needs being addressed by Wilson Care.
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ANSWER: Defendants have insufficient knowledge or information to form a belief as to the truth of the allegations of paragraph 81.
The Roles of Defendants
82. Defendants are all charged with administering and/or overseeing long-term care services for individuals with mental illness in both institutional and community settings.
ANSWER: Defendants admit that various state agencies have varied and differing responsibilities for individuals with mental illness.
83. In the more than six years since Olmstead was decided, Defendants have failed to develop a comprehensive and effective working plan for identifying people with mental illness unnecessarily institutionalized in nursing homes and IMDs and moving them into more integrated settings. The Defendants are responsible for the operation and administration of their respective agencies and are ultimately responsible for ensuring that their agencies provide services in conformity with the ADA and the Rehabilitation Act. 20 ILL. COMP. STAT. 2407/20(c). However, no viable working plan has been produced nor have Defendants evidenced a commitment to action which would show "ongoing progress toward community placement." See Penn. P.P.A., Inc. v. Penn. Dept. of Public Welfare, 422 F.3d 151, 159 (3rd Cir. 2005).
ANSWER: Defendants admit to having those responsibilities as are imposed by law under the ADA and Rehabilitation Act. Defendants deny the remaining allegations of paragraph 83.
84. DHS’ duties also include monitoring the care given by nursing homes, including IMDs, and providing input into the licensing process on such matters as staffing and program content.
ANSWER: Defendants deny the allegations of paragraph 84.
85. DHS is responsible for the screening of individuals such as Plaintiffs and those similarly situated, who are being considered for admission to nursing facilities and who are ages 18 through 59, and for individuals aged 60 and over who have a severe mental illness, in order to determine whether nursing facility care is appropriate. 77 Ill.. Adm. Code § 300.615.
ANSWER: Defendants admit the allegations of paragraph 85.
86. DPH, in conjunction with DHS, is required to develop minimum standards for licensing facilities for people with mental illness, including IMDs. 210 ILL. COMP. STAT.
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Case 1:05-cv-04673 Document 48 Filed 06/07/2006 Page 24 of 32
45/3-203.
ANSWER: Defendants admit the allegations of paragraph 86.
87. DPH is also responsible for regulating and inspecting all nursing facilities, including IMDs, in Illinois. DPH is required to develop a curriculum for training nursing assistants and habilitation aides. 210 ILL. COMP. STAT. 45/3-206.
ANSWER: Defendants admit the allegations of paragraph 87.
88. DPH is responsible for promulgating rules governing the provision of services by nursing facilities to residents who have a serious mental illness, including assessment, care planning, treatment, and discharge planning. 210 ILL. COMP. STAT. 45/3-202.2.
ANSWER: Defendants admit the allegations of paragraph 88.
89. DHFS classifies nursing homes as IMDs and administers funding to IMDs as appropriate., 89 Ill. Adm. Code §§145.20, 145.40, 140.500. DHFS is required to verify the need for group care for individuals with severe mental illness in accordance with 89 Ill. Adm. Code § 140.642. DHFS is also required to approve the placement in the nursing facility based upon a determination that a need for a nursing level of care exists and that the nursing facility meets state law requirements. DHFS authorizes payment to the nursing facility. 89 Ill. Adm. Code § 140.510.
ANSWER: Defendants admit HFS, following federal practice, classifies nursing homes as IMDs, and verifies the need for services, but deny that HFS evaluates the patient in terms of “group care.” Defendants admit the criteria for placement are partly stated in this paragraph. Defendants admit HFS authorizes payment to the nursing facility for certain residents and certain services.
90. Defendants do not consider the needs of Plaintiffs or other similarly situated IMD residents for more integrated housing when they plan for development of integrated supported housing programs.
ANSWER: Defendants deny the allegations of paragraph 90.
91. Despite the fact that they are responsible for ensuring appropriate placement of individuals with mental illness and for establishing appropriate discharge procedures, Defendants
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have not provided Plaintiffs, and those similarly situated, with information that will enable them to seek services in a more integrated setting or to lead more independent and more productive lives in society.
ANSWER: Defendants deny the allegations of paragraph 91.
92. In violation of their statutory duties, Defendants are administering their programs and providing services in a manner that supports and encourages the segregation of individuals with mental illness, by inappropriately relying on IMDs.
ANSWER: Defendants deny the allegations of paragraph 92.
93. Defendants have developed and funded long-term residential programs that enable individuals to receive services in settings far more integrated than nursing homes.
ANSWER: Defendants admit that DHS has funded residential programs of the type described in this paragraph.
94. However, Defendants have failed to develop and fund sufficient capacity in these residential programs, forcing into nursing homes thousands of individuals with mental illness who could, and would, prefer to be served in more integrated settings.
ANSWER: Defendants deny the allegations of paragraph 94.
95. Defendants have policies, rules and practices that discourage the placement of individuals with mental illness in integrated residential settings and, instead, perpetuate the current system of IMDs. Changing these policies, rules, and practices would not be a fundamental alteration under Defendants' service system for people with psychiatric disabilities. Services can be provided in a more integrated setting at a cost equivalent to or less than the average cost of providing services to a nursing home or IMD resident. Moreover, Defendants already provide the services needed by Plaintiffs and those similarly situated to other people with mental illness in the community.
ANSWER: Defendants deny the allegations of the first three sentences of paragraph 82. Defendants have insufficient knowledge or information to form a belief as to the truth of the allegations of the last sentence of paragraph 95.
96. Defendants have not informed Plaintiffs and class members of their right to
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community services. Nor have Defendants evaluated Plaintiffs and those similarly situated to find the most integrated setting appropriate to their needs. Defendants have arbitrarily denied community services to those Plaintiffs and class members capable of living more independently. Defendants have no plan for achieving the goal of having sufficient services in the community.
ANSWER: Defendants deny the allegations of paragraph 96.
Count I
Violation of the Americans With Disabilities Act Mandate To Administer Services And Programs In The Most Integrated Setting
97. Plaintiffs and class members repeat and reallege paragraphs 1-96 above.
ANSWER: Defendants restate the answers made to paragraphs 1-96.
98. Plaintiffs and those similarly situated are individuals with serious mental illnesses. Each Plaintiff and class member has a mental impairment that substantially limits one or more major life activity including, but not limited to, self care and interaction with others. Plaintiffs and those similarly situated also have a record of such mental illnesses, and are regarded by Defendants as having such mental illnesses.
ANSWER: Defendants admit that the named plaintiffs have a record and history of mental illness. As to each unspecified member of the purported class, defendants admit that they may have serious mental illness, but have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 98.
99. Plaintiffs and class members are residents of facilities classified as IMDs, and each is qualified to participate in a more integrated community residential program that would 24 meet their mental health needs. Plaintiffs and class members are, therefore, qualified individuals with disabilities within the meaning of 42 U.S.C. § 12131(2).
ANSWER: Defendants admit plaintiffs and other unspecified members of the purported class are residents of IMDs. Defendants have insufficient knowledge or information to form a belief as to whether they would be “qualified”, i.e., able to live in a more integrated setting.
100. Defendants Blagojevich, Adams, Stone, Whitaker and Maram are responsible for the operation of public entities covered by Title II of the ADA. 42 U.S.C. §§ 12131(1)(A) and (B).
ANSWER: Defendants admit defendants Adams, Stone, Whitaker, and Maram are
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responsible for the operation of public entities under the overall supervision of the Governor. 101. The United States Department of Justice has promulgated regulations under Title
II of the ADA stating that "a public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." See 28 C.F.R. § 35.130(d). ANSWER: Defendants admit this paragraph contains an accurate partial quotation of the regulation.
102. Defendants are obligated under the ADA to administer Illinois programs in a manner that supports the availability of services and programs in the most integrated setting for individuals with disabilities. ANSWER: Defendants admit that defendants have an obligation to provide services for individuals in a manner consistent with the ADA, but deny the allegations of paragraph 102 to the extent they may be inconsistent with the ADA.
103. Serving Plaintiffs and class members in a more integrated setting can be reasonably accomplished. ANSWER: Defendants have insufficient knowledge or information to form a belief as to the truth of the allegations of paragraph 103.
104. Defendants have failed to meet this obligation. Defendants instead require that Plaintiffs and class members, in order to receive mental health care, live segregated in IMDs, even though these facilities are not the most integrated settings appropriate to their needs. ANSWER: Defendants deny the allegations of paragraph 104.
Count II Violation Of The Americans With Disabilities Act's Prohibition On Using Methods Of
Administration That Subject Plaintiffs To Discrimination 105. Plaintiffs and class members repeat and reallege paragraphs 1-96 above. ANSWER: Defendants restate the answers made to paragraph 1-96.
106. Plaintiffs and class members are residents of IMDs and each is qualified to participate in a more integrated community residential program that meets their mental health
27

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needs.
ANSWER: Defendants admit that the named plaintiffs and others in the purported class are residents of IMDs. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 106.
107. Title II of the ADA, 42 U.S.C. §§ 12131, 12132, prohibits Defendants from discriminating against individuals with disabilities.
ANSWER: Defendants admit the allegations of paragraph 107.
108. Regulations implementing Title II of the ADA, 28 C.F.R. § 35.130(b)(3), provide that "a public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities ...."
ANSWER: Defendants admit that paragraph 108 contains an accurate partial quotation of 28 C.F.R. 35.130(b)(3).
109. Defendants, however, utilize methods of administration that have the effect of subjecting Plaintiffs and those similarly situated to discrimination. Defendants continue to utilize methods of administration that perpetuate Plaintiffs' and class members' placement in IMDs, rather than facilitating their receipt of services in the most integrated setting appropriate to their needs.
ANSWER: Defendants deny the allegations of paragraph 109.
Count III
Failure to Administer Services in the Most Integrated Setting Appropriate in Violation of the Rehabilitation Act
110. Plaintiffs and class members repeat and reallege paragraphs 1-96 above.
ANSWER: Defendants restate the answers made to paragraphs 1-96.
111. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, provides:
No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded
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from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. ANSWER: Defendants admit that paragraph 111 contains an accurate partial quotation of the Rehabilitation Act.
112. DPH, DHFS, DMH and DHS are recipients of Federal financial assistance. ANSWER: Defendants admit the allegations of paragraph 112.
113. Defendants Blagojevich, Adams, Stone, Whitaker and Maram are responsible for the operation of DPH, DHFS, DMH and DHS. ANSWER: Defendants admit the defendants named are responsible for their respective agencies or divisions.
114. Plaintiffs and class members reside in IMDs and are each qualified to participate in a more integrated community residential program that meets their mental health needs. ANSWER: Defendants admit plaintiffs and others in the purported class reside in IMDs. Defendants have insufficient knowledge or information to form a belief as to the truth of the remaining allegations of paragraph 114.
115. Section 504 of the Rehabilitation Act requires Defendants to serve individuals with disabilities in the most integrated setting appropriate to their needs. ANSWER: Defendants deny the allegations of paragraph 115.
116. Serving Plaintiffs and class members in more integrated settings can be reasonably accomplished. ANSWER: Defendants deny the allegations of paragraph 116.
117. Defendants have violated Section 504 of the Rehabilitation Act by failing to administer services to Plaintiffs, and those similarly situated, in the most integrated setting appropriate to their needs. ANSWER: Defendants deny the allegations of paragraph 117.
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Count IV Violation of the Rehabilitation Act's Prohibition on Using Methods of Administration That
Subject Plaintiffs to Discrimination 118. Plaintiffs and class members repeat and reallege paragraphs 1-96 above. ANSWER: Defendants restate the answers made to paragraphs 1-96.
119. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 prohibits Defendants from discriminating against individuals with disabilities. ANSWER: Defendants admit the allegations of paragraph 119.
120. Regulations implementing Section 504 of the Rehabilitation Act provide that "a recipient may not, directly or through contractual or other arrangements, utilize criteria or methods of administration: (i) That have the effect of subjecting qualified handicapped persons to discrimination on the basis of disability; (or] (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program with respect to handicapped persons ...." 45 C.F.R. § 84.4(b). ANSWER: Defendants admit paragraph 120 contains a substantially accurate partial quotation of 45 C.F.R. 84.4(b).
121. DPH, DHFS, DMH and DHS are recipients of Federal, financial assistance. ANSWER: Defendants admit the allegations of paragraph 121.
122. Defendants Blagojevich, Adams, Stone, Whitaker and Maram are responsible for the operation of DPH, DHFS, DMH and DHS. ANSWER: Defendants admit the defendants named are responsible for their respective agencies or divisions.
123. Defendants utilize methods of administration that have had the effect of subjecting Plaintiffs and class members to discrimination. Defendants utilize methods of administration that perpetuate the current IMD system rather than facilitate the receipt of services in the most integrated setting appropriate to the needs of Plaintiffs and class members, which have resulted in Plaintiffs’ placement in an IMD, a setting that is segregated and inappropriate.
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ANSWER: Defendants deny the allegations of paragraph 123.
Prayer for Relief WHEREFORE, the Plaintiffs, individually and on behalf of the class, respectfully request that the Court: A. Enter an order certifying the named Plaintiffs as representatives for a class
consisting of those persons in Illinois who: (i) have mental illness and qualify for long-term care services; (ii) with appropriate supports and services, could live in the community, and (iii) who are (a) institutionalized in IMDs. B. Declare that Defendant’s failure to provide Plaintiffs with services in the most integrated setting appropriate to their needs violates the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. C. Issue a permanent injunction: (i) requiring Defendants to inform individuals with mental illnesses in the
State that they may be eligible for community services and that they have the choice of such services; (ii) requiring Defendants promptly to determine Plaintiffs’ and class members’ eligibility for community services; (iii) prohibiting Defendants from arbitrarily denying eligibility to individuals who are capable of living in a community setting with appropriate supports and services; and (iv) requiring Defendants promptly to provide eligible Plaintiffs and class members with appropriate services sufficient to allow them to live in the most integrated setting appropriate to their needs. D. Grant such other and further relief as this Court deems just and proper, including an award of reasonable attorneys’ fees, litigation expenses and costs. ANSWER: Defendants deny plaintiffs are entitled to the relief sought, and request that their complaint be dismissed with prejudice.
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AFFIRMATIVE DEFENSES 1. The relief plaintiffs seek would be inequitable in that it would require Defendants to fundamentally alter the nature of the services and programs they are legally obligated to provide and do provide to persons with mental illness. 2. The relief plaintiffs seek would be inequitable given Illinois’ available resources and given Defendants’ responsibility for the care and treatment of a large and diverse population of persons with mental illness.

LISA MADIGAN Attorney General of Illinois

Respectfully submitted,
s/Thomas A. Ioppolo THOMAS A. IOPPOLO BRENT D. STRATTON PETER C. KOCH VIHAR PATEL Assistant Attorneys General 100 W. Randolph Street, 13th Fl. Chicago, IL 60601 (312) 814-7198
KAREN KONIECZNY CHRISTOPHER S. GANGE 160 N. LaSalle Street, Suite N-1000 Chicago, IL 60601 (312) 793-2380

32

 
 Case: 1:05-cv-04673 Document #: 285 Filed: 07/27/10 Page 1 of 11 PageID #:2309
HHN
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ETHEL WILLIAMS, JAN WRIGHTSELL,

)

EDWARD BRANDON, and GILBERT

)

PARHAM, on behalf of themselves

)

and all others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

PAT QUINN, in his official capacity

)

as Governor of the State of Illinois,

)

CAROL L. ADAMS, in her official

)

capacity as Secretary of the Illinois

)

Department of Human Services, LORRIE

)

STONE, in her official capacity as

)

Director of the Division of Mental

)

Health of the Illinois Department of

)

Human Services, ERIC E. WHITAKER, in

)

his official capacity as Director of

)

the Illinois Department of Public

)

Health, and BARRY S. MARAM, in his

)

official capacity as Director of the

)

Illinois Department of Healthcare and

)

Family Services,

)

)

Defendants.

)

No. 05 C 4673

OPINION AND ORDER
This class action concerns the State of Illinois's alleged duty under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 (a) (2), 12101 (a) (5), 12132, and § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), to provide qualified persons with mental illnesses who reside in privately owned Institutions for Mental Diseases ("IMD") the opportunity to be placed in an integrated community setting. See generally

Case: 1:05-cv-04673 Document #: 285 Filed: 07/27/10 Page 2 of 11 PageID #:2310
Olmstead v. L.C., 527 U.S. 581 (1999). The defendants in this case, all sued in their official capacity, are the Governor of Illinois; the Secretary of the Illinois Department of Human Services; the Director of the Division of Mental Health of the Department of Human Services; the Director of the Illinois Department of Public Health; and the Director of the Illinois Department of Healthcare and Family Services. There are 25 IMDs in Illinois and none are named parties in this litigation, but each IMD is potentially affected by the resolution of this case. The IMDs have been the subjects of certain discovery and have been permitted to comment on certain aspects of this case, both orally at hearings and in writing. The IMDs initially appeared in this case to seek to quash subpoenas that were served on them. A Fed. R. Civ, P 23(b) (2) class has been certified "consisting of Illinois residents who: (a) have a mental illness; (b) are institutionalized in a privately owned Institution for Mental Diseases; and (c) with appropriate supports and services may be able to live in an integrated community setting." Williams v. Blagojevich, 2006 WL 3332844 *5 (N.D. Ill. Nov. 13, 2006).
The Class" and defendants have entered into a Settlement Agreement, which has been preliminarily approved. See Order dated May 27, 2010 [Docket Entries 266-67]. A hearing to consider the
'Arguments and other statements made by Class Counsel are considered to be statements of the Class, as distinguished from statements made on behalf of the Class Objectors.
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fairness of the Settlement is set for September 7, 2010. All comments or objections concerning the Settlement are due by August 10, 2010, with the parties having until August 24, 2010 to respond to any comments or objections that are received. Prior to preliminary approval, the IMDs expressed objections to preliminary approval. Also, prior to the Settlement being presented to the court for preliminary approval, the plaintiffs and/or defendants discussed the terms of the Settlement with one or more IMD representatives and considered, but did not necessarily accept, the IMDs' views and suggestions. Additionally, William Choslovsky, an attorney who is being paid by all or some of the IMDs, has filed an appearance on behalf of certain class members who object to the Settlement (the "Class Objectors").' The Class Objectors filed a brief opposing preliminary approval.
Notice to the Class regarding the Settlement and Fairness Hearing was accomplished through publication in newspapers throughout the state, notices posted on websites of defendants and organizations funding the litigation, and notices mailed to the IMDs who cooperated by forwarding the notices to residents and their guardians. Shortly after distributing the court's Notice, many or all of the IMDs distributed their own information sheets
'Two other members of Choslovsky's law firm have also filed appearances on behalf of the Class Objectors. References to Choslovsky in today's ruling should be understood to apply to all the lawyers representing the same group of Objectors.
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("IMD Notices") to residents and family members urging them to object to the Settlement. A few samples of the IMD Notices have been provided and the parties agree they are representative. The IMD Notices include contact information for Choslovsky and state that the particular IMD is paying his fee. The IMDs represent that, following receipt of the court Notice, they received so many inquiries from residents and family members that they were compelled to provide a response. 3 The Class contends that the IMD Notices are misleading and designed to scare class members into objecting to the Settlement.
As is stated in the IMD Notices, Choslovsky acknowledges that his fees are paid by the IMDs. He contends, however, that the Class Objectors, not the IMDs are his clients. The Class has requested disclosure of details of Choslovsky's arrangement with the IMDs, but no such disclosure has been made. Choslovsky also does not expressly deny being involved in preparing the IMD Notices. Since Choslovsky admits his fees are paid by the IMDs
3The Class questions whether this is the true motive since at least one IMD sent out the IMD Notices the day after the court Notice and the IMD Notices have indications that they were prepared ahead of time. But regardless of the IMDs' motives, the question is whether the IMD Notices are misleading and/or undermine the court Notice and whether a corrective notice would be appropriate.
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and apparently has consulted with the IMDs, for present purposes, it may be assumed that the IMDs are also his client.
The Class Objectors have moved for permission to contact other class members. Choslovsky seeks guidelines for responding to invitations from the IMDs to come speak at meetings at which residents and family members can ask questions about the Settlement, including how to object to it. It is proposed that Class Counsel will be provided at least 48 hours notice of any such meetings and also be permitted to speak at the meetings. The Class opposes granting permission for such contact and instead requests that Choslovsky be prohibited from contacting class members unless permission is first obtained from Class Counselor the class member initiates contact for purposes of seeking representation. The Class also requests that corrective notice be sent in order to correct misrepresentations made in the IMD Notices, but has not provided any proposed language or format for a corrective notice.' Both the Class Objectors and the IMDs have responded to the Class's requests.'
'The Class also requests that the court consider misrepresentations in the IMD Notices in weighing objections received from class members. Such a request is premature and will not be considered. The schedule previously set allows the parties to respond to any objections that may be received.
'The Class's motion to strike the IMDs' reply will be denied. The IMD will be granted leave to file the reply and the appearance of their attorney. The IMDs' reply has been considered.
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Since a Class has been certified, all members of the Class are deemed to be represented by Class Counsel unless a particular class member retains different counsel. See Kleiner v. First Nat'l Bank of Atlanta, 751 F.2d 1193, 1207 n.28 (11th Cir. 1985); Blanchard v. EdgeMark Fin. Corp., 175 F.R.D. 293, 300-01 (N.D. Ill. 1997) (quoting Manual for Complex Litigation § 30.2 at 234 (3d ed. 1995»; In re Potash Antitrust Litig., 896 F. Supp. 916, 920 (D. Minn. Jul 17, 1995) (same); Resnick v. American Dental Ass'n, 95 F.R.D. 372, 376 (N.D. Ill. 1982); Manual for Complex Litigation § 21.33 at 300 (4th ed. 2004) ("MCL 4th") ("Once a class has been certified, the rules governing communications apply as though each class member is a client of the class counsel."). Like most jurisdictions, the Professional Conduct Rules of this court provide: "During the course of representing a client a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter unless the first lawyer has obtained the prior consent of the lawyer representing such other party or as may otherwise be authorized by law. ", N.D. Ill. Loc. R. 83.54.2.
Class members, of course, are free to retain counsel other that Class Counsel. No class member will be prohibited from
'The Committee Comment provides in part: "This rule also covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question."
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initiating contact with another attorney for such purposes, even an attorney who already represents other parties involved in this matter.
Choslovsky already represents parties involved in this matter, that is, the Class Objectors. Therefore, in accordance with applicable rules, Choslovsky will not be permitted to initiate contact with additional class members without first obtaining permission from Class Counsel who represents the class members. The Class Objectors' motion will be denied and the Class's request to prohibit Choslovsky from initiating contact with additional class members without first obtaining permission from Class Counsel will be granted. Also, the IMDs should not initiate any further communications with residents or family members in which they solicit them to seek representation from particular attorneys. The Class does not request and this court will not preclude Choslovsky from responding to contacts from additional class members who may have learned of him through the IMD notices or other previous communications from the IMDs.
The IMD Notices expressly exhort residents and their families to object to the Settlement. The IMDs may express their views. This court, however, must ensure that proper and adequate notice is provided to the Class. This power extends to nonparties that interfere with this duty of the court. See In re Synthroid Mktg. Litig., 197 F.R.D. 607, 610 (N.D. Ill. 2000); MCL 4th § 21.33 at 300. The Class Objectors so concede and the
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IMDs do not contend otherwise. This includes the power to send notices correcting misleading communications with the Class. See Georgine v. Amchem Prod .. Inc., 160 F.R.D. 478, 518 (E.D. Pa. 1995); Ladegaard v. Hard Rock Concrete Cutters. Inc., 2001 WL 1403'007 *7 (N.D. Ill. Nov. 9, 2001); MCL 4th § 21.313 at 297, § 21.33 at 300-01. Cf. Synthroid, supra.
The IMD Notices appeal to residents' and family members' fears by overstating, as a foregone conclusion, the possibility that approval of the Settlement would result in IMDs being closed and residents being out on the street with no provision for food, medicine, or shelter. See. e.g., [270-1] at 4, 5 ("Where will I go? Who will I live with? Who will help me? How will I eat? When will I see my doctor?") .' The IMD Notices do not provide the full definition of who is a class member, stating simply that all residents of IMDs are class members and omitting, as was stated in the class notice, that being a class member also includes being someone who "with appropriate supports and services may be able to live in an integrated community setting."s See id. at 1, 3. It is misstated that appearing at the Fairness Hearing is the only
'The bracketed number is the docket entry number and page references are to the page numbers of the entry, not the page numbers of the individual documents within the entry.
sPrior to evaluations, it is not necessarily clear which residents fail to meet this definition and the parties apparently are presuming all residents are potential class members. Nevertheless, it is misleading to omit the full definition.
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opportunity to state objections, see id. at 1, because objections can also be submitted in writing.
It is stated: "Because the settlement does not provide any details on how Illinois will continue to fund facilities such as ours, however, there are no guarantees that facilities such as ours will continue to operate." Id. at 4. See also id. at 8 ("Although the settlement does not require closing any particular IMD, it also does not guarantee continued funding for IMDs. Without funding, the 'choice' to remain in an IMD may become no choice at all, and urns may eventually close."); 10. This is misleading because there is not presently any guarantee that Illinois will fund IMDs. If an IMD closes, residents would have the same procedural rights as they presently have. Also, it is estimated about half of the 4300 IMD residents could live in a community setting so there would still need to be IMDs even if all qualified persons relocated to a community setting.
Implications that those transferred to a community setting would be left without housing, food, or medical care, ~ at 4, 5, 10, are misleading in that the Settlement provides that the community placements are to include provisions for such.
It is stated that one lawyer who filed the case represents all 4300 IMD residents in Illinois, implying that one attorney is insufficient to represent 4300 people. Id. at 4. This is misleading because there is a team of lawyers representing the Class.
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The IMD Notice is misleading by implying, contrary to provisions of the Settlement, that doctors and case workers generally will not be consulted when making decisions to transfer to community living. See id. at 8, 10.
It is inaccurately stated that the attorneys representing the class brought the case on a "pro bono" basis, but will receive $1,990,000 plus expenses. Id. at 9, 10. The attorneys, however, did not take the case on a pro bono basis. Moreover, the attorneys at private law firms have agreed that any portion of a fee payment that they would otherwise be entitled to receive will go to the non-profit organizations involved in this lawsuit.
The Class has not submitted a proposed corrective notice nor recommended a procedure for such distribution. Therefore, no corrective notice will be required.
IT IS THEREFORE FOUND AND ORDERED as follows: (1) It is found that misleading statements have been distributed to IMD residents and their families. (2) Objecting Class Plaintiffs' motion regarding communications [270] is denied. (3) William Choslovsky and other attorneys representing Objecting Class Plaintiffs shall not initiate contact with additional class members. (4) Class plaintiffs' motion to strike reply brief [278] is denied.
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Case: 1:05-cv-04673 Document #: 285 Filed: 07/27/10 Page 11 of 11 PageID #:2319
(5) Certain IMDs' motion to file reply and appearance of attorney [281] is granted.
(6) August 5, 2010 motion hearing date is stricken.
ENTER:

)..1 DATED: JULY

, 2010

TATES DISTRICT JUDGE

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 Case 1:05-cv-04673 Document 61 Filed 07/28/2006 Page 1 of 15

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

ETHEL WILLIAMS, JAN WRIGHTSELL, DONELL )

HALL and EDWARD BRANDON, on behalf of

)

themselves and all others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

ROD BLAGOJEVICH, in his official capacity as

)

Governor of the State of Illinois, CAROL L. ADAMS, )

in her official capacity as Secretary of the Illinois

)

Department of Human Services, LORRIE STONE, )

in her official capacity as Director of the Division of )

Mental Health of the Illinois Department of Human )

Services, ERIC E. WHITAKER, in his official capacity )

as Director of the Illinois Department of Public Health, )

and BARRY S. MARAM, in his official capacity as )

Director of the Illinois Department of Healthcare and )

Family Services,

)

)

Defendants.

)

Civil Action No. 05 C 4673
Judge Hart Magistrate Judge Denlow

MEMORANDUM IN SUPPORT OF DEFENDANT’S RESPONSE TO MOTION FOR CERTIFICATION OF CLASS

BACKGROUND AND PROCEDURAL HISTORY

Plaintiffs filed their First Amended Complaint and Motion for Certification of Class on April 26, 2006. Defendants filed their Ans wer to the Plaintiffs’ First Amended Complaint on June 7, 2006. All discovery on the Motion for Certification of Class was concluded on July 14, 2006.
The four named Plaintiffs have been diagnosed with m ental illness and live in private intermediate care nursing homes, referred to as Institutions for Mental Disease ("IMDs"). Plaintifs move to certify a class consisting of"all persons who: (1) have a mental illness; (2) with appropriate supports and services, could live in the community; and (3) are institutionalized in privately-owned IMDs."

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Plaintiffs allege that Defendants have allowed themto be "needlessly segregated" in IMDs1 and failed to provide them with services in the most integrated setting appropriate to their needs. Plaintiffs’ claims are based on the Suprem e Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999), interpreting Title II of the American with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131, 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
LEGAL STANDARDS FOR CLASS CERTIFICATION
“[A] district court has broad discretion to deter mine whether certification of a class is appropriate.” Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993). Nonetheless, a class action “m ay only be certif ied if the trial court is satisf ied, after a rigorous analysis, that the prerequisites of” the rule governing class actions, Federal Rule of Civil Procedure 23, have been satisfied. General Telephone Co. of the Southwest v. Falcon , 457 U.S. 147, 161 (1982). “[T]he party seeking class certification assum es the burden of dem onstrating that certification is appropriate.” Retired Chicago Police Ass'n, 7 F.3d at 596.
Under Rule 23, an action may be maintained as a class action if all of the prerequisites of Rule 23(a) and at least one of the three elements of Rule 23(b) are satisfied. See Fed.R.Civ.P. 23. Rule 23(a) contains four express mandatory requirements. Id. First, the class must be so numerous that joinder of all members is impracticable (“numerosity”). Second, there must be questions of law or fact common to the class (“commonality”). Third, the claims or defenses of the representative parties must be typical of the claims or defenses of the class (“typicality”). Fourth, the Court must be satisfied that the representative parties and th eir counsel will fairly and adequately protect the interests of the class (“adequacy”). Id. In this case, the Plaintif fs allege that this action qualif ies under Rule 23(b)(2) - that "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed. R. Civ. P. 23(b)(2).
1 The facilities in which Plaintiffs reside are long-term care facilities, that by virtue of their population mix, are known by the funding term IMD. As stated in Defendant’s Answer to Plaintiffs’ First Amended Complaint, paragraph 3, “IMDs are nursing homes with a certain statistical percentage of residents with mental illness, and that percentage determines whether there is a federal match for Medicaid eligible residents.”
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“In determining the propriety of a class action, the question is not whether t he plaintiff or plaintiffs have stated a cause of action or will prevail on the m erits, but rather whether the requirements of Rule 23 are met.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (internal quotation omitted). However, “Eisen has not been interpreted so broadly...as to foreclose inquiry into whether plaintiff is asserting a claim which, assuming its merit, will satisfy the requirements of Rule 23 as distinguished froman inquiry into the merits of plaintiff's particular individual claim.” Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130 , 657 F.2d 890, 895 (7th Cir. 1981). The court is not required to accept allegations in the com plaint as true, but rather should make whatever factual and legal inquiries are necessary under Rule 23. See Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675-676 (7th Cir. 2001) ("nothing in the 1966 amendments to Rule 23, or the opinion inEisen, prevents a district court fromlooking beneath the surface of a complaint to conduct inquiries identified in the rule and exercise the discretion it confers"). Plaintiffs cannot tie the judge's hands by making allegations relevant to both the merits and class certification. Id. at 677.
ARGUMENT: CLASS CERTIFICATION MUST BE DENIED
I. THE COURT SHOULD DENY PLAINTIFFS’MOTION BECAUSE PLAINTIFFS FAIL TO SHOW THAT THE DEFENDANT HAS ACTED OR REFUSED TO ACT ON GROUNDS GENERALLY APPLICABLE TO THE CLASS
While Rule 23 analysis f requently starts with the Rule 23(a) requirem ents, in this case it makes sense to start with the Rule 23(b)(2) requirements because the Plaintiffs are unable to satisfy them and the analysis will provide this HonorableCourt with the background ofthe Plaintiffs. Rule 23(b)(2) requires that "the party opposing the class has acted or refused to act on grounds generally applicable to t he class, thereby m aking appropriate final injunctive relief or corresponding declaratory relief with respect to the calss as a whole." Fed. R. Civ. P. 23(b)(2).Plaintiffs assert that they have satisfied Rule 23(b)(2), because the Defendant has “acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Pl. Memo in Support of Mot. for Cert. of Class at 12. A court may make whatever factual and legal inquiries are necessary in determining whether the requirements of 23(b)(2) are met. See Szabo, 249 F.3d at 675-676. Simply put, the facts
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do not support such a conclusion. Contrary to the bleak picture painted by the Plaintiffs, t he practices and policies of the
Defendant have not "effectively den[ied] the Plaintiffs and class members the opportunity to move from IMDs to more integrated settings in the community." Pl. Memo in Support of Mot. for Cert. of Class at 13. Instead, a colser scrutiny of the records2 of the named Plaintiffs supports the opposite conclusion. In actuality, Plaintiffs are regularly assessed, inform ed of their rights to com munity services, evaluated for their readiness for co mmunity placement and are provi ded with the most integrated setting appropriate to their needs and desires.
For example, Plaintiff A, 3 living in an IMD 4 has received regular, ongoing, and individualized assessments of his/her physical and mental health needs to provide the optimum level of care best suited to Plaintiff A’s condition. Pl aintiff A’s treatm ent team is m ade up of the following professionals: a psyc hiatrist, a physician, a licensed nurse, a psychiatric rehabilitation service provider (hereinafter referred to as "PRSC" ), as well as treatm ent professionals at a day program.
Plaintiff A has been consistently found by treatment professionals to be in need of the level of care provided in an IMD. ( See for example 3909-3924). Plaintiff A's medical and psychiatric needs are assessed monthly by Plaintiff A’s psychiatrist, physician, PRSC, and the IMD's nursing staff (See for example 0329-0946; 3348-53; 3947-3952).
As recently as June 2006, Plaintiff A’s physician reviewed and approved Plaintiff A’s care
2 The term “records” refers to the documents obtained from Monroe Pavilion, Wilson Care, and Greenwood Care, bates stamped MP 00001- 04095, WC 0001 - 0785, GC 00001 - 01726, and WW 0001 - 1003, which detail the named Plaintiffs’ medical history and treatment.
3 Pursuant to Agreed Protective Order entered on January 30, 2006, and in an effort to protect Plaintiffs’ privacy, Plaintiffs are referred to as Plaintiff A, Plaintiff B, Plaintiff C, and Plaintiff D, the order of which does not correspond to the order that Plaintiffs are listed on Plaintiffs’ First Amended Complaint.
4In a further effort to adhere to the Agreed Protective Order entered on January 30, 2006 and to protect the Plaintiffs’ privacy, Defendant has omitted such other information that could be used to identify the Plaintiffs. For e.g., the Defendant omits the names of the IMDs in which the Plaintiff reside as well as that portion of the bates stamp which identifies the IMD that produced the records. Defendant will provide the full bates stamp numbers for each citation upon direction from the Court or request from the other parties.
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plan and certified that Plaintiff A continued to need the level of c are currently being provided. (3909) In fact, a physician reviews Plaintiff A’s caer plan and physicians orders on a monthly basis. (See for example 3909-3924). Additionally, in February 2006, several additional assessments were completed by the PRSC working wi th Plaintiff A. (4025-4037). Plaintiff A’s m ost recent assessment states that Plaintiff A should continue living in an IMD because of his/her nee d for medication management to reduce internal stimuli, social skills, and other independent living skills. (See 4025; 4027; 4030; 4031; 4032). A review of Pl aintiff' A’s February 2006 individualized comprehensive treatment plan shows that Plaintiff A's personal goal of discharge is included in the plan, but the plan goes on to say t hat the goal is not realistic because of Plaintiff A’s continued severe psychiatric symptoms. (3826).
Contrary to the Plaintiffs’ assertions in their First Amended Complaint, the records clearly indicate that Plaintiff A is provided with more than formulaic assessments that "lack any individual plan or review," and that the records do in fact reflect PlaintiffA's desire to live independently. See Pl. Amend. Compl. at 61, 68 and 79.
Plaintiff B lives in an IMD and has received regular, ongoing, and individualized assessments of his/her physical and mental health needs. Plaintiff B’s medical and psychiatric needs are assessed monthly by his/her physician, psychiatrist, PRSC, and the IMD’s nursing staff. (See for example 222-225, 227-228, 255-264; 286-309; 265-269). Pl aintiff B is also m onitored by a podiatrist and ophthalmologist to monitor Plaintiff B’s cataracts and potential vision deterioration. (See for example 211-213).
As recently as June 2006, Plaintif f B’s physicia n reviewed Plaintif f B’s care plan and certified that Plaintiff B was in need of the intremediate level of care. (0200). A physician reviews Plaintiff B’s care plan and physicians orders on a monthly basis. (See for example 200-207, 232239). Additionally, in November of 2005, comprehensive assessments of Plaintiff B were completed by the PRSC wherein Plaintiff B’s current le vel of functioning, rehabilitation potential, and discharge potential, including res ident expectations, were assessed. ( See 314-325). The PRSC recommended that Plaintiff B remain in the IMD to continue treatment and skills training. (318). Plaintiff B’s stated goal was to keep attending his/her day program until he/she graduates and to improve his/her people skills. (324). Plaintiff B’s previous desire to move to a less structured setting is reflected in his/her treatment plans as well as the approach staff would use to assist Plaintiff B.
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(2696). However, recent care plans do not reflect that Plaintiff B ha s a goal to be discharged.

(0111-0127). Contrary to the Plaintiffs’ assertions in their First Amended Complaint, the records

clearly indicate that Plaintiff B receives more than formulaic assessments that "lack any individual

plan or review," and that the records do in factreflect Plaintiff B's desire to live independently. See

Pl. Amend. Compl. at 61, 68 and 79.

Plaintiff C lives in an IMD and has received regular, ongoing, and individua

lized

assessments of his/her physical and mental health needs. Plaintiff C’s treatment professionals have

consistently found he/she to be in need of the level of care provided in an IMD. (See for example,

0204-0216). Plaintiff C ha s his/her medical and psychiatric needs assessed m onthly by his/her

psychiatrist, physician, PRSC, and the IMD’s nursing staff. (See for example 0226-0235; 0244-45,

0259-0287; 0240-0242) Additionally, in Novem ber of 2005, Pl aintiff C’s PRSC perform ed

comprehensive assessments on his/her current level of functioning and rehabilitation potential.

(0254). The records indicate thatPlaintiff C may require intermediate care placement indefinitely.

(0254) Plaintiff C’s goal at this tim e was to publish a comic strip. (0248). However, a m onthly

progress note from April 2006, written by Plaintiff C’s PRSC, indicates Plaintiff C is interested in

being assessed for placement in a group home. (0244).

In addition to assessments made by the IMD’streatment professionals, Plaintiff C’s records

from his/her day treatment program indicate that, as of November 2005, Plaintiff C was not ready

for placement in a less restrictive environment. (0180). Plaintiff C’s goals in his/her day treatment

service plan include increasing personal hygiene skills, gaining insight into his/her mental illness,

and working on creating a support system of peers. (See 0187-0195) It is evident that Plaintiffs’

assertions that Plaintiffs do not receive “m eaningful, adequate, and periodic assessm ents” is not

reflected in Plaintiff C’s records. See Pl. Amend. Compl. at 61, 68 and 79.

Plaintiff D lives in an IMD and has received regular, ongoing, and individualized

assessments of his/her physical and mental health needs. As recently as June of 2006, Plaintiff D’s

physician has found that Plaintiff D requires the levelof care provided in an IMD. (1217). Plaintiff

D’s records indicate that his/her PRSC and day treamt ent staff believe that he/she could eventually

live in a le ss structured residential setting. Plaintiff D has expressed a desire to live in a less

restrictive residential placement. Plaintiff D’s individual treatment plans, which include quarterly

and yearly assessments, reflect Plaintiff D’s goal. However, when day treatm ent and IMD staff

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Case 1:05-cv-04673 Document 61 Filed 07/28/2006 Page 7 of 15
attempt to assist him/her with this goal, Plaintiff D expresses the desire to stay at the IMD where he/she presently resides. (See for example 0222; 0183; 0226; 0930). Plaintiff D’s records indicate that when Plaintiff D is faced with following through with his/her goal to live more independently, he/she becomes ambivalent about pursuing the goa ls and/or refuses to work on them . (See for example 0222; 0183; 0226; 0930).
Moreover, the discharge policies a nd Resident’s Handbooks received from several of the IMDs address community discharge. (GC 115, 134; W C 54-50; GC 27, 28-0031, W C 20) The discharge planning policies state that residents are to be assessed for the potential to live in a less restrictive environment upon adm ission, and quarterly thereafter through the com prehensive assessment process. (W C 54, GC 27). Should the resident i ndicate an interest in discharge, a strength needs chart is completed noting the areas thatneed to be addressed in order for the resident to live in the com munity, including contact with the resident' s family and/or significant ot hers regarding resident's interest in discharge. (Id.) If the resident's psychiatrist, and family/significant others feel active discharge in appropriate, the resident is placed in Level III programming, which indicates that the resident may be ready for discharge in six months. (Id.). Level III programming includes referral to the IMDs' Discharge Planning Group to address issues related to preparation for successful discharge to the community, and the requirement that the resident pass a competency test for self-medication. (Id.). Additionally, one-on-one staff support and assistance wi th finding a placement are also provided. (Id.).
Based on the comprehensive individualized assessment processes involved in the nam ed Plaintiffs’ records, as well as the IMDs’ policies and procedures, it is clear that the Defendant has not denied Plaintiffs the opportunity to move from IMDs to more integrated community settings. Thus, it cannot be inferred that Defendants have not acted or refused to act on grounds generally applicable to the class i n violation of Olmstead. The records dem onstrate a thorough and comprehensive level of treatm ent planning to ensu re that Plai ntiffs are in the m ost integrated environment suitable to their needs and capabilities,requiring no need for injunctive or declaratory relief with respect to the class. Therefore, this Honorable Court should deny Plaintiffs’ Motion for Certification of the Class.
II. THE COURT SHOULD DENY THE PLAINTIFFS’ MOTION BECAUSE THEY DO NOT MEET THE REQUIREMENTS OF RULE 23(A)
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Even assuming Plaintiffs could satisfy the requriements of Rule 23(b)(2), they do not satisfy all of the requirements set forth in Rule 23(a). Two prerequisites to class certification include (1) that the named Plaintiffs ar e representative of the class and suffer the sam e injury as the class member, General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 155 (1982), and (2) that the class must be sufficiently defined so that the class members may be determined by an objective criteria. Wallace v. Chicago Housing Authority, 224 F.R.D. 420, 425 (N.D. Ill. 2004).
In deciding whether to grant class action certification, the court must make “whatever and legal inquiries are necessary” to determine whether the requirements of Rule 23 are met. Szabo, 249 F.3d at 675-676. Courts are not prohbi ited from making inquiries at certification that overlap merit issues when the purpose of the preliminary inquiry is to evaluate compliance with Rule 23. See id. Indeed, these types of prelim inary merits inquiry are often necessary to determ ine “whether the requirements of Rule 23 are met.” Eisen, 417 U.S. at 179, quoting Miller v. Mackey International, 452 F.2d 424 (5th Cir. 1971).
A. PLAINTIFFS CANNOT SHOW THAT THEY ARE MEMBERS OF THE PROPOSED CLASS
Plaintiffs cannot show that they are members of the proposed class because they do not meet the second prong of that class: "with appropriate supports and services, [Plaintiffs] could live in the community."
In Lewis v. Casey, 518 U.S. 343 (1996), the Court had to determine whether certain inmates could maintain a claimon behalf ofall other inmates against the Arizona Department of Corrections, alleging that they were deprivedof access to the courts because theywere furnished with inadequate legal research facilities. The Court held that the representative plaintif fs did not have standing to represent the class because they had failed to identyifanything more than isolated instances of injury in fact. Id. In its opinion the Court stated "that a suit may be a class action . . . 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 injury has been suffered by other, unidentified m embers of the class to which they belong and purport to represent." Id. at 357.
Similar to the inmate plaintiffs in Lewis, the named Plaintiffs in the instant case al lege a
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systemwide violation and seek systemwide relief. However, like the inmates in Lewis, Plaintiffs fail

to identify any injury to themselves attributable to the alleged systemwide violation. Plaintiffs have

been evaluated by physicians5 and found to be unsuitable for placement in a more integrated setting.

Because the Plaintiffs’ alleged injuries do not amount to violations of Olmstead, Plaintiffs would

inadequately represent a class for systemwide relief. See id. at 359.

In East Texas Motor Freight System, Inc. v. Rodriguez

, 431 U.S. 395 (1981),

Mexican-American city truck drivers brought a class action suit alleging em

ployment

discrimination. The truck drivers claimed that their employer's seniority policy and "no-transfer"

policy prohibiting drivers from transferring between term inals or from city to line-driver jobs

effectively denied them equal employment opportunities within the company because of their race

or national origin. Id. at 399. Relying on the finding of the District Court that the named plaintiffs

lacked the necessary qualifications to be line drivers, the Court held that the plaintiffs subsequently

could not have suffered an injury as a result of the alleged discriminatory practices, and therefore

they were not eligible to represent a classof persons who did allegedly suffer an injury.Id. at 403-

404.

Here, like the truck drivers in East Texas Motor Freight , the named Plaintiffs ha ve not

suffered the injury they allege the class has suf fered. Plaintiffs have been assessed by treatm ent

professionals and found in need of the level of care offered in IMDs or they have indicated a

preference to stay in an IMD. Like the truckdrivers who did not have the necessary qualifications

for the line-driver jobs, the Plaintiffs have been found by treatment professionals to need the level

of care they are currently receiving intheir respective IMDs. Therefore, underOlmstead, Plaintiffs

do not qualify for placement in a more integrated setting. Thus, Plaintiffs are not members of the

class that they are claiming to purportedly represent.

Just because Plaintiffs assert in their Moti on that they are m embers of the class does not make it so. Indeed, the Plaintiffs’ own recordsindicate otherwise. Defendants do not question that

5 The physicians and other health care professionals referred to throughout this brief are employed or contracted by the IMD’s and other service providers. The IMD’s have contracts with the state for the provisions detailed herein.
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the Plaintiffs have a mental illness and live in IMDs. However, because Plaintiffs have failed to show that with appropriate supports and services they could live in the com munity, they do not belong in the proposed defined class.
In Olmstead, the Court held that disabled indiviudals should be placed in community settings rather than institutions when a state's treatment prof essionals have determined that community placement is appropriate, the transfer is not opposed by the individual, and the placement can be reasonably accommodated, taking into account state resour ces and the needs of others with disabilities. 527 U.S. at 597.
The crux of the Plaintiffs’ argument is that they are ready to live in a less structured setting, but have been denied by Defendant the opportunity to do so, in violation of Olmstead. However, all of the named Plaintiffs have been recently found by treatment professionals to be in need of the level of care provided in their current IMD settings and/or have expressed a desire to remain at the IMD.
For example, Plaintiff A was assessed in June by his/her treating physician. (3909). After reviewing Plaintiff A’s ca re plan and physicians orders, the physician certified that Plaintiff A continued to require the intermediate level of care provided to Plaintiff A at the IMD. I(d.) Plaintiff A's current medical records, as well as Plain tiff A's records starting at adm ission to the IMD, indicate continued problems with verbal abuse of sat ff and peers, threatening behavior towards staff and peers, agitation requiring nursing staff to administer Haldol to help Plaintiff A calm down, and violations of the IMD's smoking policy (e.g. smoking in his/her room or in the bathroom ). (See 3950-59). Plaintiff A has a goal to live in a less restrictive environment or with his/her family. (3826). Currently, however, treatment professionals have determined that Plaintiff A is not ready for a lower level of care. (See 3909-24)
Plaintiffs allege systemwide violations and seek systemwide relief for violations of Title II of the ADA and Section 504 of the Rehabilitation Act. Pl. Amend. Compl. ¶ 7. Under Olmstead, the state w ould arguably have to place persons that f all within the proposed class into a m ore integrated setting if they have been determined appropriate for community placement. However, because the treatment professionals have det ermined that Plaintiff A is not suitable for a m ore integrated setting, he/she is not representative of the proposed class. Plaintiff A is not entitled to the relief which he/she seeks on behalf of the proposedclass because he/she has not suffered the same
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alleged injury as the members of the proposed class. Plaintiff B was also assessed by his/her trea ting physician in June of 2006. (200) After
reviewing Plaintiff B’s care plan and physicians orders, the physician certified that Pl aintiff B needed the level of care provided to Plaintiff B atthe IMD where Plaintiff B currently resides. (200) Plaintiff B’s records indicate that he/she previously expressed a desire to live in a less restrictive setting and in f act was discharged to live with his/her f amily before returning to the f acility following a psychiatric hospitalization. (See 2696; 2179, 2183, 679) Plaintiff B did not express a desire for discharge when Plaintiff spoke with his/her PRSC during a discharge assessm ent in November 2005. (314-325) Additionally, Plaintiff B's individual care plan dated May 2006 does not reflect his/her goal relating to discharge. (111-127). Plaintiff B's 2004 records are the last to reflect his/her desire to live i n an apartment or less structure living arrangem ent. (See 2696). Nevertheless, like Plaintiff A, the treatment professionals have found that Plaintiff B is not ready for discharge to a less restrictive environment. Plaintiff B is not entitled to the relief which he/she seeks on behalf of the proposed class because he/shehas not suffered the same alleged injury as the members of the proposed class.
Plaintiff C was also assessed in June of 2006 by his/her treating physician. (0204) Aft er reviewing Plaintiff C' s care plan and physicians orders, the physician certified that Plaintiff C needed the level of care providedto Plaintiff C at the IMD wherePlaintiff C currently resides. (Id.). Plaintiff C has a goal to live in a less structur ed living arrangement, but the PRSC working with him/her at the IMD indicated as recently as November 2005 that he/she will probably require ICF placement indefinitely. (0185; 0254). Moreover, the professionals working with Plaintiff C at his/her day treatment program documented in November 2005 that Plaintiff C was not suitable for a less restrictive residential environment. (0180). Plaintiff C's individualized service plan did not include a goal related to independent living. (See 0187-0195). The goals Plaintiff C is working on in day treatment relate to increasing daily livingskills such as personal hygiene, decreasing isolative behaviors and developing a support system of peers, as well as increasing Plaintiff C’s lim ited insight into his/her mental illness. (Id.) Plaintiff C’s day treatment team has stated in its notes that he/she has made “limited progress” with these goals and continues to struggle with the very basic goal of appropriate hygiene. (0180). Again, as with Plaintif fs A and B, Plaintiff C has not been found to be ready for discharge to a less restrictive environment. Plaintiff C is not entitled to the
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Case 1:05-cv-04673 Document 61 Filed 07/28/2006 Page 12 of 15
relief which he/she seeks on behalf of the proposedclass because he/she has not suffered the same alleged injury as the members of the proposed class.
Plaintiff D’s physician certified as recently as May of 2006 that he/she was in need of the intermediate level of care currently provided to Planitiff D at the IMD. (1217). Plaintiff D’s records reflect that he/she has had an ongoing personalgoal of being discharged to the community. (See for example 796) However, when staff attempt to address this goal with Plaintiff D, he/she expresses ambivalence, concern about living in the com munity, and a desire to stay at the IMD. ( See for example 222, 0183, 0226, 0930). Other professionals working with Plaintiff D, including his/her PRSC and staff at his/her day treatm ent program, have indicated that Plaintiff is capable of eventually living in a less restrictive environment.(See for example 222, 1873, 226, 930) However, Plaintiff D has indicated time and time again that he/she is not ready to move back to the community and that he/she wants to s tay in the IMD where Plaintiff D currently resides. ( Id.). Thus, while Plaintiff D’s treatm ent plans re flect Plaintiff D’s conti nued expression of the personal goal of eventual discharge to a less restrictive setting, theer has been no preparation for discharge to a more integrated setting in the community at this time because Plaintiff D indicated that he does not want to move. (See for example 775-777). Plaintiff D is not entitled to the relief which he/she seeks on behalf of the proposed class because he/she has nost uffered the same alleged injury as the members of the proposed class. Because Plaintiff D has notconsented to being placed into a more integrated setting, he/she is not representative of the proposed class.
Three of the named Plaintiffs’ records show thatthey have been assessed for their readiness to live in a less structured environment but have been found by the treatment professionals to be in need of support at the intermediate level. Treatment professionals have found the fourth Plaintiff to have the skills necessary to live in a less strucut red environment, but Plaintiff D's records reflect a desire to remain at the IMD. The proposed defined class includes IMD residents who are ready to live in a less structured setting but have been denied the opportunity to do so in vi olation of Olmstead. However, all of the named Plaintiffs have recently been found by treatment professionals to be in need of the le vel of care provided in their current IMD settings and/or have expressed a desire to remain at an IMD. Thus, this Honorable Court should find that the named Plaintiffs are not representative of the class.
12

Case 1:05-cv-04673 Document 61 Filed 07/28/2006 Page 13 of 15
B. PLAINTIFFS’ PROPOSED CLASS IS VAGUE AND OVER BROAD
Under Rule 23, an action may be maintained as a class action if all of the prerequisites of Rule 23(a) and at least one of the three elements of Rule 23(b) are satisfied. See Fed.R.Civ.P. 23. Rule 23(a) contains four express mandatory requirements. Id. In addition, “there is a ‘definiteness' requirement implied in Rule 23(a)” which dictates that “the description of a class [be] sufficiently definite to permit ascertainment of the class members.” Alliance to End Repression v.. Rochford, 565 F.2d 975, 977 (7th Cir.1977). “Com pliance with the rule might prevent [a court] from lumping people with divergent interests into a single class, but the rule ismeant to do just that.” [Emphasis in original.] In re Asbestos Litigation, 90 F.3d 963, 1008 (5th Cir. 1996).
A class can be properly identified so long as it is defined by objective criteria, such that it is administratively feasible for the court to determ ine whether a particular individual is a class member. Ludwig v. Pilkington North America, Inc,. 2003 WL 22478842, *1 (N.D.Ill. Nov.4, 2003); e.g., LeClerq v. The Lockformer Co,.2001 WL 199840, *6 (N.D.Ill. Feb.28, 2001) (“An identifiable and definite class exi sts if ‘its members can be ascertained by reference to objective criteria.”’) (quoting National Organization for Wome n v. Scheidler , 172 F.R.D. 351, 357 (N.D.Ill.1997)). “Whether the description of a class is sufficiently definite to permit ascertainment of the class members must, of necessity, be determined on a case-by-case basis.” Alliance to End Repression v. Rochford, 565 F.2d 975, 978 (7th Cir.1977).
As set forth pr eviously, the proposed class is defined as “all persons who have a m ental illness; with appropriate supports and services, oculd live in the community; and are institutionalized in privately-owned Institutions for Mental Diseases (IMDs).” Pl. Mot. for Cert. of Class at 1.
First, the proposed class is vague in that its definition does not sufficiently identify and define the class. Thus, the Court cannot readily ascertain its m embers by refer ence to som e objective criteria. Mentally disabled persons residing at Illinois IMDs suffer from a wide array of ailments. Treatment of each disabled person de pends on the diverse factual circum stances that surround each individualized IMD resident. The supports and services that would be appropriate to place one IMD resident in the com munity may not be appropriate to place another. Thus, “appropriate supports and services” does not speak to the degree of mental illness from which the IMD residents suffer.
13

Case 1:05-cv-04673 Document 61 Filed 07/28/2006 Page 14 of 15
The records show that quarterly and annual assessments of IMD residents are performed. The records also show that the nam ed Plaintiffs were found ineligible for placem ent into a more integrated setting on their last assessm ent. Plaintiffs have offered nothing beyond conclusory statements to support their assertions that they, or any person in the proposed class, are ready for placement.
Further, it is unclear what medical and mental threshold the IMD residents must meet to be deemed able to live in the com munity with “appropriate supports and services.” Bas ed on the Plaintiffs’ assertion that “thousands of these indvi iduals could live in a more integrated setting with appropriate supports and services” (See Pl. Mot. forCert. of Class at 2), it can only be assumed that the Plaintiffs have not set the bar very high.
Second, the proposed class is over broad. Olmstead states that non-consenting patients do not have to be moved. 527 U.S. at 602. Plaintiffs’ proposed class would seek to include all IMD residents able to live in the com munity, including non-consenting IMD residents. The proposed class does not account for the IMD residents’ choices with respect to placement.
The requested relief which Plaintiffs seek includes having Defendants provide them with services in the most integrated setting appropriate to their needs and provide thos e services with reasonable promptness. Pl. Mot. for Cert. of Class at 2. Plaintiffs contend that their interests are entirely coextensive with those of the proposed class. Pl. Mem o in Support of Mot. for Cert. of Class at 9. However, interests of the members of the proposed class diverge on the issue of consent to placement. The proposed c lass would bind those individuals who are opposed to placem ent though they may be able to be placed in the community “with appropriate supports and services.”
The proposed class is both vague and over broad and fails to meet the requirements of Rule 23. The stringent prerequisites of Rule 23(a) prevent lumping people with divergent interests into a single class. Therefore thisHonorable Court should deny the Plaintiffs’ Motion for Certification of Class.
14

Case 1:05-cv-04673 Document 61 Filed 07/28/2006 Page 15 of 15
CONCLUSION For the reasons stated above, Def endants respectfully request this Honorable Court deny Plaintiffs’ Motion for Certification of Class.
Respectfully submitted, ROD BLAGOJEVICH s/ Ray J. Koenig III Special Assistant Attorney General Counsel for Defendant Governor Rod Blagojevich Kerry R. Peck / Ray J. Koenig III Peck, Bloom, Austriaco & Mitchell, LLC Special Assistant Attorneys General 105 W. Adams, 31st Floor Chicago, IL 60603 (312) 201-0900
15

 
 Case 1:05-cv-04673 Document 59 Filed 07/28/06 Page 1 of 4

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

ETHEL WILLIAMS, JAN WRIGHTSELL, DONELL )

HALL and EDWARD BRANDON, on behalf of

)

themselves and all others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

ROD BLAGOJEVICH, in his official capacity as

)

Governor of the State of Illinois, CAROL L. ADAMS, )

in her official capacity as Secretary of the Illinois

)

Department of Human Services, LORRIE STONE, )

in her official capacity as Director of the Division of )

Mental Health of the Illinois Department of Human )

Services, ERIC E. WHITAKER, in his official capacity )

as Director of the Illinois Department of Public Health, )

and BARRY S. MARAM, in his official capacity as )

Director of the Illinois Department of Healthcare and )

Family Services,

)

)

Defendants.

)

Civil Action No. 05 C 4673
Judge Hart Magistrate Judge Denlow

DEFENDANT’S RESPONSE TO MOTION FOR CERTIFICATION OF CLASS

NOW COMES GOVERNOR ROD BLAGOJEVICH, byand through his attorneys, KERRY

R. PECK and RAY J. KOENIG III of Peck, Bloom, Austriaco & Mitchell, LLC, as Special Assistant

Attorneys General, and in response to Plaintiffs’ Motion for Certification of Class, states as follows:

1. Plaintiffs propose a class of all persons who:

(I) have a mental illness;

(II) with appropriate supports and services, could live in the community; and

(III) are institutionalized in privately -owned Institutions for Mental Diseases (“IMDs”).

2. Plaintiffs allege that Defendants have allowed them to be "needlesslysegregated" in

IMDs and failed to p rovide them with services in the most integrated setting appropriate to their

Case 1:05-cv-04673 Document 59 Filed 07/28/06 Page 2 of 4

needs. Plaintiffs’ claims are based on the Supreme Court's decision in Olmstead v. L.C., 527 U.S.

581 (1999), interpreting Title II of the American with Disabilities Act ("ADA"), 42 U.S.C§. § 12131,

12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.

3. An action may be maintained as a class action if all of the prerequisites of Rule 23(a)

and at least one of the three elements of Rule 23(b) are satisfied. See Fed.R.Civ.P. 23.

4. Under Rule 23(a), the class m ust be so num erous that j oinder of all m embers is

impracticable (“numerosity”). Second, there must be questions of law or fact common to the class

(“commonality”). Third, the claims or defenses of the representative parties must be typical of the

claims or def enses of the class (“typicality”). Fourth, the Court m ust be satisf ied that the

representative parties and their counsel will fairly and adequately protect the interests of the class

(“adequacy”). Fed.R.Civ.P. 23(a). In addition, “thereis a ‘definiteness'requirement implied in Rule

23(a)” which dictates t hat “the description of a class [be] sufficiently definite to perm it

ascertainment of the class members.” Alliance to End Repression v.. Rochford, 565 F.2d 975, 977

(7th Cir.1977).

5. Under Rule 23(b)(2), for which the Pl aintiffs allege that this action

qualifies, Plaintiffs must prove that "the part y opposing the class has acted or ref used to act on

grounds generally applicable to the class, thereby m aking appropriate final injunctive relief or

corresponding declaratory relief with respect to the class as a whole."See Fed. R. Civ. P. 23(b)(2).

6. Plaintiffs have f ailed to m eet the re quirements of 23(a) and 23(b) for class

certification.

7. Defendant has not acted or refused to act on grounds generally applicable to the

proposed class in violation of Olmstead. The documents obtained from Monroe Pavilion, Wilson

Care, and Greenwood Care, the facilities in which Pl aintiffs reside, detail the named Plaintiffs’

2

Case 1:05-cv-04673 Document 59 Filed 07/28/06 Page 3 of 4
medical history and treatment and are evidence that the Defendant has provided a thorough and comprehensive level of treatm ent planning to e nsure that Plaintiffs are in the m ost integrated environment suitable to their needs and capabilities.
8. Further, the claims or defenses of the named parties are not typical of the claims or defenses of the class. The proposed defined class includes IMD residents who are ready to live in a less structured setting but have been denied byDefendant the opportunity to do so in violation of Olmstead. However, all of t he named Plaintiffs have recently been found by the treatm ent professionals to be in need of the level of care provided in their current IMD settings and/or have expressed a desire to remain at an IMD.
9. Last, the proposed class is vague and over broad. Mentallydisabled persons residing at Illinois IMDs suffer from a wide ar ray of ailments, and treatment for each resident depends on his/her diverse factual circumstances. The proposed defined classdoes not sufficiently identify and define the class. Thus, the Court cannot re adily ascertain its m embers by reference to som e objective criteria. It is unclear what medical and mental threshold the IMD residents must meet to be deemed able to live in the community with “appropriate supports and services.”
10. Further, Olmstead states that non-consenting patients do not have to be moved. 527 U.S. at 602. Plaintiffs’ proposed class would seek to include all IMD residents able to live in the community, including non-consenting IMD residents.
11. Defendant has prepared the attached Memorandum in Support of his Response to Plaintiffs’ Motion for Certif ication of Class, which demonstrates that class certification is inappropriate.
3

Case 1:05-cv-04673 Document 59 Filed 07/28/06 Page 4 of 4 WHEREFORE, Defendant respectfully requests that this Honorable Court deny Plaintiffs’ Motion for Certification of Class.
Respectfully submitted, ROD BLAGOJEVICH s/ Ray J. Koenig III Special Assistant Attorney General Counsel for Defendant Governor Rod Blagojevich Kerry R. Peck / Ray J. Koenig III Peck, Bloom, Austriaco & Mitchell, LLC Special Assistant Attorneys General 105 W. Adams, 31st Floor Chicago, IL 60603 (312) 201-0900
4

 
 Case 1:05-cv-04673 Document 183-2 Filed 08/01/2008 Page 1 of 16
Williams et al.
v.
Blagojevich
Report of R. Gregory Kipper Navigant Consulting, Inc.
li ~IF Signed:
August 1, 2008

Case 1:05-cv-04673 Document 183-2 Filed 08/01/2008 Page 2 of 16 Williams et al. v. Blagojevich Report of R. Gregory Kipper August 1, 2008
TABLE OF CONTENTS
I. Introduction II. Nature of the Dispute III. Nursing Facilities and Community Mental Health Centers in
Illinois IV. Illinois' Commitment to Developing and Funding Community
Housing Options for the Mentally Ill V. Scope of Work

Attachment A: Attachment B:

Resume of R. Gregory Kipper Documents Considered

Case 1:05-cv-04673 Document 183-2 Filed 08/01/2008 Page 3 of 16
Williams et al. v. Blagojevich Report of R. Gregory Kipper August 1, 2008
I. Introduction This report was prepared by R. Gregory Kipper of Navigant Consulting, Inc.
("Navigant"). Navigant is an international consulting firm providing litigation, financial and other services to clients. I am a Director of Navigant. I have provided consulting services on a wide variety of health care-related financial and economic matters, including Medicaid disputes involving lost profits, damages, and economic projections. I have developed expert reports addressing the potential financial implications of Americans with Disabilities Act ("ADA") cases in New York and Pennsylvania. Attachment A provides a copy of my resume which includes a list of cases in which I have testified in the last four years. I have not authored any publications over the last 10 years. Navigant has been retained by legal counsel for the Illinois Office of the Governor to provide expert testimony related to the costs and financial issues relevant to this matter. Attachment B provides a list of the documents which I have considered to date. Navigant is being reimbursed at a rate of $250 per hour for testimony in this matter which is consistent with the rates charged by Navigant for work with state Medicaid agencies around the country.
II. Nature of the Dispute The Plaintiffs in this matter are a class consisting Illinois residents who (a) have a
mental illness; (b) are institutionalized in a privately owned Institution for Mental Diseases ("IMD"); and (c) with appropriate supports and services may be able to live in an integrated community setting.1
Plaintiffs seek relief in the form of a permanent injunction to (a) require Defendants to inform individuals with mental illnesses in the State that they may be eligible for community services and that they have the choice of such services; (b) require Defendants promptly to determine the class members' eligibility for community services; (c) prohibit Defendants from arbitrarily denying eligibility to individuals who are capable of living in a community setting with appropriate supports and services; and (d) require Defendants to promptly provide eligible class members with appropriate services sufficient to allow them to live in the most integrated setting appropriate to their needs.2
III. Nursing Facilities and Community Mental Health Centers in Illinois The Illinois Department of Public Health ("DPH") is responsible for monitoring
the licensing requirements of nursing facilities. The Department of Healthcare and Family Services ("HFS") oversees Medicaid funding3 and reimburses nursing facilities
1 Order Certifying Plaintiff Class, dated November 13,2006, p. 13. 2 Plaintiffs' First Amended Complaint, dated April26, 2006, pp. 28-29. 3 FY 2008 Community Mental Health Block Grant Application, p. 67.
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Case 1:05-cv-04673 Document 183-2 Filed 08/01/2008 Page 4 of 16
Williams et al. v. Blagojevich Report of R. Gregory Kipper August 1, 2008
on a per diem.4 HFS receives federal matching funds for Medicaid-eligible nursing facility residents.5 The facilities at issue in this matter are privately owned IMDs, which are a specific type of nursing facility, defined generally as a facility where 50% or more of residents are diagnosed primarily with behavioral health issues, including mental illness and drug or alcohol abuse.6 Under the federal Medicaid policy known as the IMD exclusion, the State does not receive federal matching funds for residents of IMDs ages 21 through 64, regardless of primary diagnosis.?
Community mental health centers, which provide mental health services to individuals living in the community, are funded and monitored by the Division of Mental Health ("DMH") within the Department of Human Services ("DHS").8 Traditionally, community mental health centers have been funded on a grant basis. Beginning in 2004, DMH initiated a System Restructuring Initiative which, among other objectives, was charged with converting the funding of community mental health services from a grant system to a fee-for-service system. 9 Mental health services provided in the community to Medicaid-eligible individuals not residing in IMDs are eligible for federal matching funds.10
IV. Illinois' Commitment to Developing and Funding Community Housing Options for the Mentally Ill DMH recognizes that transitioning eligible individuals into community settings
is an important aspect of the recovery-oriented system of care promoted by the System Restructuring Initiative.11 The 2008 Community Mental Health Services Block Grant Application describes the consistent efforts Illinois has made to develop housing options and support services for individuals with serious mental illness. Traditionally, a substantial portion of community mental health grant funding has been allocated for the provision of supervised and supportive residential services.12
DMH has also undertaken a new Permanent Supported Housing ("PSH") initiative in collaboration with national experts who have developed PSH in other states.I3 PSH is a tenant-based model linking integrated permanent housing with flexible
4 Exhibit 13 to the deposition of Joseph Holler. 5 Chris Power deposition, pp. 195-196. 6 Frank Kopel deposition, p. 90. 7 Joseph Holler deposition, p. 13. 8 FY 2008 Community Mental Health Block Grant Application, p. 47. 9 Mental Health Field Test Evaluation, bates number CP0011482 and CP0011525; Chris Power deposition, pp. 37-39. 10 Frank Kopel deposition, pp. 160-162. 11 Final Report on a Strategic Vision and Comprehensive Evaluation of the Illinois Public Mental Health System, May 2005, p. 37. 12 FY 2008 Community Mental Health Block Grant Application pp. 101-102. 13 FY 2008 Community Mental Health Block Grant Application p. 66.
-2-

Case 1:05-cv-04673 Document 183-2 Filed 08/01/2008 Page 5 of 16
Williams et al. v. Blagojevich Report of R. Gregory Kipper August 1, 2008
community-based services that are available to tenants but are not mandated as a condition of occupancy.14
V. Scope of Work I was asked by counsel to the Office of the Governor to quantify the economic
impact on the State of Illinois assuming Plaintiffs are granted relief. I anticipate my analysis will be based on a number of data elements, as follows:
1. The nature and costs to the State of services currently provided to individuals currently residing in IMDs Understanding the costs incurred by the State for individuals currently residing
in IMDs is the starting point to compare the current system to what is being requested by Plaintiffs. These costs include the residents' room and board as well as mental and physical health services.
2. The cost of screening individuals for eligibility for services in the community In 2006, there were an estimated 4,00015 to 6,00016 residents in Illinois' 27 private
IMDs.17 To determine the number of those mentally ill persons willing and able to live in the community, and the type of housing each person will require, individuals would need to be screened using an appropriate assessment tool.18 The cost of the screening is a relevant cost to the State.
3. The availability and cost of housing in the community The availability (or lack) of housing is a known barrier to transitioning eligible
individuals out of institutions and into the cornrnunity.19 Deposition testimony indicates that current residential programs in the State exhibit large variability in their program design and cost.2° Creating housing and maintaining individuals in housing is a large component of the cost of transitioning individuals into the community. It will be necessary to know the clinical needs of the individuals moving into the community in
14 Illinois Permanent Supportive Housing Assessment, Technical Assistance Collaborative, Inc., Final Report 10/03/2007, bates number 9829. 15 Exhibit 31 to the deposition of Dennis Smith (4,654 distinct persons living in IMDs on 6/30/2006). 16 Joseph Holler deposition, pp. 21-22 and Exhibit 7 (6,148 unique Medicaid-eligible IMD residents in FY 2006). 17 Exhibit 3 to the deposition of Joseph Holler. 18 Lindsay Huth deposition, pp. 31-32. 19 Final Report on a Strategic Vision and Comprehensive Evaluation of the Illinois Public Mental Health System, May 2005, pp. 7, 31, 37; Illinois Healthcare and Family Services Money Follows the Person Demonstration, Encouraging Community Transitions Grant, bates number 3959. 20 Lindsay Huth deposition, pp. 61-63 and Exhibit 9 and Exhibit 23.
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Case 1:05-cv-04673 Document 183-2 Filed 08/01/2008 Page 6 of 16
Williams et al. v. Blagojevich Report of R. Gregory Kipper August 1, 2008
order to determine the appropriate housing and related costs associated with those individuals.
4. The costs of moving persons into the community Depending on the housing option that is appropriate for the individuals moving
into the community, the State may incur one-time start-up costs in those cases where such things as furniture, appliances and security deposits are required for individuals to occupy their residence.21 I understand these can be as high as $2,800 per person.22
5. The number of IMD residents who would be able to transition into the community and the nature and costs of the services those individuals will require in the community The intensity and frequency of services required in the community will vary
from one individual to another.23 When an individual moves out of an IMD and into the community, the intensity, frequency and nature of required support services may change dramatically as a result of the change in the individual's living arrangement.24 The ultimate level of these services will have a substantial impact on the overall cost to the State. Therefore, it is essential that there be an accurate and thorough clinical assessment of the services required of IMD residents wishing to transition into a community setting.
* * * * * * * * * * The data elements described above will allow an economic model to be constructed that will price out the estimated cost to the State assuming Plaintiffs are granted relief. At this point, I would anticipate relying upon the State's expert clinicians to identify (1) the number of individuals who would be able to move into the community, (2) the nature and frequency of the services required by those individuals, and (3) the type of housing that would be appropriate for those individuals. Using this information, combined with Illinois' Medicaid payment policies, I will determine the costs of those required services. These costs will be added to the costs of housing, startup costs, and screening costs. The total of these cost components (adjusted for any savings the State may generate as individuals move out of IMDs) will be compared to the existing costs to the State for the IMD program to determine the incremental costs of granting the relief requested by Plaintiffs. I would anticipate performing these
21 Lindsay Huth deposition, p. 138. 22 Exhibit 23 to the deposition of Lindsay Huth. 23 Exhibit 20 to the deposition of Lindsay Huth. 24 Illinois Healthcare and Family Services Money Follows the Person Demonstration, Encouraging Community Transitions Grant, bates number 4060.
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Case 1:05-cv-04673 Document 183-2 Filed 08/01/2008 Page 7 of 16
Williams et al. v. Blagojevich Report of R. Gregory Kipper August 1, 2008
calculations and preparing a final report summarizing the costs after receiving the necessary clinical information from the State's expert clinician.
It has been my experience that once specific data is obtained, it is often appropriate to make some modifications to a proposed economic model because there may be previously unanticipated limitations on the data, or the data may raise other relevant issues that need to be incorporated into the model. For these and other reasons, it may be appropriate to modify the proposed methodology as clinical-related information becomes available.
Based on my reading of the Plaintiffs' expert clinicians' declaration and the Court Order outlining the proposed scope of their work, it seems unlikely that the Plaintiffs' expert clinicians will provide sufficient information for a comprehensive analysis of costs for individuals moving into the community. To the extent that the Plaintiffs' expert clinicians are merely planning to assess individual residents to determine their capacity to live in a more integrated setting, rather than providing a detailed determination of the specific services each individual would require in the community, the Plaintiffs' expert clinicians' work will be insufficient to complete the analysis I have described above. Their self-described scope "to assess the residents' capacity to live in a more integrated setting with adequate supports and services"25 appears to omit two critical steps determining the services that the transitioning individuals would require in the community, and determining the type of housing most appropriate for each individual.
It is also unclear how Plaintiffs' expert clinicians plan to address those times when residents do not consent to be interviewed. As the Court has indicated, this is an important factor that will go to the weight that can be given to the analyses presented by Plaintiffs' expert clinicians.26 The decision by Plaintiffs' expert clinicians to evaluate residents from only eight27 of the twenty-seven private IMD facilities also raises questions about their sampling process and the reasonableness of any extrapolations to the full IMD population. The reasonableness of Plaintiffs' expert clinicians' methodology cannot be fully evaluated until the details of that methodology are available for review.
25 Revised Declaration of Jacob Kraemer Tebes, Madelon Visitainer Baranoski and Paul Thomas Amble, dated November 1, 2007, p. 1. 26 Opinion and Order, dated January 2, 2008, p. 11. 27 Revised Declaration of Jacob Kraemer Tebes, Madelon Visitainer Baranoski and Paul Thomas Amble, dated November 1, 2007, p. 2.
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 Case 1:05-cv-04673 Document 295 Filed 08/10/10 Page 1 of 11

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

ETHEL WILLIAMS, et aI., Plaintiffs, v.
PAT QUINN, et al., Defendants.

)

)

)

)

No. 05 C4673

)

)

Judge Hart

)

Magistrate Judge Denlow

)

)

CERTAIN IMDs' OBJECTIONS TO PROPOSED SETTLEMENT AND CONSENT DECREE

Introduction

The parties primarily view IMD residents as a disabled minority in need of protection

under the Americans With Disabilities Act to help them succeed. The parties believe that the

IMD residents can decide whether to accept or object to the proposed settlement now, without

knowing the implementation plan details or how the State will pay for their care.

The IMDs primarily view IMD residents as suffering from a psychiatric illness who

require treatment and supervision to succeed. The IMDs believe that the IMD residents should

know the implementation plan details and how the State will pay for their care before deciding

whether to favor or object to the proposed settlement.

Therein lies the distinction which has led the IMDs to suggest to the parties and the Court

that the Court should not approve the proposed settlement unless and until the parties detail their

implementation plan and how the State will pay for community-based care. The IMDs submit

that neither the Court nor society as a whole should view the chronically mentally ill primarily as

a minority whose civil rights need protection, but must also accept the fact that the chronically

mentally ill have an illness helped only by strict adherence to therapy, treatment, and medication.

Case 1:05-cv-04673 Document 295 Filed 08/10/10 Page 2 of 11
Other protected minorities do not have disabilities rendering many of them unable to exercise informed consent or logical judgment.
One small example demonstrates why IMD residents need the implementation plan details now to make an informed decision about the proposed settlement.
People with mental illnesses who regularly take their appropriate medication often function well, suffer fewer symptoms, and are hospitalized less, resulting in lower health care costs. (Group Exhibit 1). The inherent problem is just when their medication seems to be working well, the mentally ill decide to stop taking their medication, because they feel good and think that their medication is no longer necessary. (Group Exhibit 2). Non-adherence to a medication regimen - - even for short time periods - - increases the likelihood of symptom relapse, hospitalization, and leads to higher health care costs, and even criminal behavior by the mentally ill. (Group Exhibit 2).
The IMD residents and their families know this all too well from personal experience. And yet, the parties have asked them to make a decision now about whether to favor or object to the settlement, without providing them with any detail about who will monitor residents' medication compliance, how this will be done, how often it will occur, or what happens if the State finds residents non-compliant with their medication.
It is this kind of minutia of the daily life of the mentally ill - - how will the State monitor their medication compliance? - - that will determine if the proposed settlement helps or harms the mentally ill, their families, the communities in which they live, and even the State's budget. The IMDs submit that the parties' proposed implementation plan must detail this kind of minutia of daily life now to allow residents to make an informed choice about whether to support or object to the proposed settlement.
2

Case 1:05-cv-04673 Document 295 Filed 08/10/10 Page 3 of 11
The Parties Have Not Met The Olmstead Requirement That The State Has Resources Available To Pay For The Implementation Plan Under Olmstead v. L.e., 527 U.S. 581 (1999), States must provide community-based services for people with mental disabilities who would otherwise be entitled to institutional services when (1) the State's treatment professionals determine that such placement is appropriate; (2) the affected persons do not oppose treatment; and (3) the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. 527 U.S. at 607 (emphasis added). Five years ago, the State itself asserted a "fundamental alteration" affirmative defense. This affirmative defense allows the State to show that, in allocating available governmental resources, immediate relief for the plaintiffs would prove inequitable, given the State's responsibility to care for and treat a large and diverse population of mentally disabled people. (Doc. 28 at p. 27-28, citing Olmstead, 527 U.S. at 604). The State's affirmative defense expressly states that the relief that Plaintiffs seek "would fundamentally alter the State's service, programs, and activities by disrupting the progress the State has made and continues to make. Furthermore, the cost ofplaintiffs, requested relief would jeopardize the State's ability to care for and treat other mentally disabled persons that require institutional or other services under a limited State mental health budget by forcing the State to cut other services in paying for plaintiffs' requested relief" (Doc. 28 at pp. 27-28, emphasis added). The State's financial position has changed for the worse since it asserted this Affirmative Defense five years ago. Yet, the State now asks the Court to accept, without inquiry or proof, the State's representation that it can pay for both community-based care and IMD care. Surely there is something wrong here.
3

Case 1:05-cv-04673 Document 295 Filed 08/10/10 Page 4 of 11
Notably absent from the parties' Joint Motion For Preliminary Approval of Consent Decree (Doc. 239) is any substantive statement regarding the State of illinois' ability to fund the implementation plan contemplated by the Consent Decree. The IMDs request that the Court take judicial notice of the State of Illinois' current financial crisis. This crisis has, among other things, caused the State to cut already sparse community-based mental health services to the bone. (Group Exhibit 3). Mental health advocates have warned that the State's $90 million in proposed cuts in its mental health budget would leave the State "without infrastructure needed to start moving psychiatric patients from nursing homes to community housing," as agreed to by the parties in this case. (Group Exhibit 3, p. 1).
The Court should not grant final approval to the settlement unless the parties satisfy the Court that the proposed settlement meets all three Olmstead requirements. Because the parties' Memorandum In Support Of Joint Motion For Preliminary Approval Of Consent Decree (Doc. 239) does not even address the third Olmstead requirement that the State can reasonably accommodate the community placement of IMD residents, while taking into account the State's available resources and the needs of others receiving disability services, the Court must require further proof of the State's ability to actually pay for implementing the proposed settlement.
The State's current financial condition in general, and its dramatic cuts in communitybased mental health services in particular, may explain the parties' reluctance to provide details of their proposed implementation plan before seeking final approval of the settlement. After all, putting pen to paper and actually figuring out who will do what to care for the class members who move to the community would force the parties to start thinking about how the State will actually pay for the proposed implementation plan.
Instead of trying to meet the third Olmstead requirement, the parties' Memorandum In Support Of Joint Motion For Preliminary Approval Of Consent Decree makes enthusiastic
4

Case 1:05-cv-04673 Document 295 Filed 08/10/10 Page 5 of 11
preclictions and sets broad-brush optimistic goals about community placement, monitoring and compliance, and the implementation plan. (Doc. 239 at pp. 3-6). But the only mention of money comes in the "Attorneys' Fees and Costs" section (Doc. 239 at p. 6) and in the perfunctory platitude that "Defendants have the ability to make supportive housing and other CommunityBased Settings available to class members and could do so without incurring undue costs (and would in fact realize savings from doing so) ... " (Doc. 239 at p. 9). The mentally ill and their families should not have to base their decision of whether to approve or object to the settlement based upon such an ephemeral promise from a State on financial life support. The Court should not base its decision on whether to approve a settlement which so fundamentally alt~rs the lives of so many IMD residents on such an ephemeral promise, when Olmstead requires consideration of the State's available resources.
Given the State of Illinois' current financial conclition, such perfunctory platitudes do not satisfy Olmstead's third requirement of proving that the State can reasonably accommodate residents, taking into account the State's available resources and the needs of others receiving disability services.
The last part of this third Olmstead requirement requires the parties to prove that the State can "meet the needs of others requiring disability services" while also moving eligible residents into the community. The "others requiring disability services" in this context are the IMD residents who are either inappropriate for community placement or who choose to stay in theirIMD.
The parties have offered the Court no proof that the State can pay for community-based services and for care to residents who remain in the IMDs. The parties guess that community placement might save the State money (Doc. 239 at p. 9) is not the proof of the availability of resources required by Olmstead. Ligas v. Maram, Slip Copy, 2010 WL 1418583 (N.D. Ill. 2010)
5

Case 1:05-cv-04673 Document 295 Filed 08/10/10 Page 6 of 11
at p. 3 (settlement that fails to consider State's ability to pay for proposed relief contradicts Olmstead); Bruggeman v. Blagojevich, 219 F.R.D. 430,435 (N.D. lll. 2004) (Olmstead requires inquiry into available resources under State's mental health budget).
The parties have repeatedly argued that no guaranty of continued IMD funding exists. That's true. But that fact does not alter the parties' obligation under Olmstead to "meet the needs of others requiring disability services" who remain in the IMDs, especially given the proposed Consent Decree's assurances that residents who do not want to move will not have to.
The Consent Decree itself provides for a five year transition period, during which some undetennined number of IMD residents will move into community settings. The Consent Decree therefore contemplates at least five years during which the State must pay for both communitybased care and IMD care. No one knows whether the State can afford such a dual system, especially given the State's current fiscal crisis, because the parties have not provided the Court with any proof of the State's ability to pay as Olmstead requires.
Court orders are powerful. But they cannot make more money available to the State to pay for the implementation plan. Olmstead requires that the Court consider the financial viability of the proposed Consent Decree. The parties have provided little for the Court to consider.
In the end, the question for the Court is simple: given the State's financial condition, should the Court approve a settlement which will fundamentally alter every aspect of IMD residents' lives without first receiving substantiation that the State can afford to pay for both community-based care and for residents who remain in IMDs? If the Court were an IMD resident, or the parent of an IMD resident, then the IMDs suggest that the answer is quite obvious.
6

Case 1:05-cv-04673 Document 295 Filed 08/10/10 Page 7 of 11
Without Implementation Plan Details, IMD Residents Cannot Make An Informed Decision About Approving Or Objecting To The Proposed Settlement
The parties' Memorandum In Support Of Joint Motion For Preliminary Approval Of Consent Decree And Approval Of Notice Plan (Doc. 239) accurately summarizes the proposed implementation plan by stating that the plan "will set forth specific tasks, timetables, and protocols to ensure that Defendants fulfill the requirements of each provision" of the proposed Consent Decree, and that the plan will address all aspects of the Consent Decree. (Doc. 239 at p. 6). Such promises of future details of how Defendants will provide the care involved in the minutia of daily life, made by a near-bankrupt government, does not give the IMD residents or their families any basis upon which to decide whether to support or object to the proposed settlement.
The proposed settlement leaves the IMD residents and their families to guess about whether the State will actually consult with a resident's psychiatrist, doctor, or family member before offering a resident community placement. The Consent Decree merely says that the State shall hold such consultations "when appropriate," but provides no guidance on when the State will consider such consultations so obviously crucial to such a decision "appropriate."
The proposed settlement leaves the IMD residents and their families to guess about every aspect of how the State will help them manage the minutia of their daily lives, such as who will remind them to take their medication, keep their doctor's appointments, and attend group sessions so crucial to their ability to succeed in the community.
Leaving IMD residents and their families to guess about how the well-oiled machine that is Illinois government will exercise its discretion and provide the care involved in the minutia of mentally ill residents' daily lives while the State runs deficits that would bankrupt any private entity hardly inspires confidence, even for those not suffering from mental illness.
7

Case 1:05-cv-04673 Document 295 Filed 08/10/10 Page 8 of 11

When coupled with many IMD residents' mental illnesses, which often preclude rational

thought and decision making, such guesswork seems a recipe for disaster for the residents, their

families, the community, law enforcement, and for the State itself.

Conclusion

A person not suffering from mental illness asked to decide to settle a lawsuit that might

change where they will live and how they receive care would insist on knowing the who, what,

when, where, why, and how minutia of such a settlement, and knowing how the defendant would

pay for such services. Depriving the mentally ill of such details when their illnesses often

interfere with rational thought and decision makes no senseI

Dated: August 10, 2010

Respectfully submitted,

ABBOTT HOUSE, ALBANY CARE, INC., BAYSIDE TERRACE, BELMONT NURSING HOME, INC., BRYN MAWR CARE, INC., CENTRAL PLAZA RESIDENTIAL HOME, INC., CLAYTON RESIDENTIAL HOME, DECATUR MANOR HEALTHCARE, INC., GREENWOOD CARE, INC., THORNTON HEIGHTS TERRACE, LTD., SHARON HEALTH CARE WOODS, INC., AND WILSON CARE, INC.

Robert K. Neiman (#6183605) MUCH SHELIST DENENBERG AMENT & RUBENSTEIN, P.C. 191 North Wacker Drive, Suite 1800 Chicago, lllinois 60606 Telephone: (312) 521-2000

By:

IslRobert K. Neiman

One of their Attorneys

1 The IMDs request that their counsel and one or two IMD administrators be allowed to speak about the issues raised in this brief at the September 7, 2010 fairness hearing.
8

Case 1:05-cv-04673 Document 295 Filed 08/10/10 Page 9 of 11 CERTIF1CATE OF SERVICE
I, Robert K. Neiman, an attorney, certify that on August 10, 2010, I electronically filed CERTAIN IMDS' OBJECTIONS TO PROPOSED SETTLEMENT AND CONSENT DECREE with the Clerk of the Court using the CMlECF system, which will send notification of such filings to:
See Attached Service List By IslRobert K. Neiman
1969126

Case 1:05-cv-04673 Document 295 Filed 08/10/10 Page 10 of 11

SERVICE LIST

Ethel Williams, et al. VS. Patrick Quinn, et al. Case No. 05 C 4673

VIA U.S. MAIL Karen B. Bower Bardon Center for Mental Health Law 1101 15th Street, NW Suite 1212 Washington, DC 20005

VIA U.S. MAIL Ira A. Burnim
Bazelon Center for Mental Health Law 1101 15th Street, NW
Suite 1212 Washington, DC 20005

Thomas D. Decker Thomas Day Decker & Associates, Ltd. 2100 W. 35th Street Chicago, IL 60609 deckerlawoffice@ameritech.net

Christopher S. Gange Illinois Attorney General's Office 160 North LaSalle Street, Suite N-1000 Chicago, IL 60601 christopher. gange@illinos.go','

Thomas A. Ioppolo Illinois Attorney General's Office 100 West Randolph Street Chicago, IL 60601 tioppolo@atg.state.il.us

Elizabeth J. Kappakas Kirkland & Ellis LLP 300 North LaSalle Chicago, IL 60654 bkappakas@kirldand.com

Peter C. Koch Office of the Attorney General 100 West Randolph Street Chicago, IL 60601 pkoch@atg.state.il.us

Raymond J. Koenig, III Peck, Blom, Austriaco & Mitchell, LLC 105 West Adams, 31st Floor
Chicago, IL 60603 rkoeni g@peckbloom.com

Karen E. Konieczny Illinois Attorney General's Office 160 North LaSalle Stree Suite N-lOOO Chicago, IL 60601 Karen.konieczny@illinois.gov

Max P. Lapertosa U.S. Department of Justice 1800 G Street NW Room 7033 Washington, DC 20006 max .lapertosa@accessliving.org

Angela D. Marston Kirkland & Ellis LLP 300 N. LaSalle Street Chicago, IL 60654 amarston@kirkland.com

Jennifer Mathis Bazelon Center for Mental Health Law 1101 15th Street, NW Suite 1212 Washington, DC 20005 jenniferm@bazelon.org

Case 1:05-cv-04673 Document 295 Filed 08/10/10 Page 11 of 11

Laura J. Miller Equip for Equality 20 North Michigan Suite 300 Chicago, IL 60602 laura@equipforequality.org
Vihar R. Patel Enterprise Law Group, LLP 70 W. Madison Street, Suite 740 Chicago, IL 60602 vihar@entemriselg.com
Amy F. Peterson Equip for Equality 20 North Michigan Suite 300 Chicago, IL 60602 amy@eguipforeguality.org
Joseph M. Russell Kirkland & Ellis LLP 300 N. LaSalle Street Chicago, IL 60654 jrussell @kirkland.com
Roger Baldwin Foundation of ACLU, Inc. 180 N. Michigan Avenue Suite 2300 Chicago, IL 60601 kthompson@aclu-il.org
Kenneth M. Walden Access Living 614 West Roosevelt Road Chicago, IL 60607 kwalden@accessliving.org
Benjamin S. Wolf Robert Baldwin Foundation of ACLU, Inc. 180 N. Michigan Avenue Suite 2300 Chicago, IL 60601 bwolf@aclu-il.org

Edward B. Mullen, III Access Living ll5 West Chicago Avenue Chicago, IL 60610 emulien @accessliving.org
Kerry R. Peck Peck, Bloom, Miller & Mitchell 105 West Adams, 31" Floor Chicago, IL 60603 kpeck@peckbloom.com
Timothy J. Ritchey Peck, Bloom, Miller & Mitchell 105 West Adams, 31" Floor Chicago, IL 60603 tritchey@peckbloom.com
Brent D. Stratton Office of the Attorney General 100 West Randolph Street Chicago, IL 60601 bstratton@atg.state.il.us
Lori N. Turner ACLU of illinois 180 N. Michigan Avenue Suite 2300 Chicago, IL 60601 lturner@aclu-il.org
John W. Whitcomb Equip for Equality 20 North Michigan, Suite 300 Chicago, IL 60602 john@equipforequality.org

2

1603678

 
 Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 1 of 25

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

JUDGE HART

ETHEL WILLIAMS and JAN WRIGHTSELL,
Plaintiffs
v.
ROD BLAGOJEVICH, in his official capacity as Governor of the State of Illinois, CAROL L. ADAMS, in her official capacity as Secretary of the Illinois Department of Human Services, LORRIE STONE, in her official capacity as Director of the Division of Mental Health of the Illinois Department of of Human Services, ERIC E. WHITAKER, in his official capacity as Director of the Illinois Department of Public Health, and BARRY S. MARAM, in his official capacity as Director of the Illinois Department of Healthcare and Family Services,
Defendants.

MAGISTRAfE JUDGE DENLOw
)
) )
~ (jiSCNO. 4 673

)

)

)

) DEMAND FOR

) DECLARATORY AND

) INJUNCTIVE RELIEF

)

)

) )

F I LED

)

)

)

)

Complaint for Relief

Plaintiffs Ethel Williams and Jan Wrightsell, residents of Monroe Pavilion Health and

Treatment Center, bring this action against the defendants Rod Blagojevich, Carol L. Adams,

Lorrie Stone, Eric E. Whitaker, and Barry S. Maram (collectively, "Defendants") for needlessly

segregating them in a restrictive institution for people with mental illness that fails to provide

them with services in the most integrated setting appropriate to their needs-in violation of their

rights under federal statutes and regulations-and allege as follows:

Preliminary Statement

I. Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131,

12132, prohibits discrimination against individuals with disabilities. The United States

Department of Justice has promulgated regulations under Title II stating that "a public entity

Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 2 of 25
shall administer services, programs, and activities in the most integrated selling appropriate to the needs of qualified individuals with disabilities." See 28 C.F.R. § 35.130(d) (emphasis added). Similarly, Section 504 of the Rehabilitation Act, 29 U.S.c. § 794, provides that no person with a disability shall "solely by reason of his or her disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
2. In Olmstead v. L.e., 527 U.S. 581 (1999), the U.S. Supreme Court held that disability-based discrimination includes placing people with mental illness in "unjustified isolation."
3. This action is brought to compel defendants' cessation of violations of these mandates with regard to Ms. Williams and Ms. Wrightsell. In 1992, Ms. Williams was discharged from the John J. Madden Mental Health Center and placed in the Monroe Pavilion Health and Treatment Center ("Monroe"). In 2002, Ms. Wrightsell was discharged from St. Joseph Hospital and placed in Monroe. Monroe is a private, intermediate-care nursing home classified as an Institution for Mental Diseases ("IMD"), designed-for private profit-to warehouse large numbers of people with mental illness in a segregated setting. Defendants have failed to assure that Ms. Williams and Ms. Wrightsell are placed in a more integrated setting where they could lead more independent and more productive lives within the community.
4. Defendants fail to prevent the inappropriate placement of individuals with mental illness in nursing homes that lack adequate staffing, psychiatric treatment, therapeutic activities and social rehabilitation. Some, such as Monroe, provide little more than shelter and board to individuals with mental illness.
2

Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 3 of 25
5. Ms. Williams and Ms. Wrightsell continue to languish in the segregated setting of Monroe, while equally affordable and more integrated residential settings exist and/or could be made available. Such residential settings would more appropriately meet Ms. Williams and Ms. Wrightsell's needs.
6. Defendants have violated Title II of the ADA and Section 504 of the Rehabilitation Act by failing to assure that their services are administered to Ms. Williams and Ms. Wrightsell in the most integrated setting appropriate to their needs. Instead, they have isolated and institutionalized Ms. Williams and Ms. Wrightsell at Monroe in violation of Title II of the ADA and Section 504 of the Rehabilitation Act.
Nature and Statutory Basis of Action 7. This action includes claims for violation of Title II of the ADA, 42 U.S.C. §§ 12131, 12132, which prohibits state and local government entities from discriminating against individuals with disabilities. 8. This action also includes claims for violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, which prohibits recipients of federal funding from discriminating against individuals with disabilities.
Parties 9. Ms. Williams and Ms. Wrightsell are Illinois residents who have mental illnesses that substantially limit their ability to perform major life activities. They also have a record of such mental illnesses, and are regarded by defendants as having such mental illnesses. They are therefore individuals with disabilities for purposes of the ADA and the Rehabilitation Act. 42 U.S.c. § 12102,29 U.S.C. § 705(20).
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Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 4 of 25
10. Ms. Williams and Ms. Wrightsell currently reside in Monroe, an intermediate care nursing home classified by the lllinois Department of Healthcare and Family Services ("DHFS") (formerly the lllinois Department of Public Aid) as an lMD. This classification is based on the fact that Monroe is an institution with more than sixteen beds that is primarily engaged in providing diagnosis, treatment or care of persons with mental disabilities. 42 U.S.C. § I396d(i). IMDs are funded by the state insofar as federal law prohibits Medicaid funding for IMD residents aged 22-64. Monroe residents must contribute all but thirty dollars ($30) of their monthly Supplemental Security Income ("SSI") checks directly to Monroe for their shelter and board. DHFS helps fund the remaining expenses associated with Ms. Williams and Ms. Wrightsell's shelter and board at Monroe.
II. Defendant Rod Blagojevich is the Governor of the State of Illinois, a public entity covered by Title 11 of the ADA. 42 U.S.C. § 12131(1). Governor Blagojevich is ultimately responsible for ensuring that lllinois operates its service systems in conformity with the ADA and the Rehabilitation Act. 20 ILL. COMPo STAT. 2407120(c). He is sued in his official capacity.
12. Defendant Carol L. Adams is the Secretary of the lllinois Department of Human Services CDHS"), the state agency responsible for assisting Illinois residents in achieving selfsufficiency, independence and health to the maximum extent possible by providing integrated family-oriented services, promoting prevention and establishing measurable outcomes in partnership with communities. DHS advertises itself as Illinois' largest agency, employing more than 15,000 people. It has an annual budget of nearly five billion dollars. DHS is a public entity covered by Title II of the ADA. 42 U.S.C. § 12131(1). DHS is the recipient of federal funds subject to the requirements of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Carol L. Adams is responsible for the operation and administration of DHS and is ultimately responsible
4

Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 5 of 25
for ensuring that DHS provides services in conformity with the ADA and the Rehabilitation Act. 20 ILL. COMPo STAT. 2407/20(c). She is being sued in her official capacity.
13. Defendant Lorrie Stone is the Director of the Division of Mental Health ("DMH"), the division of DHS responsible for helping to maximize community supports and develop skills for persons with serious mental illness. DMH is responsible for administering mental health screening and assessment of individuals with mental disabilities considered for placement in nursing homes like Monroe. DMH is responsible for the placement of individuals with mental illness in an appropriate facility or program. DMH is the recipient of federal funds subject to the requirements of Section 504 of the Rehabilitation Act, 29 U.S.c. § 794. DMH is a public entity subject to the requirements of Title II of the ADA, 42 U.S.C. § 12131. Dr. Stone is responsible for the operation and administration of DMH and for ensuring that DMH, as the division of DHS responsible for providing residential and mental health services to people with mental illness, operates in conformity with the ADA and the Rehabilitation Act. She is being sued in her official capacity.
14. Defendant Eric E. Whitaker is the Director of the Department of Public Health ("DPH"), the state agency responsible for licensing, regulating and inspecting all nursing homes, including IMDs, in the state of Illinois. DPH is responsible for certifying these facilities for participation in federal payment reimbursement programs. DPH is also responsible for ensuring that persons with mental illness are appropriately screened and placed in nursing homes, and receive discharge planning. 77 III Admin. Code §§300.4010, 300.4060; 210 ILL. COMPo STAT. 45/3-202.2. DPH is a public entity covered by Title II of the ADA. 42 U.S.c. § 12131(1). DPH is the recipient of federal funds subject to the requirements of Section 504 of the Rehabilitation
5

Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 6 of 25
Act, 29 U.S.C. § 794. Eric E. Whitaker is responsible for the operation and administration of DPH. He is being sued in his official capacity.
IS. Defendant Barry S. Maram is the Director of the Illinois Department of Healthcare and Family Services ("DHFS"), the state agency responsible for providing health care coverage for the citizens of Illinois and for administering medical assistance programs and other fiscal programs. DHFS helps fund IMDs for resident services, including assessment, care planning, discharge planning, and treatment. 89 Ill. Admin. Code §145.20, subchapter d; 305 ILL. COMPo STAT. 5/5-5.5. DHFS is a public entity covered by Title II of the ADA. 42 U.S.C. § 12131(1). DHFS is the recipient of federal funds subject to the requirements of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Barry S. Maram is responsible for operation and administration of DHFS and for ensuring that DHFS operates in conformity with the ADA and the Rehabilitation Act. He is being sued in his official capacity.
Jurisdiction and Venue 16. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 for civil actions arising under the laws of the United States and 28 U.S.C. § 1343 for actions arising under laws providing for the protection of civil rights. 17. Venue in the Northern District of Illinois is proper under 28 U.S.C. § 1391, as it is the judicial district in which a substantial portion of the events or omissions giving rise to these claims occurred. 18. Declaratory and injunctive relief are sought under 28 U.S.c. § 2201 el seq.
Background 19. Beginning in the late 1960s the State of Illinois began releasing thousands of individuals with mental illness from its psychiatric institutions. As this "de-institutionalization"
6

Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 7 of 25
progressed, however, the state failed to create and develop adequate community housing and community services for large numbers of "de-institutionalized" individuals. Instead, the state funneled funds to nursing home operators who profited from the large numbers of mentally ill individuals recently de-institutionalized. Throughout the 1970s and 1980s, nursing home operators opened up large, for-profit facilities ("IMDs") designed to house these individuals, oftentimes in settings nearly as segregated and restrictive as the state psychiatric institutions they had just exited. Today, individuals with mental illness continue to be discharged from psychiatric hospitals into these restrictive facilities, where they continue to be needlessly segregated from society-at-Iarge. This segregation occurs under the supervision of state agencies which, rather than helping re-integrate these individuals back into their communities by funding community-based programming, endorse and fund the IMDs. These IMDs do not prepare their residents to live independently and deny residents privacy and control over their lives. In many cases, the choice for persons with mental illness is between residence in an IMD-and compliance with its restrictive and controlling environment---or homelessness.
20. Some fortunate individuals are discharged from psychiatric hospitals and placed in residential programs that are designed to help them achieve independence and manage their illness. Many others, however, like Ms. Williams and Ms. Wrightsell, are instead discharged to nursing homes, many of which are IMDs, because they primarily serve individuals with mental illness. In most Illinois nursing homes designated as IMDs, nearly 100% of the residents have mental illness.
21. Defendant Eric E. Whitaker directs DPH, whose regulations permit the placement of an individual with mental illness in a nursing home, including an IMD, "for a medical reason
7

Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 8 of 25
directly related to the person's diagnosis of senous mental illness, such as medication management." 77 Ill. Admin. Code § 300AOOO(c).
22. Federal law prohibits Medicaid reimbursement to any individual who is older than 21 years of age and under 65 years of age and who is a resident of an IMD (42 U.S.C. § 1396d(a)(1 ), (2), (4)). Ms. Williams and Ms. Wrightsell are required to contribute all but thirty dollars ($30) of their monthly Supplemental Security Income ("SSI") check directly to Monroe for their shelter and board. DHFS helps fund the remaining expenses associated with Ms. Williams and Ms. Wrightsell's support and housing at Monroe.
23. Defendants have failed to integrate the state's mental health system by failing to develop and fund community alternatives. Many lMD residents could be served in more community-integrated settings; however, as a practical matter, the choice most residents face is either an IMD or homelessness. Most residents of Monroe and other lMDs remain there for years, because they are provided few opportunities to obtain services in more integrated settings and to become more independent within the surrounding community. lMDs segregate individuals with mental illness from others who do not have mental illness.
24. Like most IMDs, Monroe provides only beds, meals, and spartan rehabilitative servIces. For many individuals, including Ms. Williams and Ms. Wrightsell, the services provided by Monroe could be better provided III a more integrated, community residential program.
25. Instead of serving individuals with mental illness in more integrated settings, Defendants continue to fund and operate a mental health system wherein IMDs may profit from segregating and restricting these individuals' access to the outside world.
8

Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 9 of 25
26. Ms. Williams and Ms. Wrightsell seek declaratory and injunctive relief requiring Defendants to provide services to them in the most integrated setting appropriate to their needs.
Facts 27. lllinois has historically provided, and currently provides, inpatient hospitalization to individuals with mental illness in public and private psychiatric hospitals. 28. Some individuals discharged from psychiatric hospitals return home to family or friends. Others are discharged to various community residential programs for individuals with mental illness. 29. In many of these residential programs, individuals live in their own apartments with greater privacy and with a greater choice of activities than now found in the IMDs. Individuals in community programs sometimes live in integrated buildings with individuals who do not have mental illnesses. They usually are able to receive and entertain visitors and communicate by phone in privacy. Residents go to stores to shop for food and other necessities. Most of these individuals may go to doctors of their choice, as well as engage in social activities of their choice. They tend to these and other daily needs to the degree they are able, with supportive services provided by case managers. These programs are designed to foster independence and to enable individuals to become as self-sufficient as possible. Such programs are generally known as "supported housing." Unlike IMDs, they are not institutional in character. 30. When state agencies fail to develop or fund community services, individuals with serious mental illness are discharged to nursing homes, including IMDs.
Monroe Pavilion 31. Monroe is an intermediate-care nursing home, classified as an IMD, located at 1400 W. Monroe St., Chicago, lllinois 60607. It houses approximately 136 residents. Monroe's
9

Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 10 of 25
residents all have some form of mental illness. Common diagnoses include bipolar disorder, schizophrenia and major recurrent depression. Most residents at Monroe are active and ambulatory.
32. Like other Illinois nurslllg homes classified as lMOs, Monroe places many limitations on residents' autonomy and privacy. Residents are subjected to a highly regimented lifestyle in which most daily activities are conducted in one place in the company of large numbers of other individuals with mental illness, and which is characterized by restrictive rules and policies. In contrast, the more integrated community residential programs for individuals with mental illness afford residents much more choice, freedom and privacy, as well as the opportunity to maintain family relationships and to interact with and form friendships with people who do not have mental illness.
33. Meals are provided with little choice. Well over one hundred individuals share access to a single common area. Residents must line up for meals and for medication, which is only dispensed at specific times in the common areas. Residents are often paged to come take their medications if they do not line up to get them at the designated time.
34. Like other IMOs, Monroe provides very few recreational or other activities geared toward helping residents gain independence. Residents spend hours watching television in a common room or smoking cigarettes in a smoking room during the winter or outside on the sidewalk-beside the facility -when the weather allows. Residents wander aimlessly in and out of the common room and smoking room with nothing to do for the majority of the day. There are some activities on weekday afternoons that purportedly develop residents' practical skills; however, these activities are minimal, if not altogether ineffective. Some residents are able to attend day programs outside the facility, where they may learn skills to help them become more
10

Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 11 of 25
independent and more productive members of the community. However, at the end of the day, these residents must return to Monroe.
35. Residents of Monroe and other IMDs have almost no control over their personal space. Most Monroe residents share a bedroom and bathroom with three other people. Residents have no control over when or by whom their rooms are cleaned or who has access to their rooms.
36. Residents of Monroe have virtually no privacy. Payphones are located only in common areas, where anyone can overhear their conversation. Residents can receive calls only through the switchboard, and are usually paged over a loudspeaker to come to a phone that is not in a private space.
37. The lack of privacy makes it very difficult for residents to exercise their rights. Since it is difficult for residents to make phone calls without Monroe staff knowing they are doing so, residents may be reluctant to call advocates when they have a problem. This serves as a further disincentive to residents exercising any kind of independence.
38. Residents have little contact with members of the community outside the facility. Outsiders' visits are limited. Most visitors may not be received in privacy.
39. No food, liquids or medicines can be brought in to the facility without permission of the Administrator or nurse in charge.
40. The depersonalization and lack of mental stimulation III the facility erodes residents' ability to live independently.
41. Moreover, Monroe has policies and practices, similar to many IMDs, that prevent residents from moving out of the institution. Such policies create barriers that inhibit the ability of residents to obtain appropriate services and supports that will provide them an opportunity to
II

Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 12 of 25
lead more fulfilling and more independent lives outside Monroe. Discharge planning is not regularly conducted. Furthermore, residents receive virtually no education or information about the limited alternatives to nursing homes.
42. Residents of Monroe are typically not given a choice of what doctors and pharmacies to use. Residents' doctors and pharmacies are chosen by the facility.
43. Monroe's operator serves as the representative payee for residents and thus controls the residents' finances. As the representative payee, the operator receives residents' SSI checks directly from the government and distributes to residents the small personal needs allowance they are permitted to retain from these checks. This "personal needs allowance" is currently $30.00 a month, or about $1.00 per day. The remaining amount is retained for use by the IMD.
44. In fact, residents' privileges may be suspended if they attempt to lllcrease financial leverage by borrowing, loaning, buying or selling items to others.
45. Monroe provides little or no rehabilitative treatment designed to promote recovery, independence and integration into the community.
46. Monroe lacks a sufficient number of trained staff necessary to provide adequate care to individuals with mental illness and to provide them with the opportunities to lead happy, independent, and productive lives.
47. All residents of Monroe are subject to a Behavior Management Program ("BMP"). Monroe's BMP is a "four level" system similar to those used in psychiatric hospitals. A resident's freedom to leave the facility is restricted to different degrees based on the staffs assessment of how the individual complies with institutional rules. In short, residents must meet the behavioral standards set by the institution in order to obtain greater freedom. Residents who
12

Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 13 of 25
fail to perform required activities or who violate the rules are punished by being downgraded to a lower level or by losing their "pass" to leave the facility for a period of time. Each requirement for each level must be met to maintain status on that level.
48. All residents discharged to Monroe are, at first, assigned to "Level One." At this level, a resident is not allowed to leave the facility at any time, with the exception of a single monthly visit with family. In order to reach "Level Two," residents must participate in an informal solitary or group leisure activity daily, such as reading the newspaper or playing cards. "Level Two" residents are allowed to leave the facility only if accompanied by a member of the Monroe staff.
49. In order to reach "Level Three," residents must participate In at least one structured leisure activity weekly (e.g., bingo), wake up at 6 a.m. and clean one's living space and make one's bed by 9 a.m., enroll in a day treatment and/or work program, and take prescribed medications at scheduled times. A "Level Three" resident is allowed to leave the facility alone for limited periods of time. In order to reach "Level Four," residents must follow all the requirements of the preceding levels and, in addition, must participate in at least two structured leisure activities weekly, participate regularly and productively in a day treatment and/or work program, independently make needs known, be on time for meals, and attend assigned facility therapy groups regularly and productively. "Level Four" residents can leave the facility more freely, but are still subject to curfews and other restrictions.
50. In order to move up a level within Monroe's BMP, a resident must first complete a petition and get the approval and signature of all staff members with responsibility for the resident's care. If the petition is approved and signed, the resident must then wait an additional four weeks to move up to the approved level. Monroe's staff purportedly reviews petitions every
13

Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 14 of 25
week. However, petitions can only be submitted every few months. In addition, the Monroe staff reserves and regularly exercises the right to determine each resident's level, despite a resident's fulfillment of each level's stated requirements. In fact, Monroe's staff may even choose arbitrarily to add additional requirements for individual residents.
51. If a resident borrows, loans, buys, sells or gives items to others, he/she may be expected to cease this behavior before having a petition even considered by the staff.
52. A resident's level within Monroe's BMP is subject to forfeiture at all times. While it can take months to petition and earn a new level, a resident's current level-and as a result, his or her free access to the world outside of Monroe--can be reduced at any time for various infractions of the rules and regulations of Monroe. If a level that was previously earned by a resident is taken away, there is no process which will allow such resident to circumvent the lengthy process of petitioning to regain the level and consequent privileges that have been taken away.
Ethel Williams 53. Plaintiff Ethel Williams has been a resident of Monroe for approximately thirteen years, or since she was discharged from the John J. Madden Mental Health Center. Ms. Williams has been diagnosed with bipolar disorder. Ms. Williams is alert, active and ambulatory. She maintains close contact with her children and grandchildren. Ms. Williams spends her weekends with her brother and sister-in-law. She takes her medication independently while staying with her family. In the past, Ms. Williams has worked within the retail industry. 54. Ms. Williams wishes to leave Monroe and to live in a more integrated community setting, in order to accelerate her rehabilitation and to lead a more independent life. Professionals familiar with Ms. Williams's circumstances have indicated that she is ready to live
14

Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 15 of 25
in the community and that continued institutionalization is unnecessary and potentially harmful to her.
55. Defendants, however, have failed to provide meaningful, adequate, and periodic assessments of Ms. Williams's potential for placement in the most integrated community setting available. Ms. Williams has repeatedly told the staff of Monroe that she wishes to leave, and facility records indicate her desire to live more independently. Her medical records and progress notes indicate that she is a good candidate for placement in an integrated community setting. However, Defendants fail to ensure that Ms. Williams receives adequate discharge planning and fail to provide opportunities for her to lead a more independent and more productive life.
56. Ms. Williams entered Monroe at "Level One"; however, she has complied with institutional rules to the point where she has been "awarded" a "Level Four" status. As a "Level Four" resident, Ms. Williams is permitted to be outside Monroe for most of the day in order to, for example, visit family members.
57. Ms. Williams has repeatedly expressed an interest in returning to the community. She does not require nursing care in an institutional setting. She could live in the community if she were provided with the types of home and community-based supports and services currently provided in Illinois. However, Defendants have failed to ensure adequate discharge planning for Ms. Williams, even though she has demonstrated skills (e.g., working in the retail industry) that would enable her to succeed in more independent living.
58. Ms. Williams has no significant physical health needs being addressed by Monroe.
Jan Wrightsell 59. Plaintiff Jan Wrightsell, has been a resident of Monroe since early 2002, when she was discharged from the psychiatric unit of Chicago'S St. Joseph's Hospital. Ms. Wrightsell has
15

Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 16 of 25
been diagnosed with schizophrenia and has a history of major recurrent depression. She is alert, active and ambulatory. Ms. Wrightsell maintains close contact with her family, and has substantial prior work experience as a sales clerk. She is well-educated and enjoys reading, writing short stories and composing poetry. Interacting with animals and pets is one of her favorite activities.
60. Ms. Wrightsell wishes to leave Monroe in order to live in a more integrated community setting, in order to accelerate her rehabilitation and to lead a more independent life. Professionals familiar with her circumstances, and with whom Ms. Wrightsell has interacted in her day programs, have indicated that she is ready to live in a less restrictive program in the community and that continued institutionalization is unnecessary and potentially harmful to her.
61. Defendants, however, have provided only formulaic assessments of Ms. Wrightsell that lack any individual plan or review. Ms. Wrightsell has repeatedly told the staff of Monroe that she wishes to leave; however, facility records fail to reflect her desire to live more independently. Defendants fail to ensure that Ms. Wrightsell receives adequate discharge planning and fail to provide opportunities for her to lead a more independent and more productive life. Instead, Defendants have consigned hcr to an institution that refuses to help her progress toward social independence.
62. Ms. Wrightsell entered Monroe at "Level One"; however, she has complied with institutional rules to the point where she has been "awarded" a "Level Three" status. As a "Level Three" resident, Ms. Wrightsell is only permitted to leave Monroe on her own for between two and six hours per day, depending on the length of the pass assigned to her at any given time. Although she has fulfilled "Level Four" requirements (e.g., successfully graduating from several day programs), Monroe refuses to grant her "Level Four" privileges.
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Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 17 of 25
63. Ms. Wrightsell has repeatedly petitioned Monroe to move to "Level Four." However, her petitions have been regularly denied by Monroe staff with neither sound nor written reason. In fact, Ms. Wrightsell's privileges have often been suspended based on arbitrary reasons (e.g., bringing her winter coat to the cafeteria).
64. Ms. Wrightsell has repeatedly expressed an interest In returning to the community. She does not require nursing care in an institutional setting. She could live in the community if she were provided with the types of home and community-based supports and services currently provided in Illinois. These supports and services provided in the community would cost the same or less than the amount currently spent on Ms. Wrightsell's care. However, Defendants fail to ensure adequate discharge planning for Ms. Wrightsell, even though she has demonstrated skills (e.g., working as a cook in the day program she now attends) that would enable her to succeed in more independent living.
65. Ms. Wrightsell has no significant physical health needs being addressed by Monroe.
The Roles of Defendants 66. Defendants are all charged with administering and/or overseeing long-term care services for individuals with mental illness in both institutional and community settings. 67. Over six years after Olmstead was decided, Defendants have failed to develop a comprehensive and effective working plan for identifying people with mental illness unnecessarily institutionalized in nursing homes and moving them into more integrated settings. The defendants are responsible for the operation and administration of their respective agencies and are ultimately responsible for ensuring that their agencies provide services in conformity with the ADA and the Rehabilitation Act. 20 ILL. COMP. STAT. 2407/20(c). However, no viable
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working plan has been produced nor have Defendants evidenced a commitment to action which would show "ongoing progress toward community placement." See Penn. P.P.A., Inc. v. Penn. Dept. ofPublic Welfare, No. 03-1461,2005 WL 674500 (3d Cir. March 24,2005).
68. DHS' duties also include monitoring the care given by nursing homes, including IMDs, and providing input into the licensing process on such matters as staffing and program content.
69. DHS is responsible for the screening of individuals such as Ms. Williams and Ms. Wrightsell, who are being considered for admission to nursing facilities and who are ages 18 through 59, and for individuals aged 60 and over who have a severe mental illness, in order to determine whether nursing facility care is appropriate. 77 Ill. Adm. Code § 300.615.
70. DPH, in conjunction with DHS, is required to develop minimum standards for licensing facilities for people with mental illness, including IMDs. 210 ILL. COMPo STAT. 45/3-203.
71. DPH is also responsible for regulating and inspecting all nursing facilities, including IMDs, in Illinois. DPH is required to develop a curriculum for training nursing assistants and habilitation aides. 210 ILL. COMPo STAT. 45/3-206.
72. DPH is responsible for promulgating rules governing the provision of services by nursing facilities to residents who have a serious mental illness, including assessment, care planning, treatment, and discharge planning. 210 ILL. COMPo STAT. 45/3-202.2.
73. DHFS classifies nursing homes as IMDs and administers funding to IMDs as appropriate. 89 Ill. Adm. Code §§ 145.20, 145.40, I40.500. DHFS is required to verify the need for group care for individuals with severe mental illness in accordance with 89 Ill. Adm. Code § 140.642. DHFS is also required to approve the placement in the nursing facility based upon a
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Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 19 of 25
detennination that a need for nursing level of care exists and that the nursing facility meets state law requirements. An individual will be determined to need this level of care if he or she needs a) professional observation for medication monitoring, adjustment or stabilization; or b) daily supervision and assistance in at least two areas: self-maintenance, social functioning, community living activities, and work-related skills. DHFS authorizes payment to the nursing facility. 89 Ill. Adm. Code § 140.510.
74. Like many individuals who live in Monroe and other lMDs, Ms. Williams and Ms. Wrightsell were discharged directly from a psychiatric unit of a private hospital to an lMD.
75. There are long waiting periods for admission to supported housing programs, so people with serious mental illness are inappropriately discharged from psychiatric hospitals to Monroe and other IMDs because of insufficient capacity in community residential programs, including supported housing. The decision to discharge individuals such as Ms. Williams and Ms. Wrightsell to Monroe or any other IMD, as opposed to supported housing, is not based on any relevant treatment criteria or diagnosis, but simply on the lack of availability of appropriate alternatives.
76. Once individuals, such as Ms. Williams and Ms. Wrightsell, are placed in Monroe or some other IMD, opportunities for discharge to supported housing are rare.
77. Defendants do not consider the needs of Ms. Williams and Ms. Wrightsell or other IMD residents for more integrated housing when they plan for development of integrated supported housing programs.
78. Despite the fact that they are responsible for ensuring appropriate placement of individuals with mental illness and for establishing appropriate discharge procedures, Defendants
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have not provided Ms. Williams and Ms. Wrightsell with information that will enable them to lead more independent and more productive lives in society.
79. In violation of their statutory duties, Defendants are administering their programs and providing services in a manner that supports and encourages the segregation of individuals with mental illness, by inappropriately relying on IMDs such as Monroe.
80. Defendants have developed and funded long-term residential programs that enable individuals to receive services in settings far more integrated than nursing homes.
81. However, Defendants have failed to develop and fund sufficient capacity in these programs, forcing into nursing homes thousands of individuals with mental illness who could, and would, prefer to be served in more integrated settings.
82. Defendants have policies, rules and practices that discourage the placement of individuals with mental illness in integrated residential settings and, instead, perpetuate the current system of IMDs such as Monroe. Changing these policies, rules and practices would not be a fundamental alteration under Defendants' service system for people with psychiatric disabilities. Services can be provided in a more integrated setting at a cost equivalent to or less than the average cost of providing services to a nursing home resident. Moreover, Defendants already provide the services needed by Ms. Williams and Ms. Wrightsell to other people with mental illness.
Count I Violation of the Americans With Disabilities Act Mandate To Administer Services And
Programs In The Most Integrated Setting 83. Ms. Williams and Ms. Wrightsell repeat and reallege paragraphs 1-82 above. 84. Ms. Williams and Ms. Wrightsell are individuals with serious mental illnesses. Each Plaintiff has a mental impairment that substantially limits one or more major life activity,
20

Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 21 of 25
such as self care and interaction with others. They also have a record of such mental illnesses, and are regarded by defendants as having such mental illnesses.
85. Ms. Williams and Ms. Wrightsell reside in Monroe, a facility classified as an IMD, and each is qualified to participate in a more integrated community residential program that would meet their mental health needs. Ms. Williams and Ms. Wrightsell are, therefore, qualified individuals with disabilities within the meaning of 42 U.S.C. § 12131(2).
86. Defendants Blagojevich, Adams, Stone, Whitaker and Maram are responsible for the operation of public entities covered by Title 11 of the ADA. 42 U.S.c. §§ 12131(1 )(A) and (B).
87. The United States Department of Justice has promulgated regulations under Title 11 of the ADA stating that "a public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." See 28 C.F.R. § 35.130(d).
88. Defendants are obligated under the ADA to administer lllinois programs in a manner that supports the availability of services and programs in the most integrated setting for individuals with disabilities.
89. Serving Ms. Williams and Ms. Wrightsell in a more integrated setting can be reasonably accomplished.
90. Defendants have failed to meet this obligation. Defendants are instead requiring Ms. Williams and Ms. Wrightsell to live and receive services in Monroe, a nursing home for people with mental illness, although this location is not the most integrated setting appropriate to their needs.
Count II
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Case 1:05-cv-04673 Document 1 Filed 08/15/2005 Page 22 of 25
Violation Of The Americans With Disabilities Act's Prohibition On Using Methods Of Administration That Subject Plaintiffs To Discrimination
91. Ms. Williams and Ms. Wrightsell repeat and reallege paragraphs 1-82 above. 92. Ms. Williams and Ms. Wrightsell reside in Monroe, an IMD, and each is qualified to participate in a more integrated community residential program that meets their mental health needs. 93. Title II of the ADA, 42 U.S.C. §§ 12131, 12132, prohibits Defendants from discriminating against individuals with disabilities. 94. Regulations implementing Title II of the ADA, 28 C.F.R. § 35.130(b)(3), provide that "a public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) That have the effect of subjecting qualified
individuals with disabilities to discrimination on the basis of disability; [or1 (ii) That have the
purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities ...."
95. Defendants, however, utilize methods of administration that have the effect of subjecting Ms. Williams and Ms. Wrightsell to discrimination. Defendants continue to utilize methods of administration that perpetuate Ms. Williams and Ms. Wrightsell's placement in Monroe, rather than facilitating their receipt of services in the most integrated setting appropriate to their needs.
Count III Failure to Administer Services in the Most Integrated Setting Appropriate in Violation of
the Rehabilitation Act 96. Ms. Williams and Ms. Wrightsell repeat and reallege paragraphs 1-82 above. 97. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, provides:
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No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 98. DPH, DHFS, DMH and DHS are recipients of Federal financial assistance. 99. Defendants Blagojevich, Adams, Stone, Whitaker and Maram are responsible for the operation ofDPH, DHFS, DMH and DHS. 100. Ms. Williams and Ms. Wrightsell reside in an IMD and are qualified to participate in a more integrated community residential program that meets their mental health needs. 101. Section 504 of the Rehabilitation Act requires Defendants to serve individuals with disabilities in the most integrated setting appropriate to their needs. 102. Serving Ms. Williams and Ms. Wrightsell in more integrated settings can be reasonably accomplished. 103. Defendants have violated Section 504 of the Rehabilitation Act by failing to administer services to Ms. Williams and Ms. Wrightsell in the most integrated setting appropriate to their needs.
Count IV Violation of the Rehabilitation Act's Prohibition on Using Methods of Administration That
Subject Plaintiffs to Discrimination 104. Ms. Williams and Ms. Wrightsell repeat and reallege paragraphs 1-82 above. 105. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 prohibits Defendants from discriminating against individuals with disabilities. 106. Regulations implementing Section 504 of the Rehabilitation Act provide that "a recipient may not, directly or through contractual or other arrangements, utilize criteria or methods of administration: (i) That have the effect of subjecting qualified handicapped persons to discrimination on the basis of disability; [or] (ii) That have the purpose or effect of defeating
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or substantially impairing accomplishment of the objectives of the recipient's program with respect to handicapped persons .... " 45 C.F.R. § 84.4(b).
107. DPH, DHFS, DMH and DHS are recipients of Federal financial assistance. 108. Defendants Blagojevich, Adams, Stone, Whitaker and Maram are responsible for the operation ofDPH, DHFS, DMH and DHS. 109. Defendants utilize methods of administration that have had the effect of subjecting Ms. Williams and Ms. Wrightsell to discrimination. Defendants utilize methods of administration that perpetuate the current IMD system rather than facilitate the receipt of services in the most integrated setting appropriate to the needs of Ms. Williams and Ms. WrightseIl, which have resulted in Ms. Williams and Ms. Wrightsell's placement in Monroe, a setting that is segregated and inappropriate.
Prayer for Relief WHEREFORE, Ms. Williams and Ms. Wrightsell request the following relief:
a. Declaratory and injunctive relief, including an order requiring that Defendants promptly take such steps as are necessary to enable Ms. Williams and Ms. Wrightsell to recei ve services in the most integrated setting appropriate to their needs;
b. An award of prevailing party costs, disbursements and attorney fees; c. Such other relief as the Court deems appropriate.
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Dated: August IS, 2005

Respectfully submitted,
AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS Benjamin S. Wolf 180 North Michigan Avenue Suite 2300 Chicago, Illinois 6060 I Telephone: (312) 201-9740 Facsimile: (3 I2) 201-9760
EQUIP FOR EQUALITY Amy F. Peterson 20 N. Michigan, #300 Chicago, IL 60602 Telephone: (312) 341-0022 Facsimile: (312) 341-0295
KIRKLAND & ELLIS, LLP Donna M. Welch Joseph M. Russell 200 East Randolph Drive Chicago,IL 60601 Telephone: (312) 861-2000 Facsimile: (312) 861-2200
ATTORNEYS FOR PLAINTIFFS

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 Case 1:05-cv-04673 Document 303 Filed 08/17/10 Page 1 of 29

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

Ethel Williams, et aI., Plaintiffs,
vs. Patrick Quinn, et aI.,
Defendants.

) ) ) No. 05 C 4673 ) ) Judge Hart ) ) ) )

MEMORANDUM IN SUPPORT OF OBJECTIONS TO PROPOSED CONSENT DECREE BY ABSENT CLASS MEMBERS AND FAMILY MEMBERS

Case 1:05-cv-04673 Document 303 Filed 08/17/10 Page 2 of 29
TABLE OF CONTENTS
I. INTRODUCTION ....................................................................................................................... 1 II. FINAL APPROVAL STANDARD ......................................................................................... 3 III. BACKGROUND .................................................................................................................... 4 IV. THE IMDs IN CONTEXT .................:................................................................................... 6 V. THE EXPERTS...................................................................................................................... 10 VI. DISCUSSION...................................,................................................................................... 12
A. The Class Definition ......................................................................................................... 12 B. Specific Objections to the Decree ...............................................................~ ..................... 13
1. Details Lacking: Implementation Plan should be Presented Now................................. 14 2. Implementation Plan should Allow for Comment and Require Court Approval ........... 15 3. Evaluation Process should be a Clearly Defined "Opt-In" Process ................................ 15 4. Doctors, IMD Staff, Guardians, and Family should be Consulted ................................. 17 5. Evaluator should be Neutral and Well-Credentialed ...................................................... 18 6. All Residents should have the Right to Return to an IMD ............................................. 19 7. IMD Residents should also be Offered Services ............................................................ 19 8. State should continue to Fund IMDs consistent with Existing Practice .........................20 VII. CONCLUSION ..............................................................................................................,..... 24·
EXHIBITS Exhibit 1 - Written Objections Exhibit 2 - Expert Report of Christopher G. Fichtner, M.D., CPE, FACPE Exhibit 3 - Expert Report of Mitchell L. Glaser, M.D. Exhibit 4 - "Jail More Likely than Hospital for Severely Mentally Ill," Mark Moran, 45
American Psychiatric Association Exhibit 5 - "Deadline set to close Chicago nursing home," Chicago Tribune, March 8, 2010 Exhibit 6 - April 15, 2010 Hearing Transcript Exhibit 7 - Expert Report of Deana S. Benishay, Ph.D. Exhibit 8 - "Budget Protest at Quinn's Door," Chicago Tribune, July 11,2010 Exhibit 9 - Ligas v. Maram, No. 05-C-4331, Memorandum and Opinion (April 7, 2010)

Case 1:05-cv-04673 Document 303 Filed 08/17/10 Page 3 of 29
TABLE OF AUTHORITIES
Alliance to End Repression v. Rochford, 565 F.2d975, 977 (7th Cir.1977) .............................. 13 Colbert v. Quinn; No. 07-C-4737 (1. Letkow) ...................................................................... ~ ........ 8 Ligas v. Maram, No. 05-C-4331 (1. Holderman) (July 7, 2009) ................................................. 23 Mirfasihi v. Fleet Mortg. Corp., 450 F.3d 745, 748 (7th Cir. 2006)............................................... 3 Olmstead v. L.C., 527 U.S. 581 (1999) .................................................................................. "20-22 Olmstead v. United States, 277 U.S. 438, 478 (1928) ................................................................. 17
)
In re Prudential Ins. Co., 278 F.3d 175, 202 (3d. Cir. 2002) ......................................................... 3
Other Authorities American with Disabilities Act of 1990,42 U.S.C. § 12132....................................................... 20 Manual for Complex Litigation §§ 21.631, 21.643 (4th ed. 2004) ................................................ 3 Newberg on Class Actions § 15.37 (4th ed. 2002) ......................................................................... 3

Case 1:05-cv-04673 Document 303 Filed 08/17/10 Page 4 of 29

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

Ethel Williams, et aI., Plaintiffs,
vs. Patrick Quinn, et aI.,
Defendants.

) ) ) No. 05 C 4673 ) ) Judge Hart ) ) ) )

MEMORANDUM IN SUPPORT OF OBJECTIONS TO PROPOSED CONSENT DECREE BY ABSENT CLASS MEMBERS AND FAMILY MEMBERS
The undersigned class and family members (the "Objectors,,)l file this Memorandum in . Support o/Objections to Proposed Consent Decree and respectfully state as follows:
I. INTRODUCTION To be clear at the outset, Objectors' do not object to the spirit of the Modified Proposed Consent Decree (the "Decree"). In short, expanding choice is laudable and is something Objectors support. More to the point, Objectors - like the parties - want a final settlement entered. However, as detailed below, the Decree, as currently constituted, has numerous, specific problems that - unless remedied - may leave the Objector~ and other IMD residents vulnerable. Before the Court approves a settlement that all agree will affect the lives of thousands of severely disabled, mentally ill individuals, the Decree's deficiencies should be addressed and corrected now. In short, to insure their protection, Objectors simply want to make the Decree better.

1 The Objectors consist of 22 residents (either individually or through their legal guardian) and separately 9 family members who, although not the legal guardian of the IMD resident, are intimately involved in their loved one's care. Although some Objectors mailed their objections directly to class counsel, attached as Exhibit 1 are the heartfelt, written objections of 11 Objectors.

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Specifically, the Decree has the following deficiencies, many of which can be remedied

by adding specific language to ,the Decree:

~ 1. Details Lacking: The Decree lacks details. The Implementation Plan - or at least portions of it - should be presented now, so all can intelligently review the proposed settlement.

~ 2. Implementation Plan Should Allow for Comment and Require Court Approval:

In essence, the real settlement - meaning the details - will not be provided until the

Implementation Plan is developed, which only comes nine months later. Yet, neither the

class nor the Court gets to review or approve the eventual Implementation Plan. When

developed, the class should have the opportunity to review it and object to it, and the

Court should have ultimate approval of it.

.

~ 3. Evaluation Process: Instead of an "opt-out" process for evaluations, there should be an "opt-in" process~ That is, unless a resident - or his or her legal guardian affirmatively requests an evaluation, then he or she should not be subject to an expensive, unnecessary, and potentially coercive evaluation.

~ 4. Doctors, IMD Staff, Guardians, and Family Should be Consulted: For those residents who opt-in and are evaluated, the Decree should mandate that the evaluator consult with the resident's existing medical team, meaning his or her doctor(s), the IMD staff, any legal guardians, and if authorized, any family members involved with the resident's care.

~ 5. The Evaluator Should be Independent: The evaluator - called the "Qualified Professional" under the Decree - should be independent, meaning he or she should have no ties to either an IMD or to a "Community Service Provider."

~ 6.. Right to Return to IMD: The Decree should expressly provide that residents who

leave their IMD may return to their IMD (or another IMD). Doing so will incentivize

residents to try community options.

~

~ 7. IMD Residents Should also be Offered Services: For those residents who remain in an IMD, they too should be offered "Community-Based Services." That is, the panoply of benefits offered in the Decree should not be limited only to those residents who choose to leave their IMD.

~ 8. Funding for IMDs: If, as the parties state, no resident will be forced to leave an IMD and IMDs will remain a viable option as part of a full continuum of care, then the Decree should provide that the Defendants, consistent with their prior practices, will budget for, and seek sufficient funding for, those residents who remain in an IMD.

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II. FINAL APPROVAL STANDARD
Rule 23(e) requires judicial review and approval of any settlement. Rule 23(e)(2)
expressly requires that a court find any settlement "fair, reasonable, and adequate" before
approving it. This standard is rigorous, as the Seventh Circuit has summarized:
It is well-settled that district judges presiding over proposed class settlements are "expected to give careful scrutiny to the terms of proposed settlements in order to make sure that class counsel are behaving as honest fiduciaries for the class as a whole" because "class actions are rife with potential conflicts of interest between class counsel and class members." Mirfasihi, 356 F.3d at 785 (collecting and citing cases). District judges must therefore "exercise the highest degree of vigilance in scrutinizing proposed settlements of class actions" to consider whether the settlement is "fair, adequate, and reasonable, and not a product of .collusion." Reynolds v. Beneficial Nat'l Bank, 288 F)d 277, 279 (7th Cir.2002). Indeed, the district court judge functions as "a fiduciary of the class, who is subject therefore to the high duty of care that the law requires of fiduciaries." Id at280. Mirfasihi v. Fleet Mortg. Corp., 450 F.3d 745, 748 (7th Cir. 2006). Moreover, "Courisel for the
class and the other settling parties bear the burden of persuasion that the proposed settlement is fair, reasonable, and adequate." Manual for Complex Litigation § 21.631 (4th ed. 2004) (the
"Manual").
As for the Objectors' role in the process:
Objectors can play a useful role in the court's evaluation of the proposed settlement terms.... Objectors can provide important information regarding the fairness, adequacy, and reasonableness of settlements. Objectors can also playa beneficial role in opening a proposed settlement to scrutiny and identifying areas that need improvement.
Id. at § 21.643. See In re Prudential Ins. Co., 278 F.3d 175, 202 (3d Cir. 2002) (J. Rosen
dissenting) ("[A]s the distinguished historian, Allan Nevins, wrote many years ago, from
the conflict of ideas comes crystallization of thought. Objections serve a highly useful
vehicle for the members of the class and the public generally."); 5 Alba Conte & Herbert
Newberg, Newberg on Class Actions § 15.37 (4th ed. 2002) ("Valid objections can serve a
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Case 1:05-cv-04673 Document 303 Filed 08/17/10 Page 7 of 29
vital role in protecting the interests of absentees in a class settlement by raising issues that may have been overlooked or disregarded by class counseL").
III. BACKGROUND All agree that the Decree will affect not only the lives of over 4,300 mentally ill residents living in an Institution for Mental Disease ("IMD"), but also their families and surrounding communities. The Objectors consist of residents (or family members) who, at least currently, want to remain in their IMD, or believe it medically best to do so. Naturally, each of the 4,300 class members is a unique individual with unique needs. To provide some perspective at the outset, here are the brief stories of three particular Objectors: Danny McLean Danny McLean IS 25 and lives at Clayton Home in Chicago's Lincoln Park neighborhood. He has previously tried living independently in an apartment in the "community," and as his mother (an administrative law judge) notes, he almost died as a result. In the IMD, he is fully functioning, and he is an active citizen of the City of Chicago. He has a bus pass and a cell phone and in some respects, he leads a life that parallels a "normal" 25 yearold. He volunteers at a pet shelter (PAWS), marches in protest marches, and goes to the opera and concerts at Millennium Park. He has friends and he goes to parties. Some people who live· with him in Clayton House have jobs (Clayton sends them off with sack lunches each day). Some others finish college while at Clayton, something Danny hopes to do as well. As Danny's mother explains, he would not be able to do any of these things but for the fact that Clayton monitors his health, dispenses his medications, and provides him meals and housekeeping and laundry services. All of that keeps him from reverting to the symptoms associated with severe mental illness, she explains.
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Lisa Swan Lisa Swan is 51 and has lived at Abbott House in Highland Park for eight years. Before moving to Abbott House, Lisa lived in the "community" - a house in Deerfield - where she unfortunately failed miserably, eventually ending up in a hospital psychiatric ward. Lisa has a court-appointed guardian - Joseph Vogler - who previously served as the Lake County Public Administrator and Guardian for 24 years. Vogler, who also acts as guardian for two other residents at Abbott"House, notes that Lisa has thrived since arriving at Abbott House, and reports that some of Lisa's family members credit Abbott House with saving her life. Vogler reports that Lisa's improvement at Abbott House has been remarkable and that Lisa considers it her "home" and enjoys living there. Regarding the settlement generally, Vogler writes: During [my] years of service as a court ordered guardian I have cared for thousands of disabled people some of whom suffer from mental illness. As guardian for these people it has been my responsibility to assure that the housing received by the disabled is appropriate, suitable, and least restrictive choice to meet their needs. One is an IMD facility such as Abbott House in Highland Park, Illinois. In my opinion this is a superior choice for people who need programming, supervision, and structure. My wards who have lived in this type of home highly benefit from the strong sense of family and continuity of care. They are able to make friends and enjoy a sense of community. This stable environment has proven to keep my wards safe from alCohol, financial exploitation, and unnecessary hospitalizations. IMD's should continue to be a viable choice for people who need this environment. It would be a grave disservice to strike this working option for a plan that is not clearly defined. Therefore I am objecting to the proposed settlement because it may jeopardize the future state funding for IMD's. Exhibit 1. (Vogler Objection).
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David Twomey
David Twomey is 56 and lives at Margaret Manor North in Chicago's Buena Park
neighborhood. He has lived in an IMD for about 15 years. Prior to that he lived with family
members. As David's brother Phil explains:
My brother, and many like him, have long periods where they are not rational. The same misfired neurons in the brain that are the basis of the illness, also cause misfired thoughts. A question asked at 1 pm will get a different answer at 3 pm and again at 5 pm. And he could be easily led by the questioner to provide an answer that he thinks is desired, and two hours later claim he never said that and that the original question was different. A real life common example, if you ask David "how are you," he will get quite angry that you told him to go to hell with Howard Hughes. Even so, he walks in the neighborhood and goes to the Jewel or McDonald's. He has visitors. He goes to another IMD to visit friends. He has a room and a place to put his belongings and a place to eat. He even takes the bus and audits high level math courses at Loyola University. In short, he has a life, which is much different from being locked up in Chicago-Read Hospital, where he has been many times before stabilizing at Margaret Manor North. Asking him whether he "does not oppose moving to a community based setting" is ludicrous and horribly unaware of the reality of a severe mental illness.
Though Danny, Lisa, and David are quite different, they share at least one thing: their
respective IMDs provide them the care and services they need. Though each hopes to perhaps
one day live even more independently, for at least the time being, their IMDs serve them best, as
the IMD provides them necessary structure, support, and staff, including help with their daily
medications.
IV. THE IMDs in CONTEXT
Approximately 4,300 severely mentally ill individuals live in one of Illinois' 25 IMDs,
most of which are located in Chicago and its surrounding suburbs. The IMDs range in size from
60 residents to over 400 residents.
As explained by Christopher Fichtner, M.D. - the former director of the Illinois Division
of Mental Health, one of the agency Defendants in this case - IMDs are "one component of a
continuum of mental healthcare services." Fichtner Report at 5 (attached hereto as Exhibit 2).
Mitchell Glaser, M.D. - who is chairman of the largest psychiatry department in Chicago - is -6-

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even more forceful, stating that "IMDs are an important option that need to be maintained for psychiatric patients in the state of Illinois." Glaser Report at 3 (attached hereto as Exhibit 3).
Viewed in this light, IMDs serve as a bridge between two extremes for the mentally ill: a locked psychiatric ward on the one hand and complete independence in an apartment on the other.2 As such, Illinois' IMD system is but a necessary part of a continuum of care. Obviously for many people, including Danny, Lisa, and David, a middle ground is needed.
The IMDs consist only of residents who are mentally ill, although many also have physical problems for which the IMDs also provide care. But, the 4,300 IMD residents represent just a fraction of the number of severely mentally ill people who live in nursing homes in Illinois. Plaintiffs' own experts acknowledge that well over 10,000 other mentally ill individuals in Illinois live outside IMDs in "traditional" nursing homes, meaning nursing homes comprised mostly of elderly individuals who do not have mental illness. D. Jones Report at 8.3 The State's expert similarly states there are more than 12,000 mentally ill residents living in non-IMD nursing homes, while others estimate the number may be closer to 20,000. R. Gregory Kipper
2 Or, even worse, for some the only other options would be homelessness, prison, or perhaps death. See Fichtner Report at 6 ("IMDs might represent the only highly structur~d option at the user-friendly end· of a continuum defined increasingly by jails at the other end with state hospitals somewhere in between."). 3 The parties have provided Objectors copies of their experts' reports. As the parties have, or will likely, file their expert reports with the Court, objectors do not also file them here. To . summarize, Plaintiffs retained three experts, and Defendants retained two experts, all of whom produced written reports.
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Report at 17. Whatever the actual number, it is clear that many more mentally ill individuals
now live in "traditional" nursing homes than they do IMDs.4
The reason for this· is simple: money. Specifically, so long as less than 50% of a
traditional nursing home's residents are mentally ill, then the residents - both the mentally ill
ones and the non-mentally ill ones at such nursing homes - receive the "federal match," meaning
the federal government pays for more than 50% of those residents' bills. In contrast, with IMDs,
because 100% of their residents are mentally ill, the state "bears all of the costs for treatment and
care of most individuals with mental illness who reside in IMDs," as Plaintiffs' expert states. D.
.Jones Report at 7. This is called the "IMD exclusion" - meaning there is no federal match of
funds - because "the state pays 100% of the costs of their care." Id. at 8.5
4 In fact, a parallel class action case is now pending in this Court - Colbert v. Quinn, No. 07-C4737 (1. Lefkow) - which was brought on behalf of disabled individuals in Illinois who live in these "traditional" nursing homes, many of whom are severely mentally ill. Everyone seems to agree that most severely mentally ill individuals should not reside in "traditional" nursing homes, ·meaning nursing homes where most of the population is elderly and is not mentally ill (e.g., your elderly grandmother). However, if the mentally ill class members in Colbert were to leave their traditional nursing homes, common sense and experience instruct that a significant portion would likely need the care, structure, and supervision of an IMD, the closest equivalent to the care they are now receiving. Presumably, at least some of these individuals are not good candidates for independent living for whom an IMD would then seem the best, logical choice. Thus, if the mentally ill residents in the Colbert class and the Williams class members were dealt with together as an integrated whole - as wise policy would dictate - then there would likely be a need for more IMD beds, notless, to account for the more than 10,000 mentally ill individuals . now living in traditional nursing homes.
5 For sake of discussion, Objectors accept Plaintiffs' expert's description of the "IMD exclusion," although it is not correct. Specifically, almost all IMD residents receive SSI checks (Medicaid or Medicare) from the federal government, which average approximately $700 per month, which are paid to the IMD to cover a portion of the cost of the resident's care. The state in turn pays the remainder of the cost for the resident's care. For example, if the state budgets $3000 per month for each resident, and the resident receives $700 per month in SSI from the federal government, then the state pays the IMD the remainder, meaning $2300. In contrast, for those mentally ill individuals who live in a "traditional" nursing home that is eligible for the "federal match," after deducting the SSI portion, the $2300 balance is split between the federal government (62%) and the state (38%). The current federal match of 62% is set to expire at the end of 2010, at which time it is anticipated that it will revert to the "old" match of approximately 50%.
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All acknowledge that the state has a huge financial interest in moving residents from IMDs to either the community or to traditional nursing homes. By doing so, the state currently saves roughly 62%, as that is the current amount of the federal match. To ignore that the state has a financial interest in closing IMDs is to ignore reality.
Some leading psychiatric groups, however, have criticized the "IMD exclusion." These groups note that IMDs are an integral part of providing the full continuum of care for severely mentally ill individuals. For instance, in a recent article published by the American Psychiatric Association, it was noted that "repeal of the [IMD] exclusion would provide for greater federal funding of treatment in the community." "Jail More Likely than Hospital for Severely Mentally Ill," Mark Moran, 45 American Psychiatric Association 11 at p.l. Exhibit 4.
Finally, moving from the theoretical to the real, we have the recent example of Somerset. Somerset was a large IMD that closed in March 2010 when its license was revoked. By all accounts - including state reports and the popular press - Somerset was substandard. It was also large, with more than 400 residents. However, after Somerset's residents were assessed by the State, only 10% of them were recommended for placement in smaller, community settings like those now sought in the Decree. And tellingly, even for the small minority of residents that were assessed as appropriate for the community (43 in total), "some of those 43 opted instead to move to other nursing facilities." Thus, in the end, on account of either need or choice, almost 90% of Somerset's residents were r.elocated to other IMDs. Exhibit 5 ("Deadline set to close Chicago nursing home," Chicago Tribune, March 8, 2010).
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v. THE EXPERTS
The Somerset experience may disprove - or at least should make all question - Plaintiffs' experts' conclusion that 85% (or more) of the class is appropriate to live in the community. See Yale Report at 23 (concluding that "[a]bout 85-90% of residents demonstrated a capacity for independent functioning that would enable them to live in the community,,).6 With Somerset, however, the exact opposite proved true: namely, almost 90% of the residents stayed in an IMD, either by choice or by medical necessity. As Dr. Fichtner states, the Somerset example "may be instructive in estimating the current need in Illinois for more restrictive and structured treatment settings." Fichtner Report, Exhibit 2 at 6.
Perhaps most telling, Dr. FiChtner also cites a study from California, a state "which would likely be considered far ahead of Illinois in terms of its evolution of a community-based mental health system." Id. at 5. As Dr. Fichtner 'notes, even in California, IMDs have not been eliminated. Id. But most telling is what happens to IMD residents when they are transferred to the community: unfortunately, they often fail miserably. As Dr. Fichtner explains in summarizing a scholarly article:
Lamb and Weinberger (2005) followed up on 108 consecutive discharges from a Los Angeles County IMD and were able to obtain follow-up data at one year for 101 of those individuals. Their findings indicated that 56% of those discharged "were not able to demonstrate even minimal 'functioning in the community," and "spent 90 or more days in locked or highly structured institutions that provide 24hour care (including jail) or had five or more acute hospitalizations" The researchers concluded, "The high rate of recidivism shown in this cohort suggests that the current emphasis on transferring patients from more structured, intermediate inpatient services to lower levels of care is not effective for a maj ority of patients."
6 Class counsel is even more optimistic - if not aggressive - in its predictions, stating at hearing that, "Our experts found everybody could be served in the community if they want to." April 15, 2010 hearing transcript at 6 (attached hereto as Exhibit 6).
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Id., citing H. Richard Lamb, M.D. and Linda E. Weinberger, Ph.D., One-Year Follow-Up of Persons Discharged from a Locked Intermediate Care Facility, Psychiatric Services 56:198-201 (Feb. 2005).
Thus, the motivating principle for the entire case and now the Decree - that the Defendants "needlessly warehouse large numbers of people who could be served at the same or less cost to the State in far more integrated settings in their communities" - is questionable. First Amended Complaint at ~ 5 [Dkt. No. 40]. In fact, Plaintiffs' own experts contradict one another on this point. For instance, the Yale team concludes that 85%-90% of residents have the necessary skills to live in the community. Yale Report at 23. Yet, one of Plaintiffs' other retained experts - Dennis Jones - cites actual data from a state pilot program where only 46 of 87 IMD residents "were placed into supportive housing." D. Jones Report at 22. Though Jones does not provide more details in his report, presumably the 87 IMD residents who were "accepted" into the pilot program were prescreened, meaning they were evaluated as good candidates for the community. Yet even then, only 53% of them were ultimately "placed into supportive housing." Moreover, for the 46 residents who were placed in supportive housing, Jones makes no mention of how many of them ultimately succeeded - meaning how many remained - in the community.
Perhaps most important, the cost of failure for those IMD residents placed III the community is quite real and high, as Dr. Glazer explains:
There is significant evidence that patients who need to be in an IMD, but who are not, have increased episodes of acute exacerbation of their illness. This leads to an overall worse condition and will lead to permanent neurologic loss and decreased brain functioning overall. Research has shown that with each acute exacerbation of most serious mental illnesses, atrophy occurs in the brain, meaning nerve cells die, axon and dendrites shrink, and pemianent shrinking of the brain occurs. This leads to permanent disability and an overall decreased ability to live on their own in the future. This leads to worse hygiene, nutrition and mental health. This will then lead to more inpatient hospitalizations, longer length of stays and cognitive decline.
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Glazer, Exhibit 3 at 1-2. For this reason, and given the absence of any details on how the Decree .will be implemented, Dr. Glaser concludes that "[t]his will lead to a great experiment." Id. at 2.
The report of Plaintiffs' lead expert· - the Yale team - also has numerous methodology flaws, putting into question its utility. Specifically, as Deana Benishay, Ph.D, explains in her detailed report, "[t]he study's claim of scientific rigor is belied by issues in sample selection, reliability and validity measures, and its conclusions based on possibly fallacious comparisons." Benishay Report at 4 (attached hereto as Exhibit 7). Dr. Glaser likewise notes that Plaintiffs' expert team's findings "are misleading.and have inaccurate, unsound conclusions, lacking strong evidence to support those conclusions." Exhibit 3 at 2.
As the saying goes, "a faulty premise begets a faulty conclusion," and so it goes here with Plaintiffs' expert reports. As the parties' expert reports are flawed, the Decree must in tum be questioned since it is premised on the conclusions drawn in their reports. More important, the reports of Objectors' experts reveal a simple truth: IMDs remain a necessary part of a continuum of care, and if the main priority is the IMD residents' welfare, then the IMDs must be maintained and supported by the State.
VI. DISCUSSION Objectors raise two objections to the Decree: (1) the class definition is flawed, and (2) the Decree suffers from specific deficiencies: To be clear, in raising these concerns, Objectors do not seek wholesale rejection of the Decree. Instead, Objectors merely seek to improve the Decree for all class members. A. The Class Definition As a threshold matter, the class definition is problematic. Specifically, the third prong of the definition defines the class as those IMD residents with Mental Illness who, "with appropriate supports and services may be able to live in an integrated community setting."
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Decree at § III. Such language, however, makes the class definition effectively conditional and subjective, which is impermissible. Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977) (holding that class definitions must be' definite enough so that the class can be readily ascertained). Instead, as a general matter, a class is to be objectively defined, such that there is no question as to who is a member of the class and who is not a member of the class.
Here, however, one does not know whether he or she is a member of the class unless and until he or she is first evaluated to determine whether "with appropriate supports and services [he/she] may be able to live in an integrated community setting." Viewed in this light, currently there are no class members, but instead only 4,300 potential class members, depending on the outcome of their future evaluations. Having to first evaluate residents for class eligibility runs afoul of the general precept that identifying class members should be an objective, nonconditional exercise.
There is a simple fix to this problem: the last prong of the class definition should be deleted and the class instead simply defined as "adults in Illinois who: (a) have a Mental Illness; and (b) are institutionalized in a privately owned Institutions for Mental Diseases." Doing so would clearly and objectively make all IMD residents class members, which appears to be the parties' intention.7
B. Specific Objections to the Decree To reemphasize, the Decree is not fatally flawed, and Objectors do not seek its blanket rejection. Instead, Objectors seek to make it better as follows:
7 At the Court's suggestion, on May 14, 2010, Objectors met with the parties to discuss Objectors' concerns, which meeting lasted approximately three hours. Before the meeting, Objectors presented the parties with precise comments, including a red-line of some suggested changes to the Decree. The class definition issue - and Objectors' proposed fix to it - was one of the comments Objectors provided. The parties listened to Objectors' concerns, but did not commit to making any changes to the Decree, and thereafter they never responded to the suggested changes or comments made by Objectors.
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1. Details Lacking: Implementation Plan should be Presented Now The Decree lacks details. At bottom, it constitutes more a concept than it does a plan or a detailed settlement. Paul Magit, a father of an IMD resident, attended a recent meeting at his daughter's IMD where class counsel discussed the Decree. As Magit explains: "There were many representations made by these gentlemen except any specifics on how this proposed settlement was to be accomplished and how it would be paid for." Exhibit 1 (Magit Objection at 2). Just as a resident cannot make an intelligent choice on moving until he or she is presented with details, so too does the Decree's absence of detail handicap the Court's ability to review and approve the Decree. As. such, the parties should present the Implementation Plan - or at least portions of it - now, so all can intelligently review the proposed settlement. As Magit writes in his objection: "These are mentally disabled people. The details and guarantees must be spelled out before any life decision is made for them." Id. (Magit Objection at 2). In response, the parties apparently argue that details are not necessary because if the case went to trial, any judgment entered by the Court would likely be limited or minimalist, containing no· more details that the Decree now does. This argument is flawed, however, because this case has not been tried, but instead is attempting to be settled. As such, if the parties are cooperatively seeking to resolve the dispute, no reason exists why they cannot provide the Implementation Plan - or at least more details - now. Second, and more fundamental, even in those instances where a court enters a skeletal judgment, the court thereafter maintains jurisdiction and requires the defendant to draft a plan, which the court must also thereafter approve. Here, however, the parties have designed a system that divests the class and the Court of this critical role, leaving the eventual Implementation Plan to the parties' exclusive control.
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Recommendation: The parties should develop the Implementation Plan now, or if not, they should, at a minimum, provide more details on how the plan and process will actually work. ~ 2. Implementation Plan should Allow for Comment and Require Court Approval
If the parties are not required to provide details now - and can instead wait nine months to do so - then when they do later formulate the Implementation Plan, it should be subject to class-wide review and ultimate Court approval. As Objector Dan Goldstein writes:
The words "Implementation Plan" were used 35 times in the settlement documents, but it is clear that both sides want to get approval on the settlement and then send off people to work on this plan with no guidrui.ce from the court. The whole settlement rests on how the implementation plan is created and executed, but this is left to unknown people, with unknown motives, for an unknown period of time. Exhibit 1 (Goldstein Objection at 2). As the Implementation Plan will, as a practical matter, constitute the real settlement, the class should have the opportunity to review it and object to it, and the Court should have ultimate approval of it. Recommendation: Just as it gets to review and object to the Decree, the Class should be allowed to review and object to the Implementation Plan, and the Court should have ultimate approval over it. ~ 3. Evaluation Process Should be a Clearly Defined "Opt-In" Process However well intended, the proposed evaluation process is confusing, if not internally inconsistent. First, the Decree states that within two years, "every Class Member will receive an independent, professionally appropriate and person-centered Evaluation of his or her preferences strengths and needs in order to determine the Community-Based Services required for him or her to live in PSH or another appropriate Community-Based Setting." Decree at ~ 6(a). The Decree then provides, however, that "[a]ny Class Member has the right to decline to take part in such Evaluation." Id. Yet later, in the context of developing service plans for residents, it uses still different language: "[f]or each Class Member who does not oppose moving to a Community-
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Based Setting," a service plan shall include certain specified items. Id. at ~ 7. Dr. Fichtner notes that such language "might suggest an element of coercion." Exhibit 2 at 3. As Objector Dan
Goldstein explains:
I am afraid for my mother, who would not in her current state know the gravity of her decision if some independent person walked in and simply asked, "Would you like to move out of Abbott House someday?" Certainly the answer from my mother would be "Of course I would love to move out of Abbott House someday." But those words could set in motion a plan to shovel her out of Abbott House into the community without being prepared.
Exhibit 1 (Goldstein Objection at 2-3).
Even class counsels' own statements reflect some confusion as to how the evaluation
process will work: "all we're asking for is evaluations and proposals to move people when appropriate," Exhibit 6 at 7. Such statements reinforce the inherent circularity problem with the
class definition: namely, no one can determine who is a member of the class until the state evaluates IMD residents as appropriate for the community, which in tum (necessarily) first requires an evaluation of each resident.
Despite these issues, Objectors are encouraged - and take at face value - the parties' repeated statements that any evaluation process will be wholly volunt~y, with no resident forced or coerced into being evaluated. To make this concept a reality, however, the evaluation process
should be an opt-in, not an opt-out, process. Specifically, unless and until a resident - or his or
her legal guardian - affirmatively requests an evaluation, then he or she should not be subject to an expensive, unnecessary, and potentially coercive evaluation.8
As this case is premised on the concept of choice, then real choice should be respected.
Here that means only those residents (or their guardians) who state a clear desire to be evaluated
8 Another of Plaintiffs' experts - Elizabeth Jones - notes in her report that 62 of the 105 residents she interviewed - 59% - are wards of the state. E. Jones Report at 3. Some other residents may have private guardians. As such, any evaluation process must respect and include· these guardians, including making the threshold decision whether a resident is evaluated. That is, the guardians should be consulted as part of the original opt-in decision to be evaluated.
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should be evaluated. As Justice Brandeis once said in another Olmstead case, "the right to be let alone [is] the most comprehensive of rights and the right most valued by civilized men." Olmstead v. United States, 277 U.S. 438, 478 (1928) (dissent). And so it goes here too: medically fragile residents should only be evaluated if they clearly choose to be so evaluated.
Recommendation: Residents (or their guardians) should opt-in to evaluations, with the default rule being that residents are not to be evaluated.
~ 4. Doctors, IMD Staff, Guardians, and Family should be Consulted Equally important, for those residents who opt-in and are evaluated, the Decree should
mandate that the evaluator consult with the resident's existing medical team, meaning his or her doctor(s), the IMD staff, any legal guardians, and if authorized, any family members involved with the resident's care. In this regard, Dr. Fitchner recommends that "in all cases requirements for involvement of physicians, treatment staff, and family members in the evaluation process may need to be strengthened." Exhibit 2 at 7. Likewise, Dr. Glaser states: "The ultimate decision to discharge should be a medical one." Exhibit 3 at 3.
However, as now structured, the Decree provides that such consultations by the evaluator are discretionary and shall only occur "where appropriate," an amorphous standard ripe for abuse. Decree at ~ 4(viii). Simply stated, such consultations should be mandatory. Otherwise, the evaluator, who will have never met the resident before and who will, at most, be looking at a cold medical record, will have authority to make life-altering medical decisions without consulting with medical professionals. As Objector Dan Goldstein states: "To not mandate that the independent analyst overseeing this project must include a consensus from doctors and psychiatrists at the least is highly concerning.... Doctors that have worked with [my mother] for years, family members that talk to her daily, and support staff should all be mandated to be involved in the decision process;" Exhibit 1 (Goldstein Objection at 2-3).
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Although the parties may argue that such flexibility is necessary to avoid the rare instance of having to consult with a resident's doctor who has proven deficient, such exceptions should not dictate the evaluation process generally. At a minimum, the evaluator should have to document - if not get approval from the monitor - when the evaluator chooses not to consult with medical professionals.
As for the IMD staff, there would seem no good reason for the evaluator not to consult with the IMD staff and the residents' case managers, many of whom have worked with the residents for years. Likewise, unless the resident withholds consent, consulting with those who may know the resident best - the resident's family - should also be mandatory. There would seem no good principled reason not to make such consultations mandatory.
Recommendation: If a resident is evaluated, it should be mandatory for the evaluator to consult with the resident's doctors, IMD staff, guardians, and authorized family members.
);> 5. Evaluator should be Neutral and Well-Credentialed Naturally, any system is only as good as those implementing it. Here, the Decree vests
complete and total authority in one person: the evaluator. The evaluator is called the "Qualified Professional" in the Decree, who is vaguely defined as "persons who are appropriately licensed, .credentialed, trained and employed by a PASRR Agency." Decree at, 4(xx).
This poses at least tWo problems. First, the Qualified Professional may not be neutral. Instead, he or she may be employed by, or affiliated with, a community provider, meaning an organization that itself provides Permanent Supportive Housing or Community-Based Settings. Just as all would agree that it would be inappropriate if the Qualified Professional was affiliated with an IMD, so too it is inappropriate if he or she is affiliated with a community provider.
Likewise, the Decree provides no details on the Qualified Professional's qualifications, other than to say he or she must be "credentialed." Given the stakes, and given that the detentlination whether someone is appropriate for the community is ultimately a medical
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decision, the Qualified Professional should ideally be a board-certified psychiatrist, or someone with similar experience and qualifications.
Recommendation: The evaluator should be independent of both IMDs and community providers that might benefit from the Decree, and the evaluator should be a board-certified psychiatrist.
~ 6. All Residents should have the Right to Return to an IMD The Decree fails to provide that residents who leave their IMD may return to their IMD
(or another IMD). If residents are to make the choice to move to the community with confidence, then there is no principled reason to limit their ability to later return to an IMD. Doing so should actually incentivize residents to try community options. Additionally, residents who do leave their IMDs for the community should be regularly evaluated thereafter to insure that their placement remains appropriate. If it is not deemed appropriate, the evaluator should have the right - if not the duty - to recommend that the resident return to an IMD.
Recommendation: The Decree should include language stating that residents have the ability to return to an IMD at any time, and that the state shall honor such request so long as it continues to fund IMD services generally.
~ 7. IMD Residents should also be Offered Services As now structured, the Decree is essentially an all or nothing proposition. That is, for
those residents who leave their IMDs for the community, they will be provided a panoply ofne~ (yet still-to-be determined) services.9 But as Dr. Fichtner explains, there is no principled reason why those residents who remain in their IMDs - either by choice or because they are not deemed medically appropriate for the community - should not also be offered the New Services:
9 As the services and options will only be detailed in the eventual Implementation Plan, it is unclear just what the services and options will ultimately be. However, for purposes of this section, Objectors accept that those residents who leave their IMDs will be provided additional services ("New Services").
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Such individuals should not be denied the opportunity to access an array of rehabilitative services - within the IMD or offsite and "community-based" as appropriate - simply because they choose to remain in a congregate living arrangement. Exhibit 2 at 4. If the Decree - or more accurately, the Implementation Plan - is to provide New Services, such beneficial services should be provided to all residents, irrespective of whether they choose or must remain in their IMDs. Conditioning receipt of the New Services on leaving the IMD will only further marginalize the very IMD residents who the parties claim to want to protect. Insofar as the parties assert that IMDs are substandard, creating a two class system for receipt of the New Services - the "haves" and the "have not's" - will only exacerbate the problem. Recommendation: Whatever ancillary services the Implementation Decree offers, such
,-
services should be offered to all residents; not just those who depart their IMDs.
» 8. State should continue to Fund IMDs consistent with Existing Practice
As the parties have noted from the outset, this case is premised on Olmstead v. L.C., 527 u.S. 581 (1999), the Supreme Court case that interpreted the Americans with Disabilities Act of 1990,42 U.S.C.§ 12132. The Olmstead plurality opinion held that:
States are required to provide community-based treatment for persons with mental disabilities when the State's treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. Id. at 607. Thus, broken down, there are three relevant components to consider when the State seeks to provide services or new living arrangements for the mentally ill:
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~ (1) The Medical Question: The State's treatment professionals must determine that such

"placement is appropriate";

.

~ (2) The Choice Question: The affected persons - meaning the residents (or their guardians) here - must not oppose the proposed placement or service; and

~ (3) The Money Question: The placement (or services to be offered) "can be reasonably accommodated,taking into account the resources available to the State and the needs of others with mental disabilities."
Id. (emphasis added)

As Objectors have already addressed the medical and choice questions, Objectors end by

addressing the third component, the money (or resource) question. In short, Objectors fear that

implementation of the Decree may affect the State's funding for IMDs. More to the point, they

fear that the State will decrease funding for their IMDs, or perhaps cut it altogether. The Court

need merely read the newspaper to know that Illinois' on-going budget crisis threatens all mental

health services, with cuts already proposed by the governor. See,~, Exhibit .8 ("Budget

Protest at Quinn's Door," Chicago Tribune, July 11~ 2010, Sec. 1, p. 17). Plus, as the State's

own financial expert concluded, "[t]he total impact (State and Federal) [of implementing the

Decree] is over $170 million." Kipper Report at 10.

In fact, for five years, the State itself has argued and defended this case by asserting that

the changes Plaintiffs seeks would run afoul of the third prong of Olmstead, the money question.

Specifically, as regards the third prong, the State asserted two affirmative defenses - called the

fundamental alteration defense - as follows:

AFFIRMATIVE DEFENSES

1. The relief plaintiffs seek would be inequitable in that it would require Defendants to fundamentally alter the nature of the services and programs they are legally obligated to provide and do provide to persons with mental illness.

2. The relief plaintiffs seek would be inequitable given Illinois' available resources and given Defendants' responsibility for the care and treatment of a large and diverse population of persons with mental illness.

Defendants' Answer to Plaintiffs' First Amended Complaint at 32 [Dkt. No. 48]. - 21 -

Case 1:05-cv-04673 Document 303 Filed 08/17/10 Page 25 of 29
Thus, the State acknowledges that it has a duty not to fundamentally alter the care it provides all its mentally ill residents, including (of course) those .residents who want or need to remain in an IMD. For these residents, the least restrictive environment is an IMD.
As Objector· Dan Goldstein states: "These facilities aren't a privilege, they are a necessity." Exhibit 1 (Goldstein Objection at 2.). Likewise, Objector Ursula Levy - who is also a former psychiatric nurse - explains in loving detail in her objection that only at an IMD has her daughter "been able to experience, for the first time since the onset of her illness in 1982, a measure of stability, security, freedom, and enjoyment of life's simple pleasures." Exhibit 1 (Levy Objection at 2). And, as Father Julian von Duerbeck from Saint Procopius Abbey in Lisle bluntly writes about his brother: "My brother could not survive without Clayton's care and atmosphere." Id. (Father von Duerbeck Objection at 2).
If the parties respond by claiming that IMD services are not an "entitlement" - thereby essentially chiding that the State can do as it pleases with its IMD residents - then they not only espouse a callous disregard for the very residents they seek to protect, but they also miss the point. As the Olmstead court provided: "States must adhere to the ADA's non-discrimination requirement with regard to the services they in fact provide." Olmstead, 527 U.S. at 603 n.14. Here there is no doubt that - whether "entitled" or not - the State has indeed provided IMD services for years.
As such, the State must continue to do so since "the ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk." Id. at 604. Likewise, "[e]ven if States eventually were able to close some institutions in response to an increase in the number of community placements, the States would still incur the cost of running partially full institutions in the interim." Id. at 604, n.15 (citing Brief for United States as Amicus Curiae). The State's lawyer here recently acknowledged this very point at hearing:
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Case 1:05-cv-04673 Document 303 Filed 08/17/10 Page 26 of 29
I think as we gear up this process, I think it's recognized by everyone that in a sense, we will be running a double system for a while. You're still going to have the same overhead costs in the nursing homes and - while you transition people out. Exhibit 6 at 4. Thus, jf the State already acknowledges it has a duty to continue funding IMDs for those residents who choose or need to remain in an !MD, there is no reason not to expressly provide as such in the Decree. Failing to do so only invites skepticism. The parties (and Court) should seek to protect the rights of those IMD residents who remain in their IMDs as much as they protect the rights of those residents who depart their IMDs for the community. In a similar context, this Court rejected a proposed settlement and went further decertifying the class after four years - after·it received thousands of written objections at the fairness hearing. Ligas v. Maram, No. 05-C-4331 (J. Holderman) (July 7, 2009) [Dkt. No. 420] ("And based on the objections raised at the fairness hearing, it appears that sufficient commonality does not exist among the highly specialized needs and desires of the class niembers and their legal guardians."). Just recently, when the parties tried to recertify the case, the Court again rejected their proposed settlement while allowing a group of objectors who wanted to remain in their "institutions" to intervene. Analyzing the third prong of Olmstead and how it may affect those residents who want or need to. remain in their existing facilities, Judge Holderman held: a settlement that does not consider the needs of the Proposed Intervenors-or a settlement promising relief to the Named Plaintiffs that the State admittedly cannot deliver-would run contrary to the rationale set forth in Olmstead Id. at [Dkt. No. 479, at *5-6] (April 7, 2010) (attached hereto as Exhibit 9). Here, the parties have stressed over recent months that nothing in the Decree forces any IMD resident to move or mandates the closure of any IMD. That is good, but to insure that such statements are more than hollow words, the parties - and the Decree - should back it up.
- 23 -

Case 1:05-cv-04673 Document 303 Filed 08/17/10 Page 27 of 29
Specifically, the parties should add language to the Decree providing that the State (and its relevant agencies) will continue to budget· for, request, allocate, and appropriate sufficient funds to accommodate those residents who choose or need to remain in an IMD. Only then will those residents' choice (or need) to remain in an IMD actually be honored as the parties state they seek to do.
Recommendation: Add language to the decree providing that the State (and its relevant agencies) will continue to budget for, request, allocate, and appropriate sufficient funds to accommodate those residents who choose or need to remain in an IMD.
VII. CONCLUSION The overriding major flaw with the case - which necessarily leeches into the Decree - is that the parties frame the case as being mainly a civil rights case, in the process overlooking (or at least minimizing) the medical issues. The medical issues - not the civil rights issues- are the most important issues. Why? Because it is the class members' medical needs that define their daily existence. As such, it is their medical needs that require most attention and scrutiny, yet that is what is lacking most from the Decree: details on providing for medical needs and daily living requirements. All said, Objectors support the parties' intentions and efforts. But intentions and efforts are not enough. Given the stakes here - no less than the lives of 4,300 severely mentally ill individuals, their families, and their surrounding communities - the residents require more than intentions and efforts. As such, unless and until the parties address and correct the deficiencies noted above, the Court should withhold approval of the Decree.
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Case 1:05-cv-04673 Document 303 Filed 08/17/10 Page 28 of 29

Dated: August 10,2010

DANNY MCLEAN, DAVID TWOMEY, THEDA GOLDSTEIN, DARNELL JONES, JACQUELINE LEWIS, DONNA BLAHA, MELISSA LEE MEYERS, MICHELLE ALPER, LEAH WILSON, LOIS YESINOWSKI, JASON SHERRELL, TOM WHITE, DENISE BATTLE, ZENA SWETS, LISA SWAN, JOHN ARADO, IRENE HAFNER, CHRISTOPHER ALLEN, BRIAN BONNER, GREG BRECHQN, HENRY THOMAS COLEMAN, and ILYSE FRIEDMAN, individually and/or through their legal guardians; FATHER JULIAN VON DUERBECK, BARBARA LEVIN, ALEX JENKINS, PETER WILKINS, PAUL MAGIT, HARRY SCHNEIDER, URSULA LEVY, TOM WITHEY and PATRICIA MARTIN, as family members to certain IMD residents.

By:/s/ William Choslovsky One of Their Attorneys

Steven F. Pflaum (ARDC No. 06186028) Tonya G. Newman (ARDC No. 6286958) William Choslovsky (ARDC No. 6224664) Neal, Gerber & Eisenberg LLP Two North LaSalle Street, Suite 1700 Chicago, Illinois 60'602-3801 Telephone: (312) 269-8000 Facsimile: (312) 269-1747 tnewman@ngelaw.com
NGEDOCS: 1727486.3

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Case 1:05-cv-04673 Document 303 Filed 08/17/10 Page 29 of 29
CERTIFICATE OF SERVICE William Choslovsky, an attorney, certifies that on August 17, 2010, he caused the foregoing Memorandum in Support of Objections to Proposed Consent Decree by Absent Class Members and Family Members to be filed electronically with the Clerk of the Court using the CMlECF System, which will send notification of such filing to the parties who appear in this Honorable Court's electronic mailing matrix.
Parties may access this filing through the Court's CM/ECF system. lsi William Choslovsky Steven F. Pflaum (ARDC No. 6186028) Tonya G. Newman (ARDC No. 6286958) William Choslovsky (ARDC No. 6224664) NEAL, GERBER & EISENBERG LLP Two North LaSalle Street - Suite 1700 Chicago, Illinois 60602-3801 (312) 269-8000
NGEDOCS: 1731753.l

 
 Case 1:05-cv-04673 Document 67 Filed 08/18/2006

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

ETHEL WILLIAMS, JAN WRIGHTSELL, DONELL HALL and EDWARD BRANDON, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
ROD BLAGOJEVICH, in his official capacity as Governor of the State of Illinois, CAROL L. ADAMS, in her official capacity as Secretary ofthe Illinois Department of Human Services, LORRIE STONE, in her official capacity as Director of the Division of Mental Health of the Illinois Department of Human Services, ERIC E. WHITAKER, in his official capacity as Director of the Illinois Department of Public Health, and BARRY S. MARAM, in his official capacity as Director of the Illinois Department of Healthcare and Family Services,
Defendants.

) ) ) ) ) ) No. 05 C 4673 ) Judge Hart ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

PLAINTIFFS' REPLY MEMORANDUM IN FURTHER SUPPORT OF MOTION FOR CERTIFICATION OF CLASS

Defendants' opposition to class certification not only fails to address the well-defined

prerequisites of Rule 23(a),1 it also fails to address the core issue under Rule 23(b)(2): whether

Defendants' conduct (i.e., segregating persons with mental illness in institutions for mental

diseases ("IMD"s)) is generally applicable to the proposed class (i.e., persons segregated in those

IMDs). See Fed. R. Civ. P. 23(b)(2). Instead, Defendants attempt to shoehorn improper, merits-

Plaintiffs' opening brief argued that Rule 23(a)'s express prerequisites of numerosity, commonality, typicality and adequacy have been fulfilled. (See PIs.' Mem Supp. Mot. Class Certif. at 2-12). Defendants do not respond to these arguments and any challenges to those arguments are therefore waived. See, e.g., Commodity Futures Trading Comm'n v. Collins, 997 F.2d 1230, 1233 (7th Cir. 1993) (holding argument not mentioned in brief waived).

Case 1:05-cv-04673 Document 67 Filed 08/18/2006

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based arguments into the Rule 23 analysis. Specifically, Defendants engage in extensive nonexpert interpretation of the named Plaintiffs' psychiatric records and putative "analysis" of whether those individuals' psychiatric treatment has been adequate. This purported analysis is not relevant to a determination of whether there are systemic barriers to providing treatment in an integrated setting, and it is inappropriate in determining class certification under Rule 23.
The gravamen of Plaintiffs' First Amended Complaint and Motion for Certification of Class is Defendants' systemic failure to offer adequate services for all class members, defined as persons who (1) have a mental illness; (2) with appropriate supports and service, could live in the community; and (3) are institutionalized in privately owned IMDs. Plaintiffs challenge Defendants' failure (i) to identify IMD residents who could live in more integrated settings; (ii) to ensure that these residents are afforded an opportunity to live in more integrated settings; (iii) to ensure that sufficient community-based services are available to enable these residents to live in more integrating settings; and (iv) to move these residents into more integrated community settings. See Am. Compi. ~~ 27, 83, 90-91, 94-96. This is a paradigmatic case for certification pursuant to Rule 23(b)(2).
ARGUMENT I. CLASS CERTIFICATION IS APPROPRIATE BECAUSE PLAINTIFFS MEET
THE REQUIREMENTS OF RULE 23(A) AND 23(B)(2) Defendants do not contest Plaintiffs' arguments that they meet each of the requirements of Rule 23(b)(2), but instead focus exclusively on the merits of Plaintiffs' claims. Defendants expressly acknowledge that "[i]n determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Defs.' Mem. Supp. Resp. at 3, citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). Indeed, the Seventh Circuit continues to
2

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adhere to Eisen's guiding principle that "nothing in either the language or history of Rule 23 gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action." Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130 UA., 657 F.2d 890, 895 (7th Cir. 1981) (quoting Eisen, 417
u.s. at 177). Defendants, however, urge the Court to disregard this long-standing principle and
to focus on Defendants' lay interpretations of the individual records of the named plaintiffs. Defendants' brief contains over ninety citations to records obtained from the IMDs in which the named Plaintiffs currently reside - all purporting to challenge Plaintiffs' ability to live in the community. 2
To justify this merits-based approach, Defendants rely on General Telephone Co. of Southwest v. Falcon for the general proposition that "it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question." 457 U.S. 147, 160 (1982). Defendants also cite the Seventh Circuit's decision in Szabo for the proposition that a court may make "whatever factual and legal inquiries are necessary" in determining whether the requirements of Rule 23 have been met. Defs.' Mem. at 3, citing Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675-76 (7th Cir. 2001). However, Falcon and Szabo do not permit the type of merits-based inquiry Defendants ask this Court to undertake here. Rather, they permit only a very limited inquiry for the purpose of determining whether the requirements of Rule 23 are met. See, e.g., Szabo, 249 F.3d at 677 (a court must determine class certification before reaching the merits, though Rule 23 allows the court to look "beneath the surface of a complaint to conduct
2 Defendants did not attach exhibits to their brief, thereby making it difficult to accurately identify the records Defendants attempt to analyze. Plaintiffs note that Defendants' brief apparently cites records that post-date the filing of the First Amended Complaint. Such records are inapposite to the allegations raised in the First Amended Complaint and should be disregarded by the Court. Plaintiffs have also discovered that several of the citations and most of the purported analyses are inaccurate.

3

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the inquiries identified in" Rule 23); Chapman v. Worldwide Asset Mgmt. L.L.c., No. 04 C 7625,
2005 WL 2171168, at *1 (Hart, J.) (N.D. Ill. Aug. 30, 2005) ("in detennining whether to grant
certification, whether a claim will ultimately be successful is not a consideration").
Indeed, Szabo is consistent with Eisen's guiding principle that Rule 23 does not authorize
courts to conduct a preliminary assessment ofthe merits of Plaintiffs' individual claims:
We do not believe that Szabo directs district courts to decide class certification questions based on a preliminary assessment of the ultimate merits of the plaintiffs' claims: to base class certification on a prediction of who will win the case would be at odds with Eisen. In our view, the "preliminary inquiry into the merits" discussed in Szabo is a more limited one, that has at its focus not the substantive strength or weakness of the plaintiffs' claims but rather the merits of those allegations that bear on the suitability of a case for class treatment under Rule 23(a) and (b). It is in this limited sense that the Court assesses the "merits" of plaintiffs' allegations in considering the class certification motion.
Rahim v. Sheahan, No. 99 C 0395, 2001 WL 1263493, at *10 (N.D. III Oct. 19,2001); see also
Yon v. Positive Connections, Inc., No. 04 C 2680, 2005 WL 628016, at *1 (N.D. Ill. Feb. 2,
2005) ("Szabo does not pennit a court to reach the merits of a matter in deciding class
certification but, rather, only make the factual and legal inquiries necessary to detennine whether
a class should be certified"); Belbis v. County of Cook, No. 01 C 6119,2002 WL 31600048, at
*6 (N.D. Ill. Nov. 18,2002) ("[C]ontrary to Defendant's overly broad reading of Szabo, the court
does not undertake a review of the merits as if it were detennining a motion for summary
judgment .... Accordingly, the Court does not detennine the substantive strength or weakness
of the allegations in the complaint but rather the merits of the allegations only as they bear on the
suitability of a class action under Rule 23(a) and (b)."); Hamilton v. O'Connor Chevrolet, Inc.,
No. 02 C 1897, 2006 WL 1697171, at *3 (N.D. Ill. June 12, 2006) ("A district court does not
probe behind a plaintiffs allegations or factual assertions to attempt to detennine whether the

4

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plaintiff or defendant ultimately will win on the merits .... Instead, a district court often probes behind a plaintiffs allegations or assertions because it is necessary to determine whether, if the class were certified, the issues presented could fairly and confidently be resolved with respect to all the absent class members based on the proof offered on behalf of the named plaintiff(s)."). It is without question that the issues presented could be fairly and confidently resolved with respect to all class members in the present case since it is Defendants' actionslinaction toward the entire class which gives rise to this action.
It also bears mention that Szabo was not decided in the context of Rule 23(b)(2), the class provision at issue in the instant case. Rather, the Szabo plaintiffs sought class certification under Rule 23(b)(3), wherein the court was required to find "that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Id. at 676. The Szabo Court found that this requirement was not met because the class - a nationwide class asserting claims for breach of warranty, fraud and negligent misrepresentation - was "beset" by "[n]agging issues of choice of law, commonality, and manageability." Id. at 677. Individual damages, in particular, had to be addressed in Szabo. By contrast, Plaintiffs bringing an action under Rule 23(b)(2) need not show that common questions of law or fact predominate, but merely that defendants acted on grounds generally applicable to the class. Additionally, the proposed class here is only requesting injunctive and declaratory relief.3 Choice of law and manageability are simply not concerns in
3 Thus, ''unlike the concerns present in class action personal injury suits, the [class] here will not degenerate into individualized damage determinations." Elliott v. Chicago Hous. Auth., No. 98 C 6307, 2000 WL 263730, at *5 (N.D. Ill. Feb. 28, 2000); Baby Neal v. Casey, 43 F.3d 48, 57 (3d Cir. 1994) ("[B]ecause they do not ... involve an individualized inquiry for the determination of damage awards, injunctive actions 'by their very nature often (Continued ... )
5

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the present case. When such "nagging issues" are absent, Szabo's rationale for inquiring into the merits to determine class certification is not implicated. See, e.g., Parker v. Risk Mgmt. Alternatives, Inc., 206 F.RD. 211, 213 (N.D. Ill. 2002) (defendants' reliance on Szabo to challenge plaintiffs' allegations in the complaint was "misplaced" because "the court's decision not to grant class certification in Szabo was based on choice of law and manageability issues, not lack of evidence in the original motion for· class certification"). Thus, courts in the Northern District of Illinois have adopted a much more limited view of the types of "preliminary inquiry" a court may make in certifications involving Rule 23(b)(2). See, e.g., Owner-Operator Indep. Drivers Assoc. v. Allied Van Lines, Inc., 231 F.RD. 280, 286 (N.D. Ill. 2005) (finding that merits-based arguments had to be deferred until after certification was granted).
Here, the proposed class fits squarely within the ambit of subdivision (b)(2), which includes "actions in the civil rights field where a party is charged with discriminating unlawfully against a class." Advisory Committee Notes, Report ofthe Judicial Conference on the Proposed Rules of Civil Procedure for the United States District Courts, 39 F.RD. 98, 102 (1966). It is the defendants' conduct that is at issue in Rule 23(b)(2) class certification, rather than minor differences in the Plaintiffs' individual circumstances. See, e.g., Allen v. Isaac, 99 F.RD. 45, 56 (N.D. Ill. 1983) (Hart, J.) ("Indeed, Rule 23(b)(2) was intended precisely to reach such cases, where application of a clearly defined policy is appropriate to final injunctive or declaratory relief, settling the legality of the behavior with respect to the entire class."). As recently articulated, "[w]here a defendant's standardized conduct is at issue, this court does not require that the putative class members all suffer the same injury, but rather the uniformity of the
present common questions satisfying Rule 23(a)(2)."') (quoting 7A Charles A. Wright et aI., Federal Practice and Procedure § 1763, at 201 (1986)).

6

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defendant's conduct toward the potential members and the plaintiffs' legal theory." See Ligas v. Maram, No. 05 C 4331, 2006 WL 644474, at *3 (N.D. Ill. Mar. 7, 2006), citing Rosario v. Livaditas, 963 F.2d 1013, 1018 (7th Cir. 1992). Plaintiffs have alleged a pattern or practice generally applicable to the class as a whole: Defendants' practices and policies effectively deny the Plaintiffs and class members the opportunity to move from IMDs to more integrated settings in the community. PI. Mem. at 13. Notably, Defendants nowhere deny that their conduct, in respect to IMD residents, is generally applicable to the class as a whole. Class certification is thus appropriate under Rule 23(b)(2). II. DEFENDANTS' MISCHARACTERIZATION OF PLAINTIFFS' MEDICAL
RECORDS DEMONSTRATES THE INAPPROPRIATENESS OF DEFENDANTS' MERIT-BASED ARGUMENTS AT THE CLASS CERTIFICATION STAGE Plaintiffs believe a merits-based discussion is inappropriate to class certification in the instant case, but feel compelled to address some of the more misleading and erroneous statements made by Defendants with respect to Plaintiffs' IMD records. This discussion aptly illustrates why the Court should not be reviewing such records at the class certification stage. Defendants, for instance, are conspicuously selective in the records they choose to putatively "analyze." These records are removed from their proper context, thereby distorting the meaning of the documents in regard to the Plaintiffs' ongoing psychiatric treatment and their "fit" for community-based integrated housing. Most importantly, Defendants rely primarily on preprinted, formulaic assessment forms that do not address the question that Defendants purport to answer: whether Plaintiffs are being served in the most integrated setting appropriate to their needs. In fact, the records clearly support the Plaintiffs' claim that no system of evaluation of

7

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community alternatives exists nor are choices given to Plaintiffs in their fonn and place of treatment. 4
Defendants, for instance, incorrectly argue that Plaintiffs cannot live in the community based primarily on the fact that, for each named Plaintiff, the IMD physician signed a pre-printed fonn that states as follows:
I certify that I have reviewed & approved the care plan & level of care for this patient & he/she continues to need ( ) Skilled ( ) Respite ( ) ICFIMR ( ) Intennediate care in this facility. See, e.g., MP 3909.5 Defendants' reliance on these fonns is misplaced. Defendants claim these fonns prove that Plaintiffs have been "evaluated for their readiness for community placement." Defs.' Mem. Supp. Resp. at 4. They are wrong. In fact, a finding that a facility resident requires the level of care that the facility provides is regularly used and typically required for any person served under Defendants' long-tenn care system, including people living in institutions and the community. It is not, and never has been, a detennination that Plaintiffs or anyone else are inappropriate for the community. And it is not a detennination that the facility is the only setting, or the most integrated setting, in which that level of care can be provided. Indeed, the standard for the level of care provided by an IMD is a relatively low standard that would· be met by many individuals living in community mental health programs. The individual must require: (a) professional observation for medication monitoring, adjustment or
4 For example, the records of Plaintiff A show that, despite a goal for Plaintiff A of "immediate discharge" to a less structured setting in less than 90 days, MP 4036, Plaintiff A has not been offered any opportunity to move to a less structured setting.
5 Indeed, most of these forms do not even contain check marks indicating which level of care the individual needs; the forms merely contain a signature below the set of unchecked boxes setting forth various levels of care.

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stabilization and (b) daily supervision and assistance in at least two of the following areas: selfmaintenance, social functioning, community living activities, and work-related skills.6 These services are routinely provided to individuals in integrated community programs in Illinois.7
The stock certifications upon which Defendants rely are in fact adapted from various state and federal mandates concerning utilization of institutional care. See Wisconsin Dep 't of Health & Soc. Servs. v. Bowen, 797 F.2d 391 (7th Cir. 1985). They are likely contained in the records of every person in Illinois who is institutionalized. By analogy, Medicaid regulations require that a physician certify that each resident of an institution for people with developmental disabilities (an "intermediate care facility"), or a hospital for people with mental illnesses, needs the services provided in the institution. 42 C.F.R. §§ 456.360, 456.160.
However, just because someone is certified to "need" services that are provided in institutions does not mean the person cannot also safely and adequately receive those services in the community. Indeed, eligibility for many Medicaid-funded community services depends upon a finding that an individual "needs" an institutional level of care. Under Medicaid, states may provide certain "home or community-based services" only
to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility or intermediate care facility....

6 Illinois Dep't of Human Services, Mental Health Program Book, PASIMH, available at http://ww.v.state.il.us/omhidocumentiprogbookJ210_60.htm.
7 See, e.g., wv,'W.thresholds.orgiresidential.asp (the integrated community program provides services such as medication monitoring, psychosocial rehabilitation, skill enhancing activities, crisis intervention, and individual and group counseling to people with mental illnesses in supervised apartment and other settings).
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42 U.S.c. § 1396n(c)(1).8 Thus, the finding that a person "needs" an institutional level of care does not negate the appropriateness of community services; to the contrary, federal law assumes that many persons who need institutional care could also be served in the community.9
Other than the "level of need" determination that Defendants misinterpret, Defendants point to nothing else in the named Plaintiffs' records that states they cannot, from a medical or rehabilitative perspective, be provided with mental health services in the community. Indeed, the named Plaintiffs' records show that they are appropriate for and want community services, but have not been provided with them. For example, even though Plaintiff A's records contain "level of need" certifications cited by Defendants to suggest that she cannot live in the community, Plaintiff A's IMD records also indicate that discharge to a less structured setting is an "immediate goal." MP 4036. While Plaintiff C was certified as requiring an intermediate level of care, Plaintiff C's IMD records also indicate that his day program provider. was contacted "to inquire about [Plaintiff C]'s chances to be assessed for a group home." WC 24445. Clearly, even the IMDs do not regard the "certification of need" as a professional determination on whether the named Plaintiff could live in the community. Simply put, Defendants' inaccurate construction of Plaintiffs' medical records further illustrates why a merits-based analysis of Plaintiffs' claims is inappropriate at the class certification stage.
8 Plaintiffs do not allege that IMDs, which are barred from receiving federal Medicaid funds for persons aged 2264, operate under these requirements. Plaintiffs raise these provisions simply to show that, both as a matter of law and as a matter of Defendants' actual operation oflong-terrn care services, the "level of need" determination does not address whether the setting in which individuals are being served is the most integrated setting appropriate to their needs.
9 Indeed, under Medicaid, States must provide anyone "determined to be likely to require the level of care provided in [an institution]" the "choice" of "feasible alternatives" available in the community under Medicaid. ld. § 1396n(c)(2)(C). Ifbeing "determined to be likely to require" an institutional level of care meant that a person could not safely and adequately be served in the community, Congress's requirement that States provided such persons with the "choice" of community care would be at best superfluous and at worst irresponsible.
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III. PLAINTIFFS' PROPOSED CLASS IS SUFFICIENTLY DEFINITE Contrary to Defendants' arguments that the proposed class is vague and overbroad, the
named Plaintiffs have sufficiently defined the class in both the Amended Complaint as well as their Motion for Class Certification.lo Specifically, the Plaintiffs sufficiently define the class as: "those persons in Illinois who (1) have a mental illness; (2) with appropriate supports and services, could live in the community; and (3) are institutionalized in privately-owned IMDs." Am. CompI. ~ 22.
Defendants first argue that there are no objective criteria to define the class because each member of the class may require individualized treatment that rises to the level of "appropriate supports and services." Defs.' Mem. Supp. Resp. at 13. To the contrary, Plaintiffs have alleged that the Defendants systematically fail to identify and evaluate the needs of all IMD residents, fail to ensure that individuals receive the opportunity to live in a more integrated setting, fail to develop and fund sufficient capacity in community residential programs, and fail to plan to achieve the goal of having sufficient community services. See Am. CompI. ~~ 27,83,90-91,9496. That is, Defendants implement their policies and practices on a broad basis without a
10 Defendants argue that Plaintiffs are not members of the proposed class in another effort to jumble Rule 23 requirements and a merits-based analysis of Plaintiffs' individual claims. However, their reliance on Lewis v. Casey and East Texas Motor Freight is misplaced, as these cases have nothing to do with Rule 23 's requirements. The requirement of "actual injury" that Defendants point to is an element of standing, not of class certification. Lewis v. Casey, 518 U.S. 343, 349, 358 (1996). As the Lewis Court articulated, "[t]he standing determination is quite separate from certification of the class." !d. at 358 n.6. Standing and a determination for class certification are two distinct legal inquiries; accordingly, arguments about standing need to be deferred until after class certification issues are addressed. See, e.g., Ortiz v. Fibreboard Corp., 527 U.S. 815, 831 (1999) ("the issue about Rule 23 certification should be treated first"); Payton v. County ofKane, 308 F.3d 673, 680 (7th Cir. 2002); Scott v. GlaxoSmithKline Consumer Healthcare, L.P., No. 05 C 3004, 2006 WL 952032, at *1 (N.D. Ill. Apr. 12,2006) ("it has been clearly established that in the context of class actions, certification issues must be dealt with before the trial judge decides issue about standing").
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Case 1:05-cv-04673 Document 67 Filed 08/18/2006 Page 12 of 15
determination of each IMD resident's need for appropriate community services in the most integrated setting.
Courts, including the Seventh Circuit, have held that, in determining definiteness, "[t]he important distinguishing characteristic of [the prospective classes] is that their scope is defined by the activities of the defendants." See, e.g., Alliance to End Repression v. Rochford, 565 F.2d 975, 978 (7th Cir. 1977); see also Gates v. Towery, No. 04 C 2155, 2004 WL 2583905, at *4 (N.D. Ill. Nov. 10,2004) ("The scope of the prospective class may be defined, for example, by reference to the defendant's conduct.") (citation omitted). Here, Defendants' policies define the class, determine the size of the class, limit the relevant legal issues, and control the operative facts. In other words, Defendants' activities - their failure to ensure that IMD residents who could live in more integrated settings are given an opportunity to do so - define the scope of the class. Accordingly, the class proposed by the named Plaintiffs is sufficiently definite. See Rahim" 2001 WL 1263493, at *11 ("The Court finds that the proposed definition is not too broad given the defendants' alleged choice to implement the policy on a broad basis, without any distinctions made between [prospective class members] on the bases defendants now assert are necessary.").
Additionally, Defendants complain of the varying treatment required for each IMD resident based on the "diverse factual circumstances that surround each individualized IMD resident." Defs.' Mem. Supp. Resp. at 13. Specifically, Defendants state that "it is unclear what medical and mental threshold the IMD residents must meet to be deemed able to live in the community with 'appropriate supports and services. '" Id. at 14. The named Plaintiffs, however, seek to enjoin the Defendants to ensure that such individualized assessments - of the most integrated setting appropriate - are made in accordance with the Americans with Disabilities
12

Case 1:05-cv-04673 Document 67 Filed 08/18/2006 Page 13 of 15

Act, the Rehabilitation Act, and Olmstead v. L.c., 527 U.S. 581 (1999). If such injunctive relief should be granted, Defendants would be required to ensure that evaluations were conducted, based on professional criteria, of whether each class member could live in the community with appropriate support and services and thus would meet the class definition.11 Under these circumstances, courts have found that similarly proposed classes are sufficiently definite. See Ligas, 2006 WL 644474, at *4 (finding sufficiently definite class where plaintiffs were willing to enjoin defendants to make individual determinations based on reasonable assessments from defendants' own state treatment professionals in accordance with Olmstead).12
CONCLUSION For the reasons stated above, Plaintiffs respectfully request this Court grant their Motion for Certification.

Dated: August 18, 2006

Respectfully submitted,
~ THE ROGER BALDWIN FOUNDATION OF THE AMERICAN CNIL LIBERTIES

11 Although the Defendants argue that "the named Plaintiffs were found ineligible for placement into a more integrated setting on their last assessment," see Response at 14, such a factual determination is misplaced here and is more appropriate at summary judgment or trial.
12 Courts have discretion to redefine a class under appropriate circumstances to bring the action within Rule 23. See Gomez v. Illinois State Sd. ofEduc., 117 F.R.D. 394, 397 n.2 (N.D. I1l. 1987) (citing 7A Wright, Miller & Kane, Federal Practice and Procedure: Civil2d § 1760, at 128 (1986». In particular, a Court may narrow the class to consenting class members. See id. at 398 (redefming the class description to avoid a fmding of indefmiteness). However, Plaintiffs do not believe that such a narrowing of the class is necessary here to meet Rule 23 requirements, as demonstrated above. Whether an IMD resident can "consent" to alternative placement, for instance, is conditioned on whether the resident has been informed of such community-based placements; however, the IMD residents have not been fully informed nor given a choice of such placements. "Consent" is a red herring in this case insofar as IMD residents often believe the only option they have to living in an IMD is living on the street.

13

Case 1:05-cv-04673 Document 67 Filed 08/18/2006 Page 14 of 15
UNION OF ILLINOIS Benjamin S. Wolf 180 North Michigan Avenue Suite 2300 Chicago, Illinois 60601 Telephone: (312) 201-9740 Facsimile: (312) 201-9760
EQUIP FOR EQUALITY Barry C. Taylor Amy F. Peterson Laura Miller John Whitcomb 20 N. Michigan, #300 Chicago, IL 60602 Telephone: (312) 341-0022 Facsimile: (312) 341-0295
ACCESS LIVING Max Lapertosa Kenneth M. Walden 614 West Roosevelt Road Chicago, IL 60607 Telephone: (312) 253-7000 Facsimile: (312) 341-7001
THE BAZELON CENTER FOR MENTAL HEALTH LAW IraBurnim Jennifer Mathis Karen Bower StevenNey 1101 15th Street, NW Suite 1212 Washington, DC 20005 Telephone: 202-467-5730 Facsimile: 202-223-0409
KIRKLAND & ELLIS, LLP Donna M. We1ch Joseph M. Russell 200 East Randolph Drive Chicago,IL 60601 Telephone: (312) 861-2000 Facsimile: (312) 861-2200
14

Case 1:05-cv-04673 Document 67 Filed 08/18/2006 Page 15 of 15 ATTORNEYS FOR PLAINTIFFS
15

 
 CaCsaes1e:015:0-5cv-c-0v-406476373 DDooccuummeenntt118987--37 FFilieledd1018//1205//028008PagePa4g2eo1f 4o9f 5
Response to Reports Prepared by (1) J.K. Tebes, P.T. Amble and M.V. Baranoski and (2) E. Jones
in the Case of Williams et. al. v. Blagojevich et. ai., Case No. 05-4673, N.D. ILL.

Jeffrey Geller, M.D., M.P.H. Professor of Psychiatry
University of Massachusetts Medical School Department of Psychiatry 55 Lake Avenue North Worcester, MA 01655
508-856-6527 (Phone) 508-856-3270 (Fax)
Jeffrey.Geller@umassmed.edu

Submitted to: Timothy Ritchey Peck, Bloom, Austriaco & Koenig, LLC Special Assistant Attorney General 105 West Adams Street, 31 st Floor Chicago, IL 60603
August 18, 2008

EXHIBIT
I t3

CaCsaes1e:015:0-5cv-c-0v-406476373 DDooccuummeenntt118987--37 FFilieledd1018//1205//028008PagePa4g3eo2f 4o9f 5
Tebes, Amble & Baranoski Report
Premise
The study's quest (p. 1) "to determine... whether with appropriate supports and services, residents who participated in the evaluation could live in more integrated community settings", is not in question. There is no doubt that 100% of patients in state hospitals, 100% of residents in IMD's and 100% of persons in group residences and supported housing programs could live in a situation more nominally integrated than where they are now. This was actually demonstrated in western Massachusetts under the federal court consent decree Brewster v. Dukakis. 1 This does not mean that such action actually achieves further integration, is clinically sound and safe, is in the individual's best interest, or is fiscally responsible. It only means it's possible.
Background
The Background section is a selective read of the literature. First, deinstitutionalization was never a "movement" (p. 4). Second, a major, if not the major focus in moving people out of federally-defined IMD's and into community location was and is the state's interest in shifting financial responsibility from state to federal budgets under Medicaid.2 Third, patients have been writing first person accounts for well over 150 years in the USA; this is not a new phenomenon3 (p.4). Fourth, recovery-oriented care (p. 5) has existed intermittently since Benjamin Franklin first opened hospital beds for "insane persons" in the late eighteenth century. Peaks of recoveryoriented services occurred in the 1850's and the 1950's. Fifth, there is no defmition for the community. Sixth, there are no data to support the assertion that given the realities of the twentyfirst century, "supervised or independent living provide a continuum of residential services in the community that can be tailored to the individual's needs" 4 (p. 6). Seventh, there are no data to support the assertion that "relatively few" persons "may require higher levels of care for sustained periods." This flies in the face of the fact that the number ofpeople in 24-hour/day supervised settings with mental illness is the same now as it was at the peak year end census of state and county hospitals in the mid-1950's extrapolated for the increase in population.
Method
The methodology to select residents is sound, but refusers and those unable to consent to the interviews were not considered in their report. Because those individuals who are more capable tend to consent or have the ability to consent, the results of any analysis on the population would be unrepresentative without factoring in the refusers and those unable to consent. By analyzing the pertinent records ofthose individuals who refuse the interview or who are unable to consent
1 Geller JL, Fisher WH, Simon LJ, Wirth-Cauchon JL. Second generation deinstitutionalization II: The impact of Brewster v. Dukakis on correlates of community and hospital utilization. American Journal of Psychiatry 147:982987, 1990 2 Geller JL: Excluding Institutions for Mental Diseases from federal reimbursement for services: Strategy or tragedy. Psychiatric Services 51:1397-1403, 2000 3 Geller JL, Harris M. Women ofthe Asylum. New York, Anchor Books, 1994 4 Geller JL, Fisher WH. Transitional residences in the linear continuum: Debunking the myth. American Journal of Psychiatry 150:1070-1076, 1993
1

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to said interview and by discussing their medical/psychiatric history with the facility staff, I can account for those factors and provide a more complete analysis as to all residents.

The measures used are a partial, but inadequate data set. Most problematic is that the data are essentially a point-in-time data set with no attention to longitudinal factors. The patient interview is almost exclusively about what is true now. The medical record review was limited to the current active chart (per observers ofthe process) with no examination of past medical/psychiatric history. A simple example: On the day John Doe was interviewed by Dr. Tebes, John was doing quite well and scored high on all measures. But, for years John has made serious suicide attempts on the anniversaries of each ofhis parents' deaths, Mother's Day and Father's Day. Since none of these occurred in proximity to Dr. Tebes' interview (in February or March) this does not show up as a factor for consideration.

While Dr. Amble reviewed the current chart, even relevant data found here is not reported.

Significant factors not considered in the report include alcohol abuse/dependence, substance

abuse/dependence, smoking, firesetting risk, history of sexual predatory behavior, among others.

.

.

It is unclear how the Yale Team managed to collect the data they report. They told each resident the interview would take about 30 minutes (Appendix A, p. 46). Per the Yale Team's IMD Visit Schedule (p. 35) and assuming no time for introductions at the facility; no time to record anything between interviews; no time between residents; no bathroom, meal or any other breaks; and assuming Dr's. Tebes and Baranoski were always seeing residents simultaneously, the Team spent about 47 minutes per resident. But it takes 30 minutes to just administer the BPRS to individuals the interview is not familiar with. 5

Results

The Results section is fundamentally flawed because the Yale Team makes sweeping conclusions far beyond their data without reference to any source for their comparisons. They repeatedly compare scores to "individuals living in the community" without any indication of who these people are or where the information came from. This issue appears on virtually every page in the Results section. Many times they indicate some finding may indicate something (favorable to the plaintiffs position) when it could just have easily indicated something significantly different.

The report uses the terms "independent" and "independent with all necessary supports" interchangeably when they are quite different. The researchers assume that because a person says they want to do something, they actually will do it. They know full well this is not the case for any of us.

The Yale Team failed to integrate the data from resident interviews with the data from the medical record review. In fact, the medical record review contributes virtually nothing to the report except for a problematic section on transition planning (p. 26-28).

5 Overall JE, Gorham DR Briefpsychotic rating scale, in AJ Rush Jr., et. al. (eds). Handbook of Psychiatric Measures, Washington DC, American Psychiatric Association, 2000
2

CaCsaes1e:015:0-5cv-c-0v-406476373 DDooccuummeenntt118987--37 FFilieledd1018//1205//028008PagePa4g5eo4f 4o9f 5
The methodology of Tebes, Amble and Baranoski, after their selection of the residents, vitiates their conclusions.
Jones Report
Method
Ms Jones spent one (1) to four (4) hours in each of the 26 Illinois IMD's. While it's impressive she visited all the IMD's, it would probably have been preferable to spend more time per IMD in fewer IMD's. It's not clear from her report what she could actually accomplished in any given IMD.
Ms Jones' methods of conducting her work at each IMD is the same method she used in her visits to Adult Homes in the New York State case DAI Inc. v. Pataki.
Results
Ms Jones' findings in the Illinois IMD's are quite similar to her findings in the NYS Adult Homes. Some paragraphs in the two reports are identical.
Ms Jones [mds not a single resident who makes a single positive comment about the IMD in which he/she resides. These findings strongly contradict those of the Yale Team who found that 30% of residents did not want to move out of the IMD; 29% were fairly satisfied and 39% very satisfied (equals 68% satisfied) with the IMD as a place to live; 79% said they had choices about decorating and furnishing their room; 77% said they had choices about visitors; 50% said they had choices about locking their door.
Community Comparison
The plaintiff's experts do not make comparisons to typical Illinois residential providers and their services. Rather, they make comparisons to exemplary programs recognized as national models of excellence:
Thresholds: thresholds.orglhome2.sp C4 or Community Counseling Center of Chicago: C4chicago.org
Defendants' Experts' Plan
1. We will identify, using the Yale Team's methodology, residents at the same IMD's they visited. We also over sample at each IMD in order to actually obtain 120 cases of individuals who consent. As to those individuals who refuse the interview or who are unable to consent to said interview, we will provide review and analysis of the pertinent records of those individuals as well as discuss their medical/psychiatric history with the facility staff.
2. We will obtain in advance from each IMD records of the identified IMD residents. These records shall include:
3

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a) The first set of evaluations done upon the residents' entry into the IMD, no matter when that was
b) The most recent set of annual assessments c) The entire current record We will request additional information as needed. We have ascertained that it is feasible for the IMD's to produce the above records. We will review these records prior to the site visit to each IMD. 3. When on site at each IMD, we will a) Tour the facility b) Talk to staff and residents throughout the IMD about life in general at the
IMD c) Interview the residents from the identified subsample who agree to participate
in the interview d) Interview staff about the specific residents 4. We will use a number of tools, including, but not limited to a) Psychiatric interview of resident b) Nurse interview of staff c) LOCUS (Level of Care Utilization System for Psychiatric and Addiction
Services)6 d) Mini Mental Status Exam (MMSE)7,8 e) Draw-A-Clock Test8 5. We will integrate the level of care rating from the LOCUS with other residents and record data to create a recommended placement type for each IMD Resident. 6. We will ascertain from the results in #5 the percentage of Residents for whom the recommended placement would be various forms of "independent living" and describe the various services that would be necessary for the Residents to reside in such a setting.
6 http://www.wpic.eduJaacp/findsILOCUS2000.pdf 7 Folstein M, Folstein SE, Meltugh PRo "Mini-mental state" a practical method for grading the cognitive state of patients for the clinician. Journal of Psychiatric Research 12:189-198, 1975 8 http://www.char.brown.eduIMMSE_AND_CLOCK_INSTRUCITONS.PDF
4

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NAME: BUSINESS ADDRESS:
CITIZENSHIP:
UNDERGRADUATE September 1966June 1970
January 1969June 1969 GRADUATE September 1970December 1973
September 1976June 1978 POST GRADUATE January 1974June 1974 July 1974June 1977 July 1977June 1978

CURRICULUM VITAE
Jeffrey L. Geller, M.D., M.P.H.
Department ofPsychiatry University of Massachusetts
Medical School 55 Lake Avenue North Worcester, MA 01655 (508) 856-6527
U.S.A.
EDUCATION AND TRAINING
B.A. 1970 Psychology Williams College Williamstown, MA
Exchange Student Vassar College Poughkeepsie, NY
M.D. 1973 University of Pennsylvania School ofMedicine Philadelphia, PA Rotation at the Austen Riggs Center
Stockbridge, MA, June, 1971-August, 1971 Rotation at Kaimosi Friends Hospital,
Kisumu, Kenya, May, 1973 - August, 1973
M.P.H. 1978 Harvard School of Public Health
Boston, MA
mternship Philadelphia General Hospital Philadelphia, PA
Psychiatric Residency Beth Israel Hospital Boston,MA
N.I.M.H. Fellowship Psychiatry in Primary Care Medicine
1

EXHIBIT
A

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Beth Israel Hospital Boston,MA

APPOINTMENTS AND POSITIONS

ACADEMIC APPOINTMENTS

1974-1978

Fellow Harvard Medical School Boston,MA

1979-1983

Assistant Professor University ofMassachusetts Medical School Worcester, MA

1982-1984

Clinical Assistant Professor Smith School for Social Work Northampton, MA

1983-1984 1984, 1987, 1989

Assistant Professor Harvard Medical School Cambridge, MA
Adjunct Winter Study Faculty Williams College Williamstown, MA

1984-1986

Assistant Professor University of Pittsburgh, School of Medicine Pittsburgh, PA

1986-1991

Associate Professor University ofMassachusetts Medical School Worcester, MA

1991-

Professor University of Massachusetts Medical School Worcester, MA

1993-1994 1995-

Robert Wood Johnson Health Policy Fellow
Adjunct Faculty, Professor Smith College School for Social Work Northampton, MA

9/01-12/01

Visiting Professor Psychology Department Williams College Williamstown, MA

211 0/03-2114/03

Visiting Professor Department of Psychiatry University ofHawaii School of Medicine Honolulu, HI

ACADEMIC CLINICAL AND ADMINISTRATIVE POSITIONS
2

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1979-1983 1983-1984 1984-1986 198619861988-1989 1990-1992 1990-1998

Director Psychiatric Regional Resource Unit Northampton, MA
Medical Director Westfield Community Support Services Westfield, MA
Law and Psychiatry Program Western Psychiatric Institute and Clinic Pittsburgh, PA
Associate Director, 1986
Director of Public Sector Psychiatry Department of Psychiatry University of Massachusetts Medical School Worcester, MA
Westfield Area Mental Health Clinic Westfield, MA
Interim Medical Director, 1987-1988
Interim Director, Continuing Treatment Service Worcester State Hospital Worcester, MA
Director, Open Units Service Worcester State Hospital Worcester, MA
Medical Director Department of Mental Health Central Massachusetts Area Worcester, MA

CERTIFICATION AND LICENSURE

SPECIALTY CERTIFICATION

1981

Diplomate, American Board of Psychiatry and Neurology

MEDICAL LICENSURE

19741984-

Massachusetts, Board of Registration of Medicine Pennsylvania, Bureau of Professional and Occupational Affairs

MEMBERSHIPS IN PROFESSIONAL AND SCIENTIFIC SOCIETIES

1974-

American Psychiatric Association

1974-1984,19861980-1984

Massachusetts Psychiatric Society Western Massachusetts Psychiatric Society

1984-1988,2004-

American Academy of Psychiatry and the Law
3

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1984-1986 19841984198719881988-

Pennsylvania Psychiatric Society American Association for the History of Medicine American Association of Community Psychiatrists American Association for Social Psychiatry American Association of Psychiatric Administrators Group for the Advancement of Psychiatry

1969 1970 1970 1989 1990
1992
1993-1994 1994
1994
1996 1997
1999
2002 2003
2005

HONORS
Phi Beta Kappa, Williams College
Summa Cum Laude, Williams College
Sigma Xi Science Honor Society
Fellow, American Psychiatric Association
Walter E. Barton Award The American College of Mental Health Administration
Exemplary Psychiatrist Award National Alliance for the Mentally III
Robert Wood Johnson Health Policy Fellow
Effective Legislative Fellow Award National Alliance for the Mentally III
Board ofDirectors' Award Community Healthlink mc.
The Myers Center Award for the Study of Human Rights in North America
Rothstein Award Massachusetts Alliance for the Mentally III
President's Award for Public Service University of Massachusetts
Distinguished Fellow, American Psychiatric Association
Arnold L. van Ameringen Award for Psychosocial Rehabilitation American Psychiatric Association
Torrey Advocacy Commendation Award Treatment Advocacy Center

SERVICE

NATIONAL AND REGIONAL COMMITTEE ASSIGNMENTS:
4

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1977-1978 1978 1979-1984 1980-1981 1981-1983 1984-1988 1985-1996
1985-1987 1986-1987 1987-1989 1988-1994 1990-1995
1991- 2000
1993-1996
1993-2001 19931993-1996

Co-chairperson of Professional Advisory Board to Plaintiffs Legal Council, Brewster v. Dukakis
Member, Harvard University Primary Care Delegation to the People's Republic of China
Member, Department of Mental Health Region I Research Review Committee, Commonwealth of Massachusetts
Member, Massachusetts Mental Health Committee, Clinical Committee
Member, City of Northampton Task Force on Deinstitutionalization
American Academy of Law and Psychiatry: Public Service Committee
American Psychiatric Association: Committee on International Abuse of Psychiatry and Psychiatrists Member 1985-1991 Vice Chairman, 1989-1991 Corresponding Member, 1991-1996
American Psychiatric Association: DSM III R Advisory Committee on Impulse Disorders Not Elsewhere Classified
American Psychiatric Association: Local Arrangements Committee, 1987 Institute on Hospital and Community Psychiatry
Massachusetts Psychiatric Society: Public Sector Committee
American Psychiatric Association: DSM IV Advisory Committee on Impulse Disorders Not Elsewhere Classified
American Psychiatric Association: Committee on Psychiatric Services Resource Center Vice Chairman, 1991-1995
American Psychiatric Association: Council on International Affairs Consultant, 1991-1995 Assembly Liaison, 1995-1998 Member, 1997 - 2000 Vice Chairman, 1997-1998 Chairman, 1999 - 2000
American Psychiatric Association: Task Force on Psychiatry in U.S. Territories Chairman, 1993-1996
Massachusetts Psychiatric Society: District Branch Assembly Representative Lead Representative, 1996-2001 APA Assembly Committee on Public and Community Psychiatry Chairman, 2004-
National Advisory Board of Pew Charitable Trust State Hospital Closing Project
5

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1994-

American Psychiatric Association Assembly Committee on Public Psychiatry

1996-1998

American Psychiatric Association History and Library Committee Corresponding Member, 1996-1998

1998-2003

National Mental Health Association, Partners in CARE National Advisory Council

1999-2000

Co-Chair, Scientific Program Committee ofthe Second Sino-American Conference on Psychiatry, Beijing, China, April 6-10, 2000

2000-2002

American Psychiatric Association: Commission on Global Psychiatry

2001-2006

American Psychiatric Association: Assembly Deputy Area I Rep 2001-2002 Area 1 Rep 2002-2006 Assembly Executive Committee 2002-2006 Assembly Committee on Planning 2003-2006

2001-

American Psychiatric Association: Council on Social Issues and Public Policy

2003-

American Psychiatric Association: Intracouncil Workgroup on Inpatient Capacity

2004-2005

CMHS Acute Care Subcommittee

2004-

CMHS National Advisory Council Secretary, 2004-

2004-

American Psychiatric Association: Medicaid Advisory Group

2006-

American Psychiatric Association: Board of Trustees

2006-

American Psychiatric Association: Area 1 Trustee

MEDICAL SCHOOL COMMITTEE ASSIGNMENTS:

University of Massachusetts:

1980-1983

Utilization Review Committee, Northampton State Hospital

1980-1983

Executive Council, Department of Mental Health Region I

1981-1982

Search Committee, Psychiatry Chair of University of Massachusetts Medical Center

1986-

Executive Committee, Department of Psychiatry

1986-1992

Residency Education Committee

1987-1993

Planning Committee, Psychiatric Treatment and Research Center

1987-1993

Planning Committee, Worcester Psychiatric Rehabilitation Center

1990-1994

Review Committee for Public Service Endowment Grants

1990-1991

Search Committee, Psychiatry Chair of the Medical Center of Central
6

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Massachusetts

1991-1992

Co-Director, Salute to Science

1991-1993

Medical School Library Committee

1993-1994

Review Committee for James P. Healey Awards

1993-1994

Search Committee, Psychiatry Chair of St. Vincent Hospital, Worcester, Massachusetts

1994-1998

Pappas Commission on Medical Services at Framingham MCI

1999-2001

Strategic Planning Committee: Community Benefits

University of Pittsburgh:

1984-1986

Utilization Review Committee, Western Psychiatric Institute and Clinic

1984-1986

Ethics and Human Rights Committee, Presbyterian University Hospital

COMMUNITY BOARDS:

1991-

Genesis Club (Fountainhouse Clubhouse)

2003-2004

Sapling Project

EDITORIAL BOARDS AND JOURNAL REFEREE:

19781986-
19871988199119911992-2000 199419952001200620072007-

Referee, American Journal of Psychiatry Referee, Psychiatric Services (formerly Hospital and Community
Psychiatry) Referee, Community Mental Health Journal Referee, American Psychiatric Press Referee, Journal of Nervous and Mental Disease Referee, Behavioral Sciences and the Law Editorial Board, Psychiatric Services Column Editor, Psychiatric Services Book Review Editor, Psychiatric Services Referee, Lancet Referee, Journal of Behavioral Health Services & Research Referee, Israel Journal ofPsychiatry Referee, Psychology, Public Policy & Law

TEACHING

1976-1977

Taught Introduction to Clinical Medicine, Harvard Medical School

1976-1978

Supervisor for Medical Students on clinical rotation in psychiatry, Harvard Medical School

1977-1978

Instructed and supervised primary care residents and primary care staff on psychiatric care, Harvard Medical School and Beth Israel Ambulatory Care Center

1979-1983

Directed required psychiatry rotation for third and fourth year medical
7

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1979-1983 1979-1983 1981-1983 1981-1984 1984-1986 1984-1986 1984-1986 1984-1986 1986-1989 19861986-1992 19861987-1994 1990-1992 1998-2001 19982002-
1981-1984 1982-1983

students ofU. Mass Medical School at Northampton State Hospital
Coordinator ofPsychiatric Grand Rounds, U. Mass Medical School, Northampton State Hospital
Developed and taught patient interviewing utilizing video equipment, U. Mass Medical School at Northampton State Hospital
Co-Developed a Psychology Internship Program at Northampton State Hospital
Supervisor for Smith School for Social Work Students on placement at Northampton State Hospital
Supervision of Psychiatric Residents at Western Psychiatric Institute and Clinic for Psychotherapy and Community Psychiatry
Coordinate Law and Psychiatry rotation for psychiatric residents at Western Psychiatric Institute and Clinic
Coordinate medical student elective in Law and Psychiatry at U. of Pittsburgh School ofMedicine
Teach medical students in required rotations and in clinical ethics at U. of Pittsburgh School of Medicine
Teach second year medical student course in Behavioral Science at U. Mass Medical School
Supervision of psychiatric residents at U. Mass Medical School in Psychotherapy and in Public Sector Psychiatry
Co-teach with Aaron Lazare, M.D., and Paul Barreira, M.D., seminar for PGY II residents in ongoing psychotherapy
Developed and direct fellowship in Public Sector Psychiatry
Develop and direct didactic component of Public Sector Community Psychiatry rotation for PGY III & IV residents
Co-developed and supervise, with Paul Barreira, M.D., the - "Adopt-A-Resident" Program
Responsible for Schizophrenia Module in PGY 1/2 Core Didactic Series
Coordinator of Clinical Case Conference Series at Quincy Mental Health Center, Quincy, MA
Responsible for Public Sector Didactic Series in PGY IIIIIV Core
CONSULTANT
FranklinlHampshire Community Mental Health Center
Center for Human Resources, Northampton, MA
8

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1985-1989 1985-2000 1985-1990 1987-1989 19871991-1993 19911993-1994, 1996-2003
1998-2001 2000-2005 2001-2007
2001-
2005-

U.s. Attorney, Western District of Pennsylvania U.s. Dept. of Justice, Civil Rights Division New York State Office of Mental Health Buffalo Psychiatric Center Massachusetts Board of Registration in Medicine Massachusetts Rehabilitation Commission Geneva Initiative Commonwealth of Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services Vermont Protection and Advocacy New Jersey: Greystone Park Psychiatric Center Tennessee Attorney General/Tennessee Department of Mental Health and
Developmental Disabilities North Carolina Division of Mental Health, Developmental Disabilities and
Substance Abuse Services and Attorney General's Office New York State Attorney General

20052005-2006 2005200620062007-

Vermont Department of HealthlVermont State Hospital New Hampshire Department of Health and Human Services Monitor, U.S. vs. North Carolina Connecticut Department of Mental Health and Substance Abuse Services Oregon State Hospital and Attorney General's Office Georgia State Attorney General's Office and Division of Mental Health,
Developmental Disabilities and Addictive Diseases

PUBLICATIONS

REFEREED ARTICLES
Geller J: "The Development of Behavior Therapy with Autistic Children: A Review." Journal of Chronic Diseases 25:21-31,1972.
Geller JL: "Treatment of Anorexia Nervosa by the Integration of Behavior Therapy and Psychotherapy." Psychotherapy and Psychosomatics 26: 167-177, 1975.
Geller JL, Lister E: "The Process of Criminal Commitment for Pretrial Psychiatric Examination: An Evaluation." American Journal ofPsychiatrv 135:53-60, 1978.

Geller JL: "The Muddied Path Between the Criminal Court and the State Hospital." Journal of Psychiatry and Law 9

CasCea1s:e051-:0cv5-0c4v-60743673DoDcoucmuemnetn1t8189-72-7 FFilieledd0181/2/150/2/00808PagPeag1e9 1o0f 4o9f 32
8:389-411,1980.
Geller JL: "Sustaining Treatment with the Hospitalized Patient Who Refuses Treatment." American Journal of Psychiatry 139:112-113, 1982.
Geller JL: "State Hospital Patients and Their Medication: Do They Know What They Take?" American Journal of Psychiatry 139:611-615, 1982. Reprinted in Spring RL, Lacoursiere RB, Weissenberger G: Patients, Psychiatrists and Lawyers: Law and the Mental Health System. Anderson, Cincinnati, 1989.
Geller J, Brandzel M: "Addressing the Borderline's Repetitive Misuse of the State Hospital: A Case Report." Psychiatric Quarterly 55:275-278, 1983.
Geller J: "Arson: An Unforeseen Sequela of Deinstitutionalization." American Journal of Psychiatry 141:504-508, 1984.
Geller JL, Bertsch G: "Firesetting Behavior in the Histories of a State Hospital Population." American Journal of Psychiatry 142:464-468, 1985.
Geller JL: "Women's Accounts of Psychiatric Illness and Institutionalization." Hospital and Community Psychiatry 36:1056-1062,1985.
Geller JL: "The Long-Term Outcome of Unresolved Grief: An Example." Psychiatric Quarterly 57:142-146, 1985.
Geller JL: "In Again, Out Again. A Preliminary Evaluation of a State Hospital's Worst Recidivists." Hospital and Community Psychiatry 37:386- 390,1986.
Geller JL, Erlen J, Pinkus R: "A Historical Appraisal of America's Experience with 'Pyromania'--A Diagnosis in Search of a Disorder." International Journal of Law and Psychiatry 9:201-229, 1986.
Geller JL: "Rights, Wrongs, and the Dilemma of Coerced Community Treatment." American Journal of Psychiatry 143:1259-1264,1986.
Geller JL, Munetz MR: "The Process of Staff Change: Grappling with the Needs of the High-Management Patient." Hospital and Community Psychiatry 37:1047-1049,1986.
Geller JL: "The Quandaries of Enforced Community Treatment and Unenforceable Outpatient Commitment Statutes." The Journal of Psychiatry and Law 14:149-158, 1986.
Mulvey EP, Geller JL, Roth LH: "Balancing the Promises and Perils of Involuntary Outpatient Commitment." American Psychologist 42:571-584, 1987.
Geller JL: "Fire-setting in the Adult Psychiatric Population." Hospital and Community Psychiatry, 38:501-506, 1987. Abstracted in Psychiatry Digest 1:3-5, 1988.
Geller JL: The "Elixir of Life?" The Journal of Irreproducible Results 33(2):20,1987.
Geller JL, Lidz CW: "When the Subjects are Hospital Staff, is it Ethical (or Possible) to Get Informed Consent?" IRB 9:4-5,1987.
McEvoy JP, Apperson LJ, Appelbaum PS, Ortlip P, Brecosky J, Hammill K, Geller JL, Roth L: "Insight in Schizophrenia: Its Relationship to Acute Psychopathology." Journal of Nervous and Mental Disease 177:43-47, 1989.
McEvoy JP, Freter S, Everett G, Geller JL, Appelbaum P, Apperson LJ, Roth L: "Insight and the Clinical Outcome of Schizophrenic Patients." Journal of Nervous and Mental Disease 177:48-51, 1989.
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McEvoy JP, Appelbaum PS, Apperson LJ, Geller JL, Freter S: "Why Must Some Schizophrenic Patients be Involuntarily Committed? The Role of Insight." Comprehensive Psychiatry 30:13-17, 1989.
Geller JL: "Deinstitutionalization in Nineteenth Century America: A Case Example." Hospital and Community Psychiatry 40:85-86,1989.
Fisher WH, Geller JL, Costello DJ, Phillips BF: "Demographic Trends and Mental Health Services: State hospitals in the 1990's." Hospital and Community Psychiatry 40:747-749, 1989.
Schmidt MJ, Geller JL: "Involuntary Administration of Medication in the Community - The Judicial Opportunity." Bulletin of the American Academy ofPsychiatrv and the Law 17:283-292, 1989.
Geller JL: "A Bite of AIDS? Institutional Line Staff and the Fear ofHIV Contagion." Psychiatric Ouarterly 60:243-251,1989. Abstracted in Sociological Abstracts.
Geller JL, Erlen J, Kaye NS, Fisher WH: "Feigned Insanity in Nineteenth Century America: Tactics, Trials, and Truth." Behavioral Sciences and the Law 8:3-26,1990.
Fisher WH, Geller JL, Wirth-Cauchon J: "Empirically Assessing the Impact of Mobile Crisis Capacity on State Hospital Admissions." Community Mental Health Journal 26:245-253, 1990.
Geller JL: "Low Dose Neuroleptic Treatment (case report)." American Journal of Psychiatry 147:672, 1990.
Geller JL, Fisher WH, Wirth-Cauchon JL, Simon LJ: Second Generation Deinstitutionalization I: "The Impact of Brewster v. Dukakis on State Hospital Case Mix." American Joilrnal of Psychiatry 147:982-987, 1990. Abstracted in Sociological Abstracts and in Digest of Neurology and Psychiatry, NovlDec 1990, p. 264.
Geller JL, Fisher WH, Simon LJ, Wirth-Cauchon JL: "Second Generation Deinstitutionalization II: The Impact of Brewster v. Dukakis on Correlates of Community and Hospital Utilization." American Journal of Psychiatry 147:988-993, 1990. Abstracted in Sociological Abstracts and in Digest of Neurology and Psychiatry, NovlDec 1990, p. 265.
Geller JL: "Clinical Guidelines for the Use ofInvoluntary Outpatient Treatment." Hospital and Community Psychiatry 41 :749-755, 1990. Abstracted in Sociological Abstracts.
Geller JL, Kaye NS: "Smoking in Psychiatric Hospitals: A Historical View of a Hot Topic." Hospital and Community Psychiatry 41 :1349-1350, 1990.
Geller JL: "Any Place But the State Hospital. Examining Assumptions About the Benefits of Admission Diversion." Hospital and Community Psychiatry 42:145-152,1991.
Geller JL: "Operation Desert Storm and Delusions About the War Among Chronic Patients in the Community." Hospital and Community Psychiatry 42:419-420,1991.
Geller JL, Fisher WH, Kaye NS: "Effect of evaluations of competency to stand trial on the state hospital in an era of increased community services." Hospital and Community Psychiatry 42:818-823,1991. Abstracted in Psychiatry Digest 5:21-22, 1992.
Geller JL: "Rx: A Tincture of Coercion in Outpatient Treatment." Hospital and Community Psychiatry 42:1068-1070,1991.
Geller JL, Erlen J, Kaye NS, Fisher WH: "Feigned Insanity in Nineteenth Century America: Experts, Explanations, Evaluations, and Exculpations." Anglo-American Law Review 20:443-481,1991.
Fisher WH, Geller JL, Pearsall D, Simon L, Wirth-Cauchon J: "A Continuum of Services for the Deinstitutionalized, Chronically Mentally III Elderly." Administration and Policy in Mental Health 18:397-410,
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1991.
Geller JL: "Communicative Arson." Hospital and Community Psychiatry 43:76-77, 1992.
Tonkonogy 1M, Geller JL: "Hypothalamic Lesions and Intermittent Explosive Disorder." Journal of Neuropsychiatry and Clinical Neurosciences 4:45-50, 1992.
Geller JL: "Clinical Encounters with Outpatient Coercion at the CMHC: Questions ofhnplementation and Efficacy." Community Mental Health Journal 28:81-94, 1992.
Fisher WH, Geller JL, Altaffer F, Bennett ME: "The Relationship Between Community Resources and State Hospital Recidivism." American Journal of Psychiatry 149:385-390, 1992.
Geller JL, White C, Fisher WH, Sorgi P, Jarvey AM: "Operation Desert Storm and a State Hospital Population: What Patients Knew, Thought, and Felt." Hospital and Community Psychiatry 43:833-835,1992.
Geller JL: "Pathological Firesetting in Adults." International Journal of Law and Psychiatry 15:283-302, 1992.
Geller JL: "A Survey of the "Worst" State Hospital Recidivists in the USA." Hospital and Community Psychiatry 43:904-908,1992.
Geller JL, Gaulin BD, Barreira PJ: A Practitioner's Guide to Use of Psychotropic Medication in Liquid Form. Hospital and Community Psychiatry 43:969-971,1992.
Geller JL: "A Historical Perspective on the Role of State Hospitals Viewed from the Era of the Revolving Door." American Journal of Psychiatry 149:1526-1533, 1992.
Geller JL, Fisher WH, Moynihan K: "Adult Lifetime Prevalence of Fire-setting Behaviors in a State Hospital Population." Psychiatric Ouarterly 63:129-142,1992.
Geller JL, Fisher WH, Bertsch G: "Who Repeats? A Follow-Up Study of State Hospital Patients' Firesetting Behavior." Psychiatric Ouarterly 63: 143-157, 1992.
Geller JL: "Treating Revolving-Door Patients Who Have 'Hospitalphilia': Compassion, Coercion, and Common Sense." Hospital and Community Psychiatry 44:141-146,1993.
Nicholson J, Geller JL, Fisher WH, Dion GL: "State Policies and Programs that Address the Needs of Mentally III Mothers in the Public SectoL" Hospital and Community Psychiatry 44:484-489,1993.
Geller JL, Fisher WH: "Transitional Residences in the Linear Continuum: Debunking the Myth." American Journal of Psychiatry 150:1070-1076, 1993.
Munetz MR, Geller JL: Least Restrictive Alternative in the Post- institutional Era. Hospital and Community Psychiatry 44:967-973,1993.
Fisher WH, White C, Geller JL, Altaffer F: Predicting State vs. Private Hospital Referral in Psychiatric Emergencies. Administration and Policy in Mental Health 21:449-461,1994.
Geller JL: Issues in American Psychiatry Reflected in Remarks of APA Presidents, 1844-1994. Hospital and Community Psychiatry 45 :993-1004, 1994.
Fisher WH, Geller JL, White CL, Altaffer F: "'Serving the Seriously Mentally III in the Least Restrictive Alternative': Issues from a Federal Court Consent Decree." Administration and Policy in Mental Health 22:423436,1995.
Geller JL: A Biopsychosocial Rationale for Coerced Community Treatment in the Management of Schizophrenia. 12

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Psychiatric Quarterly, 66:219-235,1995.
White CL, Bateman A, Fisher WH, Geller JL: Factors Associated with Admission to Public and Private Hospitals from a Psychiatric Emergency Screening Site. Psychiatric Services 46:467-472, 1995.
White CL, Nicholson J, Fisher WH, Geller JL: "Mothers with Severe Mental Illness Caring for Children." Journal of Nervous and Mental Disease 183:398-403, 1995.
Geller JL, Fisher WH, McDermeit M: A National Survey of Mobile Crisis Services and Their Evaluation. Psychiatric Services 46:893-897,1995.
Fisher WH, Soreff S, Geller JL, McDermeit M, White CL, Hicks L: Inpatient Treatment "Careers" of Persons with Schizophrenia: Public and Private Hospital Utilization. Administration and Policy in Mental Health 23:137-151, 1995.
Fisher WH, Simon L, Geller JL, Penk WB, Irvin EA, White CL: Case mix in the "downsizing" state hospital. Psychiatric Services 47:255-262,1996.
Nicholson J, Geller JL, Fisher WH: "Sylvia Frumkin" has a baby: A case study for policy makers. Psychiatric Services 47:497-501,1996.
Geller JL: Mental Health Services in the Future: Managed Care, Unmanaged Care, Mismanaged Care. Smith College Studies in Social Work 66:223-239,1996.
Geller JL: Self-incineration: A review of the psychopathology of setting oneself afire. International Journal of Law and Psychiatry 29:355-372,1997.
Geller JL, Grudzinskas AJ , McDermeit M, Fisher WH, Lawlor T: The efficacy of involuntary outpatient psychiatric treatment in Massachusetts. Administration and Policy in Mental Health 25:271-285, 1998.
Geller JL, Brown 1M, Fisher WH, Grudzinskas AJ, Manning TD: A National survey of "consumer empowerment" at the state level. Psychiatric Services 49:498-503, 1998.
Geller JL, Fisher WH, McDermeit M, White C: The rights of state hospital patients: From state hospitals to their alternatives. Administration and Policy in Mental Health 25:387-401,1998.
Nicholson J, Sweeney EM, Geller JL: Mothers with mental illness: I. The competing demands of parenting and living with mental illness. Psychiatric Services 49:635-642, 1998.
Nicholson J, Sweeney EM, Geller JL: Mothers with mental illness: II. Family relationships and the context of parenting. Psychiatric Services 49:643-649,1998.
Tonkonogy 1M, Geller JL: Late-onset paranoid psychosis as a distinct clinicopathological entity. Neuropsychiatry, Neuropsychology and Behavioral Neurology 12:230-235, 1999.
Geller JL: The last half-century of psychiatric services as reflected in Psychiatric Services. Psychiatric Services 51:41-67,2000.
Geller JL, Fisher WH, McDermeit M, Brown 1M: The effects of public sector managed care on patterns of intensive use of inpatient psychiatric services. Psychiatric Services, 49:327-332, 1998. Reprinted in Psychiatric Services 51 :1385-1391,2000.
Geller JL: The use of advance directives by persons with serious mental illness for psychiatric treatment. Psychiatric Quarterly 71:1-13, 2000.
Penk WE, Flannery Jf. RB, Irvin E, Geller J, Fisher W, Hanson MA: Characteristics of substance-abusing persons 13

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with schizophrenia: The paradox ofthe dually diagnosed. Journal of Addictive Diseases 19:23-30,2000.
Geller JL: At the margins of human rights and psychiatric care in North America. Acta Psychiatrica Scandinavica 101 (399):87-92,2000.
Geller JL: Excluding Institutions for Mental Diseases from federal reimbursement for services: Strategy or tragedy. Psychiatric Services 51:1397-1403, 2000.
Fisher WH, Barreira PJ, Geller JL, White AW, Lincoln AK, Sudders M: Long-stay patients in state psychiatric hospitals at the end of the 20th century. Psychiatric Services 52:1051-1056, 2001.
Geller JL, Sprung S, McCracken SG, Boggio RM, Munetz MR, Zarate CA, Evans NK, Sudders M: The case of Sam: multidisciplinary perspectives. Psychiatric Services 52:1318-1330, 2001.
Stovall J, Hobart M, Geller JL: One strike and you're out: the impact of an employees' strike upon a community mental health center. Psychiatric Services, 55:188-191,2004.
Geller JL, Morrissey JP: Asylum within and without asylums. Psychiatric Services 55:1128-1130, 2004.
Geller JL, Stanley JA: Settling the doubts about the constitutionality of outpatient commitment. New England Journal of Criminal and Civil Confinement, 31:127-138,2005
Geller JL, Stanley JA: Response to: New research continues to challenge the need for outpatient commitment. Journal of Criminal and Civil Confinement, 31:123-126, 2005.
Geller JL, Shore H, Grudzinskas AJ, Appelbaum PS: Against the grain? A reasoned argument for not closing a state hospital. Psychiatric Ouarterly, 76:177-194, 2005.
Geller JL: A history of private psychiatric hospitals in the USA: From start to almost finished. Psychiatric Ouarterly, 77:1-41, 2006.
Geller JL: The evolution of outpatient commitment in the USA: From conundrum to quagmire. International Journal of Law and Psychiatry, 29:234-248, 2006.
Biebel K, NiCholson J, Fisher W, Geller J: A national survey of state mental health authority programs and policies for clients who are parents: A decade later. Psychiatric Ouarterly, 77:119-128, 2006.
Geller JL: Avoiding extinction: Successful private psychiatric hospitals in the opening decade of the twenty-first century. Psychiatric Ouarterly, 77:189-201, 2006.
Geller JL, Biebel K: The premature demise of public child and adolescent inpatient psychiatric beds. Part I: Overview and current conditions. Psychiatric Ouarterly, 77: 251-271, 2006.
Geller JL, Biebel K: The premature demise of public child and adolescent inpatient psychiatric beds. Part II: Challenges and implications. Psychiatric Ouarterly, 77:273-291, 2006.
Geller JL, Fisher WH, Grudzinskas AJ, Clayfield JC, Lawlor T: Involuntary outpatient treatment as 'Deinstitutionalized Coercion': The net-widening concern. International Journal of Law and Psychiatry, 29(6):551562,2006.
Tonkonogy J, Geller J: A neuropsychiatry service in a state hospital. Adolf Meyer's approach revisited. Psychiatric Quarterly, 78:219-235, 2007.
Lawlor T, Grudzinskas AJ, Geller JL, Genovese M: A competency-based approach to managing violence with involuntary outpatient treatment. Administration and Policy in Mental Health & Mental Health Policy Research 34(3):315-318,2007.
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BOOKS
Geller JL, Harris M: Women ofthe Asylum. New York, Anchor Books, 1994.
VIDEOTAPES
Geller JL: Worcester State Hospital Before the War. An Interview with Walter E. Barton, M.D. Worcester, MA, University of Massachusetts Medical School, 1995.
BOOK CHAPTERS AND MONOGRAPHS
Lister E, Geller J: "Crossing Organizational Boundaries: Pre-Trial Commitment for Psychiatric Evaluation." In JP Morrissey, HH Goldman, LV Klerman (eds.), The Enduring Asylum. New York, Grune and Stratton, 1980.
Geller JL, Munetz MR: "The Iatrogenic Creation of Psychiatric Chronicity in Women." In C Nadelson, LL Bachrach (eds.), Treating Chronically Mentally III Women. Washington, DC, American Psychiatric Press, 1988, pp. 141-177.
Geller JL: "We Live in the Community with No Voices of Our Own." In JA Talbott, A Manevitz (eds.), Psychiatric Housecalls. Washington, DC, American Psychiatric Press, 1988, pp. 222-227.
Geller JL: "The Chronic Mentally Ill." In A Lazare (ed): Outpatient Psychiatry. Baltimore, MD, Williams and Wilkins, 1989.
Geller JL, Fisher WH, Simon LJ, Wirth-Cauchon JL: "The Massachusetts Experience with Funded Deinstitutionalization: A Decade of Promises, Products and Problems Under the Brewster v. Dukakis Consent Decree." UMMCIDMH Monograph #PS-891, Worcester, MA, 1989.
Hoge SK, Appelbaum PS, Geller JL: "Involuntary Treatment." In American Psychiatric Press Review of Psychiatry Volume 8. Washington, DC, American Psychiatric Press, 1989, pp. 432-450.
Geller JL: "Arson in Review: From Profit to Pathology." Psychiatric Clinics of North America 15:623-645,1992.
Geller JL: "The Right to Treatment." In R Rosner (ed), The Comprehensive Textbook of Forensic Psychiatry. New York, Van Nostrand, 1994.
Geller JL: Commentary on Suicide. In P Backlar (ed), The Family Face of Schizophrenia. Los Angeles, CA, Jeremy D. Tarcher, 1994.
Geller JL: Coerced Community Treatment and Psychiatric Hospital Recidivism. In S Soreff(ed): Handbook for the Treatment of the Seriously Mentally 111, Seattle, Hogrefe & Huber, 1996.
Geller JL, Nicholson J, Traverso A: The Victimization of Women with Mental Illness by Treators: A Historical Perspective. In M Harris (ed): Sexual Abuse in the Lives of Women Diagnosed with Severe Mental Illness. Amsterdam, Harwood, 1997.
Geller JL: Mental Health Services for the Future: Managed Care, Unmanaged Care, Mismanaged Care? In G Schamess, A Lightburn (eds): Humane Managed Care. Washington, DC, NASW Press, 1998.
Geller JL: Psychiatric Health Care Proxies in Massachusetts: Much to do About Nothing, So Far. In P Backlar, DL Cutler (eds): Ethics in Community Mental Health Care. New York, Kluwer AcademiclPlenum, 2002.
Geller JL: Firesetting: A Burning Issue. In R Kocsis (ed): Criminal Profiling and Serial Violent Crimes. Totowa, NJ, Hurnana Press, in press.
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Geller JL: "History of Hospital Psychiatry and Lessons Learned." m S Sharfstein (ed): Textbook of Hospital Psychiatry. Arlington, VA, American Psychiatric Publishing, mc., in press.
Geller JL, Guzofski S, Lauterback M: "The ms and Outs of200 Years of Psychiatric Hospitals in the USA." m F Ovsiew, RMunich (eds), Principles ofmpatient Psychiatry. Baltimore, MD, Lippincott Williams & Wilkins, in press.
Geller JL: "The Role of the Hospital in the Care of the Mentally Ill." m B Sadock, V Sadock, P Ruiz (eds): Comprehensive Textbook of Psychiatry, ninth edition. New York, NY, Lippincott Williams & Wilkins Publication, in press.
INVITED PUBLISHED PAPERS AND OTHER PUBLICATIONS
Geller JL, Lister ED: Reply to a comment (Ur to edit). American Journal of Psychiatry 135:256, 1978.
Geller JL, Appelbaum PS: Competency to Stand Trial Neuroleptic medication and Demeanor in Court. Hospital and Community Psychiatry, 36:6-7,1985. Reprinted in Rucker WB, Rucker ME (eds): Drugs, Society and Behavior, Dushkin, Guilford, CT, 1987. Reprinted in Paul Appelbaum on Law and Psychiatry, H & CP Service, 1989, pp. 13-14.
Lister ED, Geller JL: The making of a modem psychiatrist: Cracks in the foundation (Ur to edit). American Journal of Psychiatry 142:1524-1525, 1985.
Geller JL: "On strike." Psychiatric Annals 16:188,1986.
Geller JL: Book Review: Premium Non Nocere--Above All, Do No Harm. Contemporary Psychiatry 5:102-105, 1986.
Geller JL: "Can We Talk" evokes praise, objections (Ltr to edit). American Journal of Psychiatry 143:934, 1986.
Geller JL: mvoluntary Outpatient Commitment? Psychiatric Times 3:8-9,1986.
Geller JL: "Psychiatric Health Care Proxies in Massachusetts: Much To Do About Nothing, So Far." m P. Backlar and D.L. Cutler (Eds): Ethics in Community Health Care. New York, Kluwer, 2002.
Geller JL: Outpatient civil commitment. Dr. Geller responds (Ur to edit). American Journal of Psychiatry 144:695,1987.
Geller JL: Coerced outpatient treatment. Dr. Geller replies (Ur to edit). American Journal of Psychiatry 144:968-969,1987.
Geller JL, Hoge SK: Voluntary and involuntary patients. (Ur to edit). American Journal of Psychiatry 144:1112, 1987.
Geller JL: Drug noncompliance. (Ur to edit). Hospital and Community Psychiatry 40:191,1989.
Geller JL: Social work's PIE system. (Ur to edit). Hospital and Community Psychiatry 41 :455,1990.
Geller JL, Roth LR: Commentary on Monahan J: Prediction Research and the Emergency Commitment of Dangerous Mentally III Persons: A Reconsideration. m 1£ Mezzich, B Zimmer (Eds.). Emergency Psychiatry. mtemational University Press, Madison, CT, 1990.
Geller JL, Fisher WH: Psychiatric ward incidents (Ur to edit). Hospital and Community Psychiatry 41: 1024-1 025, 1990.
Geller JL: Services for the homeless mentally ill (Ur to edit). American Journal of Psychiatry 148:272, 1991. 16

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Geller JL: illvoluntary Outpatient Commitment: The Debate Continues (tape). Practical Reviews in Psychiatry and the Law, American Academy of Psychiatry and the Law 1991. Geller JL: Stigmatizing labels (Ltr to edit). Hospital and Community Psychiatry 42:319, 1991. Geller JL, Fisher WH: Reply to 'Community-based care in western Massachusetts'. (Ltr to edit). American Journal of Psychiatry 148:816,1991. Geller JL: Book Review: Schizophrenia: Treatment of Acute Psychotic Episodes. General Hospital Psychiatry 13:281-283,1991. Geller JL: Emergence of a Free Romanian Psychiatry. Psychiatric News 26:14,16, 1991. Geller JL: "Defining the meaning of ' in the community'." Hospital and Community Psychiatry 42:1197,1991. Geller JL: To be poor and mentally ill: Looking back to see ahead, Smith College School for Social Work Journal 9:26-32, 1991. Geller JL: Comment on William H. Wilson, "Psychiatric education in a state hospital: A current approach." Community Mental Health Journal 28:61-67, 1992. Geller JL: Book Review: "Bedlam: A Year in the Life of a Mental Hospital." Hospital and Community Psychiatry 43:652-653, 1992. Fisher WH, Altaffer F, White CL, Geller JL: illpatient Services for the Seriously Mentally Ill: Estimating the State Hospital's "Market Share." Proceedings of the Second Annual Conference on State Mental Health Service System Research. Alexandria VA, National Association of State Mental Health Program Directors Research illstitute, 1991, pp.289-298. Geller JL: Book Review: "The Private Wars of Mrs. Packard." American Journal of Psychiatry 149:971-972, 1992. Geller JL: A glimpse of Romanian psychiatry. Documents of the Geneva Initiative on Psychiatry 59:48-57,1992. Geller JL. ill reply (Ltr to edit). Hospital and Community Psychiatry 44:691, 1993. Geller JL: "On being 'committed' to treatment in the community." Innovations & Research 2:23-27,1993. Geller JL: Book Review: The Death of Superman. Hospital and Community Psychiatry 44:290-292, 1993 Geller JL: Book Review: Girl, illterrupted. Hospital and Community Psychiatry 44: 1108-1109, 1993. Nicholson J, Geller JL, Fisher WH, Dion GL: ill reply (Ltr to edit). Hospital and Community Psychiatry 44:1107, 1993. Geller JL: A Hospital by Any Other Name...Hospital and Community Psychiatry 44:1125, 1993 Geller JL, Harris M: On the usefulness of first-person accounts. Hospital and Community Psychiatry 45:7-8,1994. Geller JL, Appelbaum PS: Samuel B. Woodward's remarks on feigned insanity. Hospital and Community Psychiatry 45:318-319, 328,1994. Geller JL: A history lesson. Psychiatric News 29(6):10,1994. Geller JL: Book Reviews "Crazy All the Time", "Under Observation" and "9 Highland Road." Psychiatric Services
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46:733-735,1995.
Geller JL: First-Person Accounts of Psychiatric Illness and Treatment: Reviews of Recent Books (11 books). Psychiatric Services 46:lO80-1087, 1995.
Geller JL: When Less is More; When Less is Less. Psychiatric Services 46:1105, 1995. Geller JL, Fisher WH: In reply (Ltr to edit). Psychiatric Services 47:91-92,1996.
Geller JL, Fisher WH, McDermeit M: In reply (Ltr to edit). Psychiatric Services 47:3lO, 1996. Geller JL: Disability payments among schizophrenic cocaine abusers (Ltr to edit). New England Journal of Medicine 334:664,1996.
Geller JL: Book Review: Unbearable Affect: A Guide to the Psychotherapy of Psychosis." Psychiatric Services 47:541, 1996. Geller JL: Book Review: "Welcome to My Country." Psychiatric Services 47:658-659, 1996.
Geller JL: Book Review: Affective Disorders From Inside Out: Six First-Person Accounts. Psychiatric Services 47:767-771, 1996.
Geller JL: Book Review: Stories by 'Multiples' as told by themselves (4 books). Psychiatric Services 47:10061008,1996.
Geller JL: Book Review: Patients Talk About Their Treatments: Five First-Person Accounts. Psychiatric Services 47:1135-1138,1996. Geller JL: Make 'em Do It. Psychiatric Services 47:1157, 1996.
Geller JL: Is the Camel's Nose Under the Tent? Psychiatric News 31(23):18,34,1996. Geller JL: Book Review: Psychological trauma from victims' view points: five books. Psychiatric Services 48:251-254, 1997. Geller JL: Book Review: Novel psychiatrists. Review of four novels with psychiatrists as the main character. Psychiatric Services 48:713-716,1997.
Geller JL, McDermeit M, Grudzinskas AJ, Lawlor T, Fisher WH: A competency-based approach to court-ordered outpatient treatment. In MR Munetz (Ed): Can Mandatory Treatment Be Therapeutic? New Directions for Mental Health Services no. 75. San Francisco, Jossey-Bass, 1997, pp. 81-95.
Geller JL: Book Review: First-person accounts with a different slant. Review of seven books. Psychiatric Services 48:1471-1475, 1997.
Geller JL: We still count beds. Psychiatric Services 48:1233, 1997.
Geller JL: Book Review: From the eccentric to the bizarre. Review of five books. Psychiatric Services 49:394396,1998.
Geller JL: Book Review: Daughter's views oftheir mentally ill mothers. Review of three books. Psychiatric Services 49:702-705, 1998.
Geller JL: Book Review: Is it bogus, is it not? Review often books. Psychiatric Services 49:1363-1369,1998.
Geller JL: Book Review: Women speak about their mental illness. Review of six books. Psychiatric Services 18

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50:708-713,1999. Geller JL: Book Review: City of One: A Memoir. Psychiatric Services 50:838-839,1999. Geller JL: Book Review: Wasted: Tales of a Gen X Drunk and My Mamma's Waltz: A Book for Daughters of Alcoholic Mothers. Psychiatric Services 50:1238-1239, 1999. Geller JL: Reclaiming oneself from the symptoms of mental illness. Review of five books. Psychiatric Services 50:1644-1647,1999. Geller JL: Book Review: Girl Interrupted: The book and the film. Psychiatric Services 51 :536-537,2000. Geller JL: First-person accounts in the Journal's first quarter-century. Psychiatric Services 51:575-578, 2000. Geller JL: First-person accounts in the Journal's second 25 years. Psychiatric Services 51 :713-716, 719, 2000. Geller JL: Book Review: Losing family: Three first-person accounts. Psychiatric Services 51:1324-1325, 2000. Munetz MR, Geller JL, Frese FJ: Commentary: Capacity-based involuntary outpatient treatment. Journal of the American Academy of Psychiatry and the Law 28:145-148, 2000. Geller JL: Book Review: Tourette's Syndrome in fact and fiction (3 books). Psychiatric Services 51 :1455-1457, 2000. Geller JL: American "community" psychiatry. The Lancet, supplement, December, 2000. Geller JL: Book Review: Sexual abuse. Review of three books. Psychiatric Services 52:115-116, 2001. Geller JL: You must read this. Psychiatric Services 52:265, 2001. Geller JL: Book Review: Mockingbird Years. Psychiatric Services 52:695-696, 2001. Geller JL: Ain't no such thing as a schizophrenic. Psychiatric Services 52:715, 2001. Geller JL: Book Review: Dates and dictionaries (5 books). Psychiatric Services 52:980-983, 2001. Geller JL: Book Review: Exiting Nirvana: A Daughter's Life with Autism. Psychiatric Services 52:1259-1260, 2001. Geller JL: Book Review: The Day the Voices Stopped: A Schizophrenic's Journey from Madness to Hope. Psychiatric Services 52:1400-1401, 2001. Geller JL: Book Review: One Hundred Days: My Unexpected Journey from Doctor to Patient. Psychiatric Services 52:1403-1404, 2001. Geller JL: Book Review: A sampling of first-person accounts (7 books). Psychiatric Services 52:1540-1543,2001. Geller JL: Donut shop diversion program. Psychiatric Services 52:1559,2001. Geller JL: The Case of Sam: In Reply (Ltr to Edit). Psychiatric Services 53:482, 2002. Geller JL: Does "in the community" mean anything anymore? Psychiatric Services 53: 1201,2002. Geller JL: Book Review: Two personal accounts from Hollywood. Psychiatric Services 53: 1332-1333,2002. Geller JL: Book Review: Three women speak again about experiences with illness. Psychiatric Services 53:1338-
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1339,2002. Geller JL: Process, not practice (Ltr to Edit). Psychiatric Services 54:402, 2003. Geller JL: Book Review: When mental illness comes and goes (3 books). Psychiatric Services 54:1004-1046, 2003. Geller JL: Book Review: Retards, rebels, and slackers. Psychiatric Services 54: 1169-1170, 2003. Geller JL: Medicaid everywhere. Psychiatric Services 55:215, 2004. Geller JL: Book Review: Sadness, depression and hypomania: Five first person accounts. Psychiatric Services 55:590-593,2004. Geller JL: Book Review: How accidents, alcohol and madness affect the family: Three accounts. Psychiatric Services 55:721-723, 2004. Geller JL: Book Review: Personal accounts by users and providers of mental health services: Seven books. Psychiatric Services 55:837-841, 2004. Geller JL: Book Review: The Hillside Diary and Other Writings. Psychiatric Services 55:1070-1071, 2004. Geller JL: Book Review: State Hospitals: Problems and Potentials. Psychiatric Services 55:1185-1186, 2004. Geller JL, Haynes K: Book Review: Family accounts: Autism Spectrum Disorders (six books). Psychiatric Services 55:1320-1322, 2004. Haynes K, Geller JL: Book Review: Personal accounts: Asperger Syndrome (three books). Psychiatric Services 55: 1324-1326, 2004. Geller JL: Book Review: Two masters stumble. Psychiatric Services 55:1446-1447, 2004. Geller JL: Book Review: The cock and bull of Augusten Burroughs (three books). Psychiatric Services 56:363364,2005 Geller JL: Book Review: She's not there: A life in two genders. Psychiatric Services 56:495-496, 2005. Geller JL: Book Review: Fathers lost, found or looking (five books). Psychiatric Services 56:878-880, 2005. Geller JL: A view of American psychiatry (Ltr to Edit). American Journal of Psychiatry 162:1758-1759,2005. Geller JL: Book Review: Menspeak (four books). Psychiatric Services 56:1026-1027, 2005. Geller JL: Book Review: The lobotomist and the lobotomized (two books). Psychiatric Services 56:1318-1319, 2005. Geller JL: First person accounts: The importance of being honest. Psychiatric Services, 57:607, 2006. Geller JL: Book Review: Women speak... briefly (five books). Psychiatric Services 57:145-147, 2006. Geller JL: Book Review: Women's search for love through sex (four books). Psychiatric Services 57:729-730, 2006. Geller JL: Book Review: Briefreviews (seven books). Psychiatric Services 57:749-751, 2006. Geller JL: Book Review: Madhouse: A tragic tale of megalomania and modem medicine. Psychiatric Services
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57:1054-1055,2006.
Geller JL: Book Review: Clinical manual of impulse control disorders. American Journal of Psychiatry 164:352, 2007.
Geller JL: Invisible on judgment day. Psychiatric Services 58: 177-178, 2007. Psychiatric Services 58: 1381-1382, 2007.
Geller JL: Book Review: Shock: The healing power of electroconvulsive therapy. Psychiatric Services 58: 1133, 2007.
Geller JL: Book Review: Freud: Inventor ofthe modem mind. Psychiatric Services 58:1381-1382, 2007.
Geller JL: Book Review: Godless medicine and the sixth cow. Psychiatric Services 58:1609, 2007.
SYMPOSIUM AND PANEL PARTICIPATION
Speaker: "Gender and Gender Dysphoria." Grand Rounds, UMass Medical School, Worcester, MA, April 30, 1981.
Speaker: "The Impact of a Consent Decree on Hospital and Community Development." Conference: Planning for Care of the Seriously mentally III in Times of Austerity. UMass Medical School, Worcester, MA, April 30, 1982.
Speaker: "Arson: An Unforeseen Sequela of Deinstitutionalization." Conference: Clinical Challenges in Crisis Intervention, Consortium Emergency Services Network, Springfield, MA, March 15, 1983.
Symposium: The Role of the Attorney and Guardian Ad Litem in Rogers - Type Guardianships. Hampshire County Bar Association, Northampton, MA, March 14, 1984.
Symposium: Mental Health Procedures Act, Commonwealth of Pennsylvania Department of Public Welfare, Pittsburgh, PA, February, April 1985.
Invited Participant: N.I.H. - U.C.S.F. Conference on Ethics Consultation. National Institute of Health, Bethesda, MD, October 7-8,1985.
Co-Speaker: with Loren H. Roth: "Deinstitutionalization - Reinstitutionalization. Is There a Middle Ground?" ADMIT, Pittsburgh, PA, February 25,1986.
Speaker: "Fire Setting in the Adult Psychiatric Population." Office of Education and Regional Planning, W.P.I.C., Warren, PA, April 4, 1986.
Speaker: "Iatrogenic Creation of Chronicity in Women." Presidential Symposium: "Issues in Treating Chronically mentally III Women." 139th American Psychiatric Association Meeting, Washington, DC, May 12, 1986.
Co-Speaker: with Loren H. Roth: "Involuntary Commitment to Outpatient Treatment." Forum: "Reinstitutionalization: The Next Panacea?" 139th American Psychiatric Association Meeting, Washington, DC, May 14, 1986.
Speaker: "Overview of Mental Health Procedures Act in Pennsylvania." Office of Education and Regional Planning, W.P.I.C., Kitanning, PA, June 4, 1986.
Speaker: "Fire Setting in Adult Psychiatric Patients" Grand Rounds, Worcester State Hospital, Worcester, MA, October 9, 1986.
Speaker: "Interpretation and Treatment Implications of Risk Assessment in the System. The Adult Mental Health Committee of the Greater Worcester Area, Worcester, MA, October 23,1986.
21

CasCea1s:e051-:0cv5-0c4v-60743673DoDcoucmuemnetn1t8189-72-7 FFilieledd0181/2/150/2/00808PagPeag3e1 2o2f 4o9f 32
Speaker: "Involuntary Community Treatment and Its Derivatives." 38th Institute on Hospital and Community Psychiatry, San Diego, CA, October 29,1986.
Speaker: "The Future of Institutional Treatment of the Mentally Ill." Wes-Ros-Park Community Mental Health Center, Boston, MA, November 6, 1986.
Speaker: "Involuntary Community Treatment: Panacea or Problem?" Veterans Administration Northeast Regional Medical Education Center Decentralized On-site Program, Boston, MA, February 25, 1987.
Conference Director: "Family and Community Treatment of Severe Mental Illness." Public Sector Division of University of Massachusetts Department of Psychiatry, Worcester, MA, May 1, 1987.
Speaker: "Diagnosing the Mentally Ill." Western Massachusetts Alliance for Mentally III Citizens, Holyoke, MA, June 8,1987.
Speaker: "Overview of Treatment of the Chronically Mentally Ill." Central Massachusetts Alliance for the Mentally Ill. Worcester, MA, October 13,1987.
Symposium Director: "The Scope of Public Sector Psychiatry in the 1980's. 39th Institute on Hospital and Community Psychiatry, Boston, MA, October 25, 1987.
Workshop Leader: "When the Federal Court Dictates Deinstitutionalization: The Brewster v. Dukakis Consent Decree 1978-1987. 39th Institute on Hospital and Community Psychiatry, Boston, MA, October 26,1987.
Co-Speaker: with Paul Appelbaum: "Mandatory Outpatient Treatment: Legal and Clinical Issues." 39th Institute on Hospital and Community Psychiatry, Boston, MA, October 28,1987.
Speaker: "Involuntary Outpatient Treatment." Community Psychiatry Seminar, Oregon Health Sciences Center, Portland, OR, October 30,1987.
Speaker: "Involuntary Outpatient Commitment." Mental Health Division, Department of Human Resources, Salem, OR, October 30, 1987.
Keynote Speaker: "Outpatient Commitment: Trick of Treat." Annual Meeting of the Mental Health Association of Oregon, Portland, OR, October 31,1987.
Co-Speaker: with Alan R. Kerr: "Intervention with Borderline Patients." Second Annual Western Massachusetts Conference on Human Services: Reaching Populations at Risk, Springfield, MA, November 5,1987.
Speaker: "The Involuntary Treatment of Mental Illness, Models Old and New." Advances in Psychiatry Series, HLA Portsmouth Pavilion, Portsmouth, NH, February 19, 1988.
Keynote Speaker: "Outpatient Commitment." Nebraska Department of Public Institutions, Omaha, NB, April 11, 1988.
Conference Director: "Meeting the Needs of the Chronic Mentally Ill: Patients, Families, and Practitioners in Partnership." Public Sector Division ofthe University of Massachusetts Department of Psychiatry, Shrewsbury, MA, April 29, 1988.
Co-Speaker: with Marilyn Schmidt: "Involuntary Community Treatment in Western Massachusetts: Two Models. Public Sector Division of the University of Massachusetts Department of Psychiatry, Shrewsbury, MA, April 29, 1988.
Speaker: "The Massachusetts Experience with Involuntary Community Treatment." Metropolitan State Hospital Grand Rounds, Waltham, MA, May 24,1988.
22

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Speaker: "Involuntary Community Treatment and Its Benefit to the State Hospital." Westborough State Hospital Grand Rounds, Westborough, MA, October 3,1988.
Co-Speaker: With Robert M. Factor: "'Asylum': Redirection or Misdirection?" 40th Institute on Hospital and Community Psychiatry, New Orleans, LA, October 25,1988.
Poster Presentation: "The State Hospitals' Worst Recidivists: Who Are They and What's to be Done?" 40th Institute on Hospital and Community Psychiatry, New Orleans, LA, October 25, 1988.
Symposium: "Funded Deinstitutionalization: For Whom Does It Work?" 40th Institute on Hospital and Community Psychiatry, New Orleans, LA, October 27,1988.
Speaker: "Firesetting in Children and Adults: Distinctions and Common Denominators." Center for Children and Youth, Westfield, MA, November 16,1988.
Speaker: "Communicative Arson and the Adult Psychiatric Patient." Grand Rounds, Norwich State Hospital, Norwich, CT, November 17,1988.
Speaker: "Firesetting and Servicing the Mentally III in the Community. Mt. Tom Institute, Holyoke, MA, March 6, 1989.
Speaker: "Involuntary Community Treatment and the Families of the Chronic Mentally Ill." National Alliance for the Mentally Ill, Newton-Wellesley Chapter, Newton, MA, March 28,1989.
Speaker: "Prescriptions and Proscriptions in the Treatment of the State Hospital Recidivist." Northampton State Hospital Grand Rounds, Northampton, MA, April 6, 1989.
Speaker: "State Hospital Recidivism and the CMHC" Center for Adults and Families, Westfield, MA, April 26, 1989.
Conference Director: "The State Hospital and Its Alternatives: Myths and Realities." Fifth Annual Public Sector Psychiatry Conference, Department ofPsychiatry, University of Massachusetts Medical School, Worcester, MA, April 28, 1989.
Discussant: "Trafficking in Fire. Dangerous Statements, Dangerous Behavior and the Manipulation of Staff." Grand Rounds, University of Massachusetts Medical Center, Worcester, MA, May 25, 1989.
Speaker: "A Clinician's Primer on Involuntary Outpatient Treatment. 41st Institute on Hospital and Community Psychiatry, Philadelphia, PA, October 16, 1989.
Conference Director: "Violence and Mental Illness: Theory and Prevention." Sixth Annual Public Sector Psychiatry Conference, Department of Psychiatry, University of Massachusetts Medical School, Worcester, MA, April 19, 20,1990.
Speaker: "Contracting with Violent Patients in Outpatient Treatment." Public Sector Psychiatry Conference, Worcester, MA, April 20, 1990.
Speaker: "Pyromania, Communicative Arson, and Public Sector Psychiatry." Grand Rounds, Northampton State Hospital, Northampton, MA, May 31,1990.
Conference Director: "The Asylum: Redirection or Misdirection" Public Sector Division, University of Massachusetts Medical School, Department of Psychiatry, Worcester, MA, June 1, 1990.
Co-Speaker: with Robert 1. Paulson, D.S.W.: "Blowing Winds of Change into Academia: NAMI Recognizes Excellence in Training." Tenth Annual National Alliance for the Mentally III Convention, Chicago, IL, July 21, 1990.
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Speaker: "The State and the State Hospital: Old and New Assumptions." Grand Rounds, Worcester State Hospital, Worcester, MA, September 25, 1990.
Speaker: "Revolvingvolvingvolving Door: Recidivism, Recidivism, and Recidivism." 42nd Institute on Hospital and Community Psychiatry, Denver, CO, October 9, 1990.
Speaker: "Firesetters and Treatment." 42nd Institute on Hospital and Community Psychiatry, Denver, CO, October 10,1990.
Speaker: "'Any Place But the State Hospital.' Examining the Assumptions of Admissions Diversion." Grand Rounds, Northampton State Hospital, Northampton, MA, November 1, 1990.
Speaker: "Pathological Firesetting." Grand Rounds. Worcester State Hospital, Worcester, MA, November 6,1990.
Speaker: "The State and Its State Hospitals: What's Been and What Might Be." Commonwealth of Pennsylvania Superintendent and Chief Physician Meeting, Harrisburg, PA, December 12, 1990.
Speaker: "Here Today, Gone Tomorrow, Back the Next Day: State Hospital Recidivism in Perspective." Grand Rounds, Westboro State Hospital, Westboro, MA, January 29, 1991.
Speaker: "Dilemmas ofthe Revolvingvolvingvolving Door Patient." Grand Rounds, Danvers State Hospital, Hathorne, MA, February 21,1991.
Symposium: "Community/State Relations." Sixth Annual Pennsylvania Conference on Schizophrenia, Pittsburgh, PA, March 8,1991.
Visiting Lecturer, Oregon Department of Human Services: "Arson: From Profit to Pathology," Oregon State Hospital, Salem, OR, April 8, 1991; "The Revolvingvolvingvolving Door," Oregon State Hospital, April 9, 1991; "The Revolvingvolvingvolving Door," Dammasch State Hospital, Wilsonville, OR, April 9, 1991; "Arson: From Profit to Pathology" and "Involuntary Outpatient Treatment in the Community" and "The Revolvingvolvingvolving Door," Eastern Oregon Psychiatric Center, Pendleton, OR, April 10, 1991.
Conference Director: "Controversies in Public Psychiatry: Commitment and Coercion." Seventh Annual Public Sector Psychiatry Conference. Department of Psychiatry, University of Massachusetts Medical School, Worcester, MA, April 19, 1991.
Speaker: "Coercion in the Community: A Copacetic Contract or a Copout." Seventh Annual Public Sector Psychiatry Conference, University of Massachusetts Medical School, Department of Psychiatry, Worcester, MA, April 19, 1991.
Speaker: "Involuntary Outpatient Treatment: Promise and Peril." Fifth Annual Forensic Psychiatry Conference of the Penetanguishene Mental Health Centre and the Ontario Ministry of Health, Midland, Ontario, June 21, 1991.
Speaker: "From 'Asylum' to 'Loony Bin': American Women's Perspectives on Entering the Psychiatric Institution." 43rd Institute on Hospital and Community Psychiatry, Los Angeles, CA, October 22,1991.
Speaker: "Assessing the Utilization Patterns of Community Residential Programs." 43rd Institute on Hospital and Community Psychiatry, Los Angeles, CA, October 23, 1991.
Co-Speaker: with Robert Factor: "Models and Applications of Coerced Community Treatment: Yeah! Nay! or Maybe?" 43rd Institute on Hospital and Community Psychiatry, Los Angeles, CA, October 23,1991.
Speaker: "Psychosis and the Revolvingvolvingvolving Door." Grand Rounds, Newton-Wellesley Hospital, Newton, MA, November 7,1991.
24

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Speaker: "Public Sector Psychiatry and Worn Out Sneakers." Grand Rounds, Worcester State Hospital, Worcester, MA, January 14, 1992.
Speaker: "Historical Appraisal of the Demise of the State Hospital and the Rise of General Hospital Psychiatric Units: Maybe a Reason But No Rhyme." Grand Rounds, Wing Memorial Hospital, Palmer, MA, February 5, 1992.
Speaker: "Community Psychiatry in the 1990's: Confusion? Commitment: Choice!" Third Simposio Psiquiatrico de Puerto Rico, La seccion de Psiquiatria dela Asociacion Medica de Puerto Rico, San Juan, PR, April 11, 1992.
Speaker: "Use of Coercion to Keep People Out of Hospital: Paradigm or a Problem." Grand Rounds, Nassau County Medical Center, East Meadow, NY, April 24, 1992.
Symposium paper: "Romanian Psychiatry: Quest for Professional Freedom." 145th Annual Meeting of the American Psychiatric Association, Washington, DC, May 6,1992.
Conference Director: "Right-Sizing Massachusetts' State Hospitals." Public Sector Division, University of Massachusetts Medical School, Department of Psychiatry, Worcester, MA, May 15, 1992.
Co-Speaker: with Charles Goldman, M.D.: "Model Training Programs in Psychiatry," as part of a conference: "Treating the Seriously Mentally TIl - Educating Professionals for the 21st Century." Medical College of Pennsylvania and National Alliance for the Mentally Ill, Philadelphia, PA, June 5, 1992.
Speaker: "Massachusetts' Experiments in Public Sector Psychiatry in the Nineties and Their Implications for Michigan." Annual Meeting ofthe Michigan Association ofNeuro-Psychiatric Hospitals and Clinics Physicians, Novi, MI, July 17, 1992.
Speaker: "'Clinical coercion' in Post-Totalitarian Romania--Ethical Quagmire?" First International Conference of the Romanian Free Psychiatrists' Association, Bucharest, Romania, October 2, 1992.
Speaker: "A State's Response to Its Seriously Mentally Ill: A Comparison of the Massachusetts Commission Reports of 1855 and 1991." 44th Institute on Hospital and Community Psychiatry, Toronto, October 24,1992.
Speaker: "A Disability Model of Schizophrenia and Psychosocial Modes of Rehabilitation." Harlem Valley Psychiatric Center Grand Rounds, Wingdale, NY, November 20, 1992.
Discussant: Workshop on Treatment of Violent Mentally TIl Persons in the Community: Issues of Research, Policy, and Services. Violence and Traumatic Stress Research Branch, Division of Epidemiology and Services Research, National Institute of Mental Health, Washington, DC, January 15, 1993.
Speaker: "A Patient with High Service Utilization." George B. Wells Human Service Center Mental Health Education and Training, Southbridge, MA, April 1, 1993.
Conference Director: Affective Disorders as Chronic Mental Illness. Public Sector Division, University of Massachusetts Medical Center, Worcester, MA, April 30, 1993.
Speaker: "Pathological Firesetting and the State Hospital." Norwich State Hospital Grand Rounds, Norwich, CT, May 13, 1993.
Co-Speaker: with Sheldon Benjamin, M.D.: "Post-Communist Psychiatry: Report on a Visit to Psychiatric Hospitals in Romania and Ukraine." Westborough State Hospital Grand Rounds, Westborough, MA, May 18, 1993.
Symposium Discussant: "Chronic Institutionalization: Current Status. 146th Annual Meeting of the American Psychiatric Association, San Francisco, CA, May 24,1993.
Speaker: "Is Managed Care Changing Administrative Psychiatry?" 146th Annual Meeting of the American 25

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Psychiatric Association, San Francisco, CA, May 24,1993.
Speaker: "Impinging on Community Practice: More Good Than Bad." A Symposium co-sponsored by APA and AACP. 146th Annual Meeting of the American Psychiatric Association, San Francisco, CA, May 27,1993.
Co-Speaker: with Trevor Hadley, Ph.D., Edna Kamis-Gould, Ph.D., and William Fisher, Ph.D.: Unbundling and Privatizing Psychiatric State Hospital Services: Doing the Right Thing and Doing It Right. 45th Institute on Hospital and Community Psychiatry, Baltimore, MD, October 9, 1993.
Symposium Organizer and Moderator: Medicaid Managed Care for Mental Health/Substance Abuse Services. 45th Institute on Hospital and Community Psychiatry, Baltimore, MD, October 10,1993.
Symposium Presenter: Writing a Paper in Symposium: Writing for Journals. 45th Institute on Hospital and Community Psychiatry, Baltimore, MD, October 11, 1993.
Speaker: The Past and Present of National Health Reform and Mental Health Benefits. Meeting of the Delaware Psychiatric Society, Wilmington, DE, October 28,1993.
Conference Director: Long-term Treatment of Long-term Patients. Public Sector Division, University of Massachusetts Medical Center, Worcester, MA, April 29, 1994.
Symposium Presenter: Writing for Journals. 46th Institute on Hospital and Community Psychiatry, San Diego, CA, September 30,1994.
Symposium Presenter: Ethical Issues in Community Psychiatry. 46th Institute on Hospital and Community Psychiatry, San Diego, CA, October 1,1994.
Symposium Presenter, with Joseph English, Laurie Flynn and Boris Astrachan: Providers and Consumers: Partners in Psychiatric Care. 46th Institute on Hospital and Community Psychiatry, San Diego, CA, October 1, 1994.
Co-Speaker: with Jay Cutler: On the Inside Looking In: The Mental Health/Substance Abuse Benefit in National Health Care Reform. 46th Institute on Hospital and Community Psychiatry, San Diego, CA, October 3, 1994.
Speaker: Health Reform on the Hill: A Capitol Perspective, Grand Rounds, University of Massachusetts Medical School, Worcester, MA, October 13,1994.
Speaker: Juvenile and Adolescent Firesetting. Series sponsored by the Northern Berkshire Mental Health Association, North Adams, MA, November 22, 1994.
Speaker: Psychiatrist in Congress. Mid-Hudson (N.Y.) Branch of the American Psychiatric Association. Poughkeepsie, NY, January 12, 1995.
Speaker: From Long-Term Hospitalization to Community: Progress or Pratfall. Grand Rounds at Hudson River Psychiatric Center, Poughkeepsie, NY, January 13, 1995.
Speaker: National Mental Health Reform: To Be Or Not To Be. Grand Rounds at The Institute of LivinglHartford Hospital, Hartford, CT, January 25,1995.
Co-Speaker: with William Fisher, Ph.D.: Assessing the Efficacy of Outpatient Commitment: A Case Control Study of Service Use by Committed and Non-committed Consumers. Fifth Annual Conference on State Mental Health Agency Services (SMHA) Research, San Antonio, TX, January 31, 1995.
Co-Speaker: with Laurie Flynn. Keynote Address: The Future of Public Psychiatry. The Ohio Institute on Community Psychiatry, Department of Psychiatry CWRU and Ohio Department of Mental Health, Cleveland, OH, March 24,1995.
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Speaker: National Health Reform and Public Sector Psychiatry. Grand Rounds, Westboro State Hospital, Westboro, MA, April 4, 1995.
Speaker: Psychiatric Services Under National Health Reform. Western Massachusetts Psychiatric Society, Springfield, MA, April 19, 1995.
Speaker: Revolution or Revision? Massachusetts' Lessons in Public Managed Care of Mental Illness. The Center for Psychiatric Medicine at St. Francis' Conference: Privatizing Public Mental Health Service Delivery: Promise or Peril, Pittsburgh, PA, April 22, 1995.
Conference Director: In Search of Parity: Mental Illness Care and Mental Illness Coverage. Public Sector Division, University of Massachusetts Medical Center, Worcester, MA, April 28, 1995.
Co-Speaker: with Jay Cutler: Evolving Federal Policy on Mental Illness and the Insurance Coverage. 148th Annual Meeting of the American Psychiatric Association, Miami, FL, May 24,1995.
Speaker: Interfacephiliacs. 1995 National Conference on Mental Health Statistics. Center for Mental Health Services, Washington, DC, June 1, 1995.
Speaker: Who's committed to Involuntary Outpatient Treatment: The Psychiatrist or the Patient?" Grand Rounds, U. of South Dakota School of Medicine, Sioux Falls, SD, June 9,1995.
Speaker: Managed Mental Health Care Has Arrived. Semi-Annual Meeting ofthe South Dakota Psychiatric Society, Sioux Falls, SD, June 10,1995.
Speaker: Mental Health Services ofthe Future: Managed Care, Unmanaged Care, Mis-managed Care. Helen Pinkus Memorial Lecture. Smith College School for Social Work Supervisors' Annual Conference, Northampton, MA, July 21,1995.
Co-Speaker: with Oleg Nasynnik, M.D. Issues in Compulsory Treatment in Forensic Psychiatry. Third Meeting of Reformers of Psychiatry, Prague, Czech Republic, September 1, 1995.
Speaker: Revolution in American Psychiatry: Managed Mental Health Care. Third Meeting of Reformers in Psychiatry, Prague, Czech Republic, September 2, 1995.
Co-Speaker: with Vladimir Tochilov, M.D. Managing a Psychiatric Facility - Models, Obstacles, Objectives. Third Meeting of Reformers of Psychiatry, Prague, Czech Republic, September 2, 1995.
Moderator and Speaker: Major Mental Illness, Women, and Reproduction: Innovative Programs. 47th Institute on Psychiatric Services, Boston, MA, October 9,1995.
Conference Director: Pathological Firesetters: Who; Why; What's to be Done? Public Sector Division, University of Massachusetts Medical Center, Springfield, MA, November 13, 1995.
Speaker: Managed and Unmanaged Behavioral Health Care. Marian Health Center Grand Rounds, Sioux City, lA, January 12, 1996.
Speaker: Managed and Unmanaged Behavioral Health Care. University of South Dakota Medical School, Department of Psychiatry Grand Rounds, Sioux Falls, SD, January 12, 1996.
Speaker: History of the Treatment of Women in the Mental Health System. Conference: Women on the Threshold of Change: Issues in the Mental Health and Chemical Abuse Fields, Morris Plains, NJ, February 1,1996.
Speaker: Compassion and Coercion in the Treatment of Women with Dual Diagnoses. Conference: Women on the Threshold of Change: Issues in the Mental Health and Chemical Dependence Fields, Morris Plains, NJ, February 1, 1996.
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Speaker: How Washington Works: And IfIt Does, What Happens to Us Psychiatrists? Outpatient Psychiatry Annual Series, Massachusetts General Hospital, Boston, MA, April 15, 1995.
Speaker: Involuntary Outpatient Treatment: Who's Committed? ComCare Grand Rounds, Phoenix, AZ, April 16, 1996.
Conference Director: Treating the Dual Disorders: Mental Illness and Substance Abuse. Public Sector Division, University of Massachusetts Medical Center, Worcester, MA, April 27, 1996.
Co-Speaker: with Maureen Slade, R.N., M.S. and Glen Lawrence, M.A. Continuum: Comprehension, Compliance, Coercion. 73rd Annual Meeting ofthe American Orthopsychiatric Association, Boston, MA, May 1, 1996.
Speaker: Public Sector Psychiatric Services at the End of the Millennium: Repetition Compulsionsionsion. 3rd Annual Conference for Mental Health Policy Services and Clinical Research ofthe Connecticut MHC and Department of Psychiatry of Yale University School of Medicine, New Haven, CT, May 30,1996.
Speaker: Involuntary Outpatient Treatment. Department of Mental Health Western Massachusetts Area, Pittsfield, MA, June 19, 1996.
Co-Speaker: with Maureen Slade, R.N., M.S. and Roland Gibson. Continuum: Comprehension, Compliance, Coercion. NAMI 1996 Annual Convention, Nashville, TN, July 8,1996.
Co-Speaker: with Jay Cutler. Lobbying Governmental Organizations. IV Meeting of Reformers in Psychiatry, Madrid, Spain. August 29,1996.
Speaker: Compulsory Outpatient Treatment. IV Meeting of Reformers in Psychiatry, Madrid, Spain. August 30, 1996.
Speaker: Video Workshop: The History of Psychiatry. 48th Institute on Psychiatric Services, Chicago, IL, October 18,1996.
Speaker: What Does a CRIPA Expert Look For? Association of State Mental Health Attorneys Annual Conference, New Orleans, LA, October 22, 1996.
Speaker: Make 'em Do It in the Community! The Facts and Fantasies About Involuntary Outpatient Treatment. Special Programs in Community Psychiatry, Northeastern Ohio Universities College of Medicine, Akron, OH, April 17,1997.
Speaker: Recidivism: Causes and Treatment. 2nd Annual Taunton Psychiatric Conference, Taunton, MA, April 25,1997.
Conference Director: Clinical Management of Pathological Violence. Public Sector Division, University of Massachusetts Medical Center, Worcester, MA, May 2, 1997.
Speaker: Human Rights and Psychiatric Care --Ideas and Realities in North America. Berzelius Symposium XXXVII, Swedish Society of Medicine and the Hastings Center, Stockholm, Sweden, June 17, 1997.
Speaker: Make 'Em Do It! Me? Yeah, You! Nineteenth Annual Inservice Training Conference, Association of Ohio Forensic Psychiatric Center Directors, Columbus, OH, June 20, 1997.
Speaker: The Massachusetts Medicaid Experience. 49th Institute on Psychiatric Services, Washington, D.C., October 26,1997.
Speaker: Involuntary Outpatient Treatment: Been There, Done That, or Not? Massillon Psychiatric Center and Northeastern Ohio Universities College of Medicine, Canton, OH, May 4, 199K
28

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Conference Director: Treatment and Mistreatment of Women with Chronic Mental Illness. Public Sector Division, University of Massachusetts Medical School, Worcester, MA, May 8, 1998.
Discussant: Dealing with Psychopathy: The United States Supreme Court's Hendricks vs. Kansas Decision and Beyond. 151st Annual Meeting of American Psychiatric Association, Toronto, Ontario, June 2,1998.
Conference Co-Chair: Long-Term Care. National Alliance for the Mentally Ill, Bethesda, MD, September 15, 1998.
Discussant: Innovations in Trauma Recovery Work. 50th Institute on Psychiatric Services, Los Angeles, CA, October 5,1998.
Speaker: Competency Evaluations. Fall Judicial Education Conference, Plymouth, MA, October 23, 1998.
Speaker: Written Words by Women with Psychosis. Women and Psychosis Conference, Clarke Institute, Toronto, Ontario. February 25, 1999.
Conference Director: Care and Treatment of "Mentally Ill" Sexual Perpetrators. Public Sector Division, University of Massachusetts Medical School, Worcester, MA, April 30, 1999.
Speaker: The Place of Treatment for Individuals with Chronic, Serious Mental Illness. Grand Rounds, UMDNJNew Jersey Medical School, Newark, NJ, October 20,1999.
Speaker: Whither Social Work? Or, Wither Social Work. Social Work Grand Rounds, Beth Israel Deaconess Hospital, Boston, MA, March 23, 2000.
Co-Chair: with Zou Yizhuang, M.D., Scientific Program Committee of the Second Sino-American Conference on Psychiatry, Beijing, China, April 6-10, 2000.
Conference Director: Implications of the Blurring Boundaries Between Mental Health and Criminal Justice Systems: Policies, Plans, and Practices. Public Sector Division, University of Massachusetts Medical School, Worcester, MA, May 5, 2000.
Discussant: Patient Autonomy and Paternalism Across Cultures. 153 APA Annual Meeting, Chicago, IL, May 16, 2000.
Speaker: The Institution for Mental Disorders (IMD) Exclusion: The Federal Government's Impaired Vision in the Care and Treatment of its Citizens with Chronic Mental Illness. Robert Wood Johnson Health Policy Fellowship Program: Unintended Consequences of Health Policy Programs and Policies, Washington, DC, August 22, 2000. Speaker: An overview of 50 years of Psychiatric Services. 52nd Institute on Psychiatric Services, Philadelphia, PA, October 26, 2000.
Debate Participant: Resolved: Outpatient Commitment is Likely to Do More Harm than Good in Facilitating Effective Treatment of Persons with Serious Mental Illness. 52nd Institute on Psychiatric Services, Philadelphia, PA, October 27,2000.
Speaker: The Sham and Shamefulness ofthe Least Restrictive Alternative Concept as an Enabler of Empowerment. 8th Annual North Carolina Conference on Innovative Approaches in Psychiatric Rehabilitation, Butner, NC, November 2, 2000.
Conference Director: "Benevolent Coercion" to Facilitate Treatment of Persons with Chronic Mental Illnesses. Public Sector Division, University of Massachusetts Medical School, Worcester, MA, April 27,2001.
Speaker: From Right to Treatment to Needs Based Discharge Planning. Association of Public Developmental 29

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Disabilities Administrators, New Orleans, LA, February 20, 2002.
Speaker: Pathological Firesetting: Etiology and Treatment. Northeastern Ohio U. College of Med., Ohio Community Forensic Association and the Ohio Department of Mental Health, Columbus, OH, March 15,2002.
Conference Director: Responding to Parasuicidal Behaviors, Suicide Threats, Suicide Attempts and Suicide. Public Sector Division, University of Massachusetts Medical School, Worcester, MA, April 26, 2002.
Speaker: Extinction versus Adaptation: The Future of State Hospital Psychiatry: Building, Unbuilding, and Rebuilding America's State Hospitals. 155 APA Annual Meeting, Philadelphia, PA, May 20, 2002.
Speaker: The Past, Present and Future of Inpatient Psychiatry. NAMI Kansas, Topeka, KS, September 23,2002. Speaker: Advocating for Patients and Psychiatrists. 54th Institute on Psychiatric Services, Chicago, IL, October 11, 2002.
Conference Director: Addressing the Clinical Issues of Persons with Mentallllness and/or Mental Retardation and Co-occurring Disordered Sexual Behaviors. Public Sector Division, University of Massachusetts Medical School, Worcester, MA, May 9, 2003.
Speaker: Treatment: Rights and Wrongs. Grand Rounds, University of Massachusetts Medical School, June 26, 2003
Speaker: Secrets of the Therapeutic Relationship. Western Massachusetts Psychiatric Society, Springfield, MA, September 17,2003.
Speaker: Living Together in Communities. NAMI-Western Massachusetts. Northampton, MA, October 14,2003.
Discussant: Peer Review and Morbidity and Mortality in the Community: A Ten-Year Perspective. Institute on Psychiatric Services, Boston, MA, October 30, 2003.
Speaker: Forty Years of Neglect: The Federal Role in Caring for the Severely Mentally Ill. American Enterprise Institute for Public Policy Research, Washington, DC, October 31,2003.
Speaker: Mental Illness Services: 1963 Looking Backwards and Forwards. Carson Center for Human Services Fortieth Anniversary Annual Meeting, West Springfield, MA, November 20,2003.
Speaker: When Dollars Trump Sense. American Association of Community Psychiatrists Annual Meeting, Honolulu, Hawaii, February 20, 2004.
Speaker: Treatment and Care of Persons with Serious Mental Illness: Are we Winding Up or Winding Down? Grand Rounds, Westborough State Hospital, Westborough, MA, March 2, 2004.
Panelist: Medical Issues Concerning Involuntary Treatment. New England Journal on Criminal and Civil Confinement, Center for Law and Social Responsibility at the New England School of Law, and UMass Medical School, Boston, MA, March 5, 2004.
Panelist: The Civil Context - Involuntary Outpatient Commitment. New England Journal on Criminal and Civil Confinement, Center for Law and Social Responsibility at the New England School of Law, and UMass Medical School, Boston, MA, March 5, 2004.
Speaker: What Can You Advocate for and Why? NAMI of Central MA, Worcester, MA, March 18, 2004.
Speaker: They Live in My Head. A BI Resident Looks Back at his First Psychotherapy Cases. Beth IsraelDeaconess Grand Rounds, Boston, MA, March 30, 2004.
30

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Speaker: State Hospital Psychiatry: Been Down So Long It Looks Like It's Up To Me. 157th APA Annual Meeting, New York, NY, May 3, 2004.
Panelist: Public Psychiatry: Leading the Way in Transforming Service Delivery in the 21st Century. 157th APA Annual Meeting, New York, NY, May 3, 2004.
Conference Director: Mad or Bad: When is it Psychopathy? Public Sector Division, University of Massachusetts Medical School, Worcester, MA, May 20, 2004.
Speaker: Can't Get No Respect. How'd the American State Hospital Get Here? First Annual Mental Health Conference, Lamed State Hospital, Lamed, Kansas, September 29, 2004.
Co-Speaker, with Debra Pinals, M.D. Police and Mental Health Professionals: Learning From Each Other. 56th Institute on Psychiatric Services, Atlanta, GA, October 10,2004.
Speaker: They Live in My Head. Grand Rounds, University of Massachusetts Medical School, Worcester, MA, November 7,2004.
Speaker and Panelist: Enhancing Personal Liberty for Persons with Serious Mental Illness: Legal and Clinical Perspectives. University of Vermont Department of Psychiatry and Vermont State Hospital, Montpelier, VT, December 9,2004.
Speaker: Clinical Criteria for Involuntary, Coercive and Pseudo-Voluntary Treatment. 5th Annual International Association of Forensic Mental Health Services, Melbourne, Australia, April 19, 2005
Conference Director: Making It In the Community: Best Practices. Public Sector Division, University of Massachusetts Medical School, Worcester, MA, June 28, 2005.
Speaker: Involuntary Outpatient Treatment in the USA: Conundrum or Quagmire. 29th International Congress on Law and Mental Health, Paris, France, July 8, 2005.
Speaker with Fabian Saleh, M.D. and Gina Vincent, Ph.D: Dangerous Ones: Assessing and Treating Psychopaths, Pedophiles and Firesetters. 57th Institute on Psychiatric Services, San Diego, CA, October 7, 2005.
Speaker with Aaron Lazare, M.D. and David Spiegel, M.D.: The Theory and Practice of Apology. 159th Annual Meeting, Toronto, Canada, May 22, 2006.
Conference Director: Creating Sanctuary: Trauma-Informed Treatment and Why It Matters. Public Sector Division, University of Massachusetts Medical School, Worcester, MA, June 9, 2006.
Speaker: Firesetting: A Burning Issue. Sixth Annual International Association of Forensic Mental Health Services, Amsterdam, Netherlands, June 16,2006.
Speaker: Hearing Their Voices: A Resident's First Psychotherapy Case Three Decades Later. University of Vermont College of Medicine, Department of Psychiatry Grand Rounds, January 19, 2007.
Speaker: Soft Voices Can Speak Loudly: Listening to Psychiatric Patients to Avoid Adverse and Costly Outcomes. Mental Health in Development, World Psychiatric Association, Nairobi, Kenya, March 21, 2007.
Speaker: Faux Refusal and Pseudo Cooperation: Clinical Quagmires of Addressing Consent, Assent, Cooperation and Refusal. When, When Not and Why. University ofIowaiCarver College of Medicine/Iowa Psychiatric Society, Ames, Iowa, April 21, 2007.
Speaker: Conceptualizing Access to Psychiatric Care: DOD and VA. APA Annual Meeting, San Diego, CA, May 21,2007.
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Conference Director: Understanding and Treating the Dual Diagnoses of Chronic Mental Illness and Substance Abuse. Public Sector Division, University of Massachusetts Medical School, Worcester, MA, June 1,2007. Speaker: Assisted Outpatient Treatment: A Psychiatrist's Perspective. National Alliance on Mental Illness Annual Meeting, San Diego, CA June 22, 2007.
32

 
 Case: 1:05-cv-04673 Document #: 313 Filed: 08/24/10 Page 1 of 13 PageID #:6180

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ETHEL WILLIAMS, et al.,
Plaintiffs, vs.
PAT QUINN, et al.,
Defendants.

) ) ) ) ) No. 05 C 4673 ) ) Judge Hart )

DEFENDANTS’ RESPONSE TO OBJECTIONS TO PROPOSED CONSENT DECREE INTRODUCTION
Defendants, each in his or her official capacity (collectively, “Defendants”),1 through their attorney, hereby respond to the objections to the Proposed Consent Decree (“Decree”), specifically to Certain IMDs‟ Objections to Proposed Settlement and Consent Decree (“IMD Objections”) (Doc. No. 295) and the Memorandum in Support of Objections to Proposed Consent Decree by Absent Class Members and Family Members (“Absent Class Member Objections”) (Doc. No. 297). For the sake of efficiency, Defendants will respond to those objections that concern issues more within Defendants‟ knowledge or purview – e.g., whether the State can pay for the obligations it has agreed to assume under the Decree. Defendants will leave to Plaintiffs to respond to objections more within their knowledge or purview.

1 Defendants are: Pat Quinn, Governor of Illinois; Michelle R.B. Saddler, Secretary of the Illinois Department of Human Services; Dr. Lorrie Rickman-Jones, Director of the Division of Mental Health, Illinois Department of Human Services; Julie Hamos, Director of the Illinois Department of Healthcare and Family Services; and Dr. Damon Arnold, Director of the Illinois Department of Public Health. Please note that, as of August 24, 2010, Ms. Saddler has been appointed as Chief of Staff to the Governor, and Grace Hou has been named Acting Secretary of the Illinois Department of Human Services.

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ARGUMENT I. The Decree’s impact on funding for services for IMD residents
Both the Absent Class Members and the IMDs assert a funding objection, contending in essence that the parties have not shown that the State can pay for the community-based services that will be provided under the Decree, while also being able to pay for the services for those individuals who remain in the IMDs. See Absent Class Member Objections at 20-24; IMD Objections at 3-6. Both sets of objectors ground their funding objection on their interpretation of what they describe as the third requirement or prong of the Supreme Court‟s decision in Olmstead v. L.C., 527 U.S. 581 (1999) – that the placement of individuals into community-based settings “can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” See Absent Class Member Objections at 20 (quoting Olmstead, 527 U.S. at 607); IMD Objections at 3 (same).
The Defendants disagree with the objectors‟ interpretation of the Olmstead decision, and thus disagree that, in the context of approving a settlement and proposed Decree, the parties are obligated to prove that the State can fund both its existing obligations and proposed new obligations. Rather, the Defendants view the funding (or resource) issue as a component of the fundamental alteration defense to an Olmstead claim, an issue necessarily resolved, as here, as part of a settlement and requiring no additional proof.
Although the objectors accurately quote from the Olmstead decision, they fail to note the context in which the Court discussed the need to consider a state‟s available resources and obligation to provide services to other disabled individuals. In Olmstead, the Court was explicitly considering the dimensions of the fundamental alteration defense to a claimed
2

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violation of the Americans with Disabilities Act (“ADA”). The district court had construed the defense very narrowly and, finding discrimination in violation of the ADA, granted plaintiffs partial summary judgment. See Olmstead, 527 U.S. at 594-95. The Court of Appeals for the Eleventh Circuit affirmed the finding of discrimination but remanded the case for the trial court to consider a broader interpretation of the fundamental alteration defense. Id. at 595-96. The Supreme Court also affirmed the finding of discrimination but further held
that the Court of Appeals‟ remand instruction was unduly restrictive. In evaluating a State‟s fundamental-alteration defense, the District Court must consider, in view of the resources available to the State, not only the cost of provided community-based care to the litigants, but also the range of services the State provides others with mental disabilities, and the State‟s obligation to mete out those services equitably. Id. at 597. Thus, the objectors‟ characterization notwithstanding, the Supreme Court did not command that, in every circumstance, including the evaluation of a proposed settlement, a district court must assess a State‟s resources and other obligations as an essential element of every ADA claim. Rather, a State‟s resources and other obligations are an essential component of a fundamental alteration defense and then only when that defense is at issue. Here, because the Defendants settled with Plaintiffs, Defendants necessarily resolved to their satisfaction all disputed issues, including their previously-asserted fundamental alteration defense. Defendants acknowledge this Court‟s obligation to determine whether a proposed settlement is fair, reasonable and adequate, but that standard does not require the Court to reconsider compromised defenses. This Court is entitled to rely on the opinions of competent counsel for both Plaintiffs and Defendants that the obligations imposed under the Decree are fair, reasonable and adequate, and that implementing the Decree will not cause Defendants to violate
3

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other existing obligations, such as their obligation to continue to provide services to other disabled individuals.
The objectors‟ other funding-related contentions are similarly unpersuasive. Both the Absent Class Members and the IMDs point to the State‟s financial condition and reports of reductions in funding for community mental health services as reasons for demanding that the parties provide more detail and/or more assurances about how the State will continue to fund both IMD and community-based services. See Absent Class Member Objections at 21, 24; IMD Objections at 3-6. The State‟s financial condition, however, whether good or bad, is a largely neutral factor as to the funding of IMD services because the State funds services on a per person basis. For an individual eligible for mental health services, and who receives those services in an IMD, the State will reimburse the IMD based on the services provided to that individual. If that individual instead were to receive services in a community setting, then the State would reimburse the community provider, also based on the services provided to that individual.
The objectors‟ references to proposed cuts to community mental health services are out of date and inaccurate. The objectors cite to newspaper articles from July 2010 and earlier that describe generally proposed reductions in funding for community mental health services. See Absent Class Member Objections at 21 (citing Ex. 8); IMD Objections at 4 (citing Group Ex. 3). Earlier this month, however, and before the objectors filed their objections, the Governor restored funding for community-based mental health residential services and made clear that the other reductions were to services not eligible for Medicaid reimbursement. See Ex.1.2 Because
2 Exhibit 1 can be found at: http://www2.illinois.gov/budget/Documents/FY2011%20Budget%20By%20Agency%20080210. pdf.
4

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the class in this case is limited to Medicaid-eligible individuals, the reported cuts will not affect the State‟s ability to fund the obligations agreed to in the Decree.
Both sets of objectors also express concern that the State will not be able to adequately pay for services for those who move from IMDs into community-based settings and also to continue to pay for those who stay in the IMDs. See Absent Class Member Objections at 22- 23; IMD Objections at 3, 5-6. Although it contradicts their expressed concern, the Absent Class Members at least acknowledge that the State receives no federal Medicaid matching funds for the services provided to IMD residents and thus, on a per person basis, the State saves money on each person it serves in the community instead of in an IMD. See Absent Class Member Objections at 8-9. The IMDs surely know this fact as well but they do not acknowledge it in their objections. Thus, moving individuals from IMDs into the community will free up money that can be used to pay for anyone who is eligible for mental health services, including those who require nursing level of care (which is what is provided in IMDs).3
Finally, the Absent Class Members broadly speculate that “the State will decrease funding for [the Objectors‟] IMDs, or perhaps cut it altogether” and that the parties may claim “that IMD services are not an „entitlement‟ – … that the State can do as it pleases with its IMD residents….” See Absent Class Member Objections at 21, 22. Not surprisingly, the Absent Class
3 To use a concrete example, assuming the State pays a per person average of $30,000 for services for IMD residents and would pay (after subtracting federal matching funds) a per person average of $20,000 for those residents served in the community, then the State would save $10 million if 1,000 IMD residents moved to community-based settings. Of course, there might not be automatic dollar-for-dollar savings for every transition, at least during the initial downsizing of a facility because there might be certain fixed costs associated with a facility that are not reduced on a per person basis as individuals move. And, at least initially, there likely will be some start-up and infrastructure costs that will be added to the overall cost of serving individuals in the community.
5

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Members cite nothing to support their speculation because there is nothing in the Decree or record in this case to support it. What is an entitlement now for Medicaid-eligible individuals – and left unchanged under the Decree – is a nursing level of care for those individuals who, because of their diagnosis of serious mental illness, make them eligible for that level of care. As explained above, the State funds services on a per person basis, not on a facility basis, so as long as current IMD residents remain eligible for a nursing level of care and choose to stay in an IMD, the State will continue to fund the services provided to those individuals.
It is possible that some IMDs may choose to close voluntarily or might have their license or Medicaid certification revoked, as happened with the Somerset facility. If an IMD closes during implementation of the Decree, the State will evaluate the remaining residents to determine whether they are eligible for and would like to move to community-based settings. Then, as now, the State will fund the services provided to those individuals whether they move to community-based settings or into other nursing facilities.
II. The request for more implementation details Both sets of objectors contend that the parties should draft the Implementation Plan
before final approval so that the objectors and the Court will know exactly how individuals will be transitioned from IMDs to community-based settings and thus all will be able to more fully review the proposed settlement. See Absent Class Member Objections at 14-15; IMD Objections at 2, 7. The unspoken and erroneous assumption underlying this objection is that the State has no previous experience overseeing community transitions or the provision of services in community-based settings.
6

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To the contrary, the State has been funding community-based placements for several years, which placements currently total about 640 individuals. See Affidavit of Lindsay Huth, filed herewith as Ex. 2. Many of these individuals were in nursing homes before they transitioned to community-based settings. These individuals have case managers and are served by community providers. The individuals work with their case managers and community providers to obtain housing, medication management and mental health services. Because the State will not be creating a brand new service system to implement the Decree, it is not necessary to advance the preparation of the implementation plan before final approval of the Decree.
III. The IMDs’ role in the State’s mental health services system The Absent Class Members expressly or implicitly contend that IMDs are unique
facilities – different than “traditional” nursing homes – that occupy a unique and necessary place in the continuum of the State‟s mental health care system. See Absent Class Member Objections at 6-9. Because of their supposedly unique role – impliedly providing specialized mental health services – the Absent Class Members suggest the need to protect their existence. The Absent Class Members are misinformed. Focusing on the only relevant characteristic – the services they are required to provide to their residents – IMDs are no different than any other so-called “traditional” long-term care facility. IMDs are nursing homes that are classified by the federal government as IMDs for one reason and one reason only – to identify their services as ineligible for federal matching funds. Thus, IMDs occupy no unique role in Illinois‟ mental health system – different from any other Illinois nursing home – that would require their protection.
Federal law defines an IMD as “a hospital, nursing facility, or other institution of more than 16 beds, that is primarily engaged in providing diagnosis, treatment, or care of persons with
7

Case: 1:05-cv-04673 Document #: 313 Filed: 08/24/10 Page 8 of 13 PageID #:6187
mental diseases, including medical attention, nursing care, and related services.” 42 U.S.C. §1396d (i). As the Absent Class Members recognize, “primarily” means that more than half of the facility‟s residents have a diagnosis of serious mental illness.4 Federal law also states that the services provided in IMDs are not eligible for federal matching funds. See 42 C.F.R. §441.13 (a). Thus, but for the fact that twenty-five facilities in Illinois have more than 50% of their residents with serious mental illness diagnoses, those facilities would not be classified as IMDs and the services they provide would qualify for federal Medicaid matching funds, just like all other “traditional” nursing homes.
Although the Absent Class Members imply that IMDs, because their residents have mental illness, provide specialized mental health services, that suggestion is simply not true. Although a given IMD might provide certain services that another IMD or nursing home does not provide, no IMD is required to provide any specific mental health service by virtue of it being classified as an IMD. In fact, under a new Illinois law enacted in July, 2010, all nursing homes, including IMDs, that seek to serve residents with a diagnosis of serious mental illness will be required to obtain a certification to provide psychiatric rehabilitation services. See 210 ILCS 45/3-202.2b (new) (excerpt of Public Act 096-1372 filed herewith as Ex. 3).5 Once this specialized certification program is in place, the facilities that will occupy a unique place in the
4 The Absent Class Members are wrong when they state that the “IMDs consist only of residents who are mentally ill….” Absent Class Member Objections at 7. Although the vast majority of IMD residents have diagnoses of mental illness, see D. Jones Report at 6 (approximately 95%), the Absent Class Members are wrong to imply that the IMDs are operated in a certain way because all (or even most) of their residents are mentally ill. 5 Public Act 096-1372, of which this new provision is a part, can be found at http://www.ilga.gov/legislation/publicacts/96/096-1372.htm.
8

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continuum of the State‟s mental health care system will be the certified facilities, not the nursing homes classified as IMDs, although a certified facility also might be classified as an IMD because of its population mix.6
IV. The neutrality and qualifications of the Qualified Professionals The Absent Class Members complain that the Decree is flawed because it does not
require that the Qualified Professionals be independent or that they be board-certified psychiatrists. Under the Decree, the Qualified Professionals are the individuals who will evaluate IMD residents for their appropriateness for community transition and then prepare their Service Plans. See Doc. No. 267 at 13, 14. The Decree provides that the Qualified Professionals be “appropriately licensed, credentialed, trained and employed by a [Pre-Admission Screening and Resident Review] PASRR Agency.” Id. at 11. The Decree also provides for specific qualifications for the PASRR Agencies, including that they be independent, conform to federal screening requirements and receive sufficient training. Id. at 10.
As to the independence of the Qualified Professionals, the Absent Class Members do not explain why the requirement of independent PASRR Agencies, which employ the Qualified Professional, is not sufficient. Further, the new law enacted in July, 2010, will further ensure the
6 The Absent Class Members also are wrong to assume that “[e]veryone seems to agree that most severely mentally ill individuals should not reside in „traditional‟ nursing homes, meaning nursing homes where most of the population is elderly and is not mentally ill….” Absent Class Member Objections at 8 n. 4 (emphasis in original). Although there might be general agreement that nursing homes should not mix vulnerable residents (including the elderly) with residents with a propensity toward violence (see Nursing Home Safety Task Force Final Report at 1) (http://www2.illinois.gov/nursinghomesafety/Documents/NHSTF%20Final%20Report.pdf ), nursing homes that are properly run and have appropriate staffing and services should be able to serve residents both with and without mental illness. The Absent Class Members‟ erroneous assumption is again predicated on the inaccurate view that IMDs are designed to serve mentally ill residents, while other nursing homes are not.
9

Case: 1:05-cv-04673 Document #: 313 Filed: 08/24/10 Page 10 of 13 PageID #:6189
independence of PASRR agents. See 210 ILCS 45/2-104.3 (new) (excerpt of Public Act 0961372 filed herewith as Ex. 3).7
The Absent Class Members also provide no basis for their demand that all Qualified Professionals be board-certified psychiatrists. PASRR agents now must be qualified under federal requirements, which requirements must be met for the State to qualify for federal matching funds for PASRR services. The State will continue to abide by those requirements. Further, the new law enacted in July, 2010, provides further qualifications for the PASRR agents who screen individuals before and after admission to nursing facilities, and that law does not require that all PASRR agents be board-certified psychiatrists. See 210 ILCS 45/2-201.5 (excerpt of Public Act 096-1372 filed herewith as Ex. 3).8
V. The right to return to an IMD The Absent Class Members also argue that the Decree should explicitly give an IMD
resident who moves to a community setting the right to return to the same IMD or a different IMD. See Absent Class Member Objections at 19. Under current law, a person in a community setting who requires nursing level of care would be eligible to be admitted (or readmitted) to a nursing home, which could include a nursing home classified as an IMD. The Decree would not change current law on that point. However, under current law, no person has a right to be
7 Public Act 096-1372, of which this new provision is a part, can be found at http://www.ilga.gov/legislation/publicacts/96/096-1372.htm. 8 Public Act 096-1372, of which this new provision is a part, can be found at http://www.ilga.gov/legislation/publicacts/96/096-1372.htm.
10

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admitted to any specific nursing home,9 and the Decree would not change that aspect of current law. The Absent Class Members‟ request for additional language in the Decree is unsupported and unnecessary.
VI. The provision of community-based services to IMD residents Finally, the Absent Class Members contend that the Decree should provide IMD
residents who choose to stay in the IMDs access to the same community-based services that will be provided to those individuals who transition to community settings. See Absent Class Member Objections at19-20. If the Absent Class Members‟ complaint is that IMDs are not now providing services that IMD residents have a right to receive (inside or outside the IMDs), then the Absent Class Members should file their own claim. Because they do not identify any such deprivation, however, this Decree, which is intended to remedy the violations alleged by the Named Plaintiffs, should be approved without extending new rights to IMD residents. In any event, the new law enacted in July, 2010, provides further standards for the care and treatment of residents in facilities certified to provide psychiatric rehabilitation services, including treatment plans and psychiatric rehabilitation and behavior management services. See 210 ILCS 45/3202.2b (new) (excerpt of Public Act 096-1372 filed herewith as Ex. 3).
WHEREFORE, Defendants respectfully request that, following a hearing and consideration of the objections to the Proposed Consent Decree, this Honorable Court overrule all objections and approve the Proposed Consent Decree, and for such other relief as this Court deems necessary and just.
9 See Boudreau ex rel. Boudreau v. Ryan, 2002 WL 314794 at *5 (N.D. Ill. Feb. 28, 2002); aff’d Bruggeman v. Blagojevich, 324 F.3d 906 (7th. Cir. 2003).
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DATED: August 24, 2010

Respectfully submitted,
LISA MADIGAN Attorney General of the State of Illinois

By:

/s/Brent D. Stratton

Attorneys for Defendants

KAREN KONIECZNY #1506277 JOHN E. HUSTON #3128039 CHRISTOPHER S. GANGE #6255970 Assistant Attorneys General 160 North LaSalle Street, Suite N-1000 Chicago, IL 60601 (312) 793-2380

THOMAS A. IOPPOLO #1303686 BRENT D. STRATTON #6188216 KATHLEEN KREISEL FLAHAVEN #6180961 Assistant Attorneys General 100 W. Randolph Street, 13th Floor Chicago, IL 60601 (312) 814-7198

12

Case: 1:05-cv-04673 Document #: 313 Filed: 08/24/10 Page 13 of 13 PageID #:6192 CERTIFICATE OF SERVICE
The undersigned, an attorney of record, hereby certifies that, on August 24, 2010, he caused to be filed through the Court‟s CM/ECF system a copy of Defendants’ Response to Objections to Proposed Consent Decree. Parties of record may obtain a copy of this filing through the Court‟s CM/ECF system.
/s/ Brent D. Stratton Brent D. Stratton
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 Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 1 of 42 PageID #:6443
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ETHEL WILLIAMS, et al., on behalf of themselves )

and all others similarly situated,

)

)

Plaintiffs,

)

)

vs.

)

)

PAT QUINN, et al.,

)

Defendants.

) )

No. 05 C 4673
Judge Hart Magistrate Judge Denlow

PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM IN SUPPORT OF APPROVAL OF CONSENT DECREE AND RESPONSE TO OBJECTIONS

Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 2 of 42 PageID #:6444
TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................................. iii SUMMARY OF ARGUMENT ............................................................................................... 2 ARGUMENT ........................................................................................................................... 4
I. THE STATUS QUO IN ILLINOIS VIOLATES THE LAW AND REQUIRES REDRESS ................................................................................... 4
II. THE PROPOSED CONSENT DECREE OFFERS A FAIR, REASONABLE AND ADEQUATE REMEDY FOR DEFENDANTS’ VIOLATIONS OF THE LAW........................................................................................................ 6 A. The Standard for Approving A Consent Decree.................................. 6 B. Plaintiffs have Negotiated a Settlement that Reflects the Strength of Their Case ............................................................................................ 8 C. A Trial Would Be Complex, Long, and Expensive ........................... 10 D. Many of the Comments Submitted to the Court Support the Decree’s Fairness, Reasonableness and Adequacy, and the Remaining Objections Reflect a Misunderstanding of the Decree......................................... 11
1) Overview of Comments and Objections ................................ 11 A. Comments Not on IMD Forms .................................. 11 B. Comments and Objections on IMD Forms ................ 14
2) This Court Should Reject the Objectiors’ and IMDs’ Attacks on the Proposed Consent Decree ........................................... 18 A. The Decree is sufficiently clear and detailed ............. 20 B. The class definition is sufficiently clear .................... 24 C. Class members should be offered the opportunity to leave the IMDs unless they oppose moving to a community-based setting ........................................... 25 D. The Decree provides for competent evaluations by qualified professionals ............................................... 25
i

Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 3 of 42 PageID #:6445 E. The Court need not expand the scope of the Decree by creating new entitlements to services or funding for people who remain in IMDs ...................................... 27 F. Plaintiffs are entitled to attorneys’ fees ..................... 29
E. The Decree Was Negotiated in Good Faith and Without Collusion.. 31 F. Competent Counsel Support the Settlement ...................................... 32 G. The Settlement Was Reached After Comprehensive Discovery ....... 32 III. INTERESTED PARTIES WERE INFORMED OF THE SETTLEMENT AND HAD THE OPPORTUNITY TO VOICE THEIR OBJECTIONS ...... 33 CONCLUSION...................................................................................................................... 34
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Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 4 of 42 PageID #:6446
TABLE OF AUTHORITIES CASES Agretti v. ANR Freight Sys., Inc., 982 F.2d 242 (7th Cir. 1992)...................................... 11, 19 Armstrong v. Board of School Directors of the City of Milwaukee,
616 F.2d 305 (7th Cir. 1980) ............................................................... 6, 17, 18, 31, 32 Association for Disabled Ams., Inc. v. Amoco Oil Co.,
211 F.R.D. 457 (S.D. Fla. 2002).................................................................................. 7 Austin v. Hopper, 28 F. Supp. 2d 1231 (M.D. Ala. 1998) ..................................................... 15 Boudreau ex rel. Boudreau v. Ryan, No. 00 C 5392, 2002 WL 314794 at *5
(N.D. Ill. Feb. 28, 2002); aff’d Bruggeman v. Blagojevich, 324 F.3d 906 (7th. Cir. 2003) .................................................................................... 29 Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept. of Health & Human Res., 532 U.S. 598 (2001)................................................................................................... 30 Carson v. American Brands, Inc., 450 U.S. 79 (1981) ............................................................ 7 Colbert v. Blagojevich, No. 07 C 4737, 2008 WL 444259 (N.D. Ill. Sept. 29, 2008) ........................................................................................... 24 Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977)..................................................................... 7 Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184 (E.D.N.Y. 2009) ................................................. 3, 10, 21, 22, 28 Disability Advocates, Inc. v. Paterson No. 03-CV-3209, slip op. (S.D.N.Y. March 1, 2010)................................................................... 3, 10, 22 Donovan v. Estate of Fitzsimmons, 778 F.2d 298 (7th Cir. 1985)........................................... 8 EEOC v. Hiram Walker & Sons, Inc., 768 F.2d 884 (7th Cir. 1985) .................................... 18 Frew v. Hawkins, 540 U.S. 431 (2004).................................................................................. 24 Gaddis v. Campbell, 301 F. Supp. 2d 1310 (M.D. Ala. 2004) .............................................. 15 Gaskin v. Pennsylvania, 389 F. Supp. 2d 628 (E.D. Pa. 2005) ............................................. 31 GE Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074 (7th Cir. 1997) ........................ 8
iii

Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 5 of 42 PageID #:6447
In re Mexico Money Transfer Litigation, 164 F. Supp. 2d 1002 (N.D. Ill. 2000) ................... 8 Imasuen v. Moyer, 1992 U.S. Dist. LEXIS 1449 (N.D. Ill. Feb. 7, 1992)............................. 17 Isby v. Bayh, 75 F.3d 1191 (7th Cir. 1996).......................................................................... 6, 7 K.L. v. Edgar, No. 92 C 5722, 2000 WL 1499445 (N.D. Ill. Oct. 6, 2000) .......................... 30 Lanner v. Wimmer, 662 F.2d 1349 (10th Cir. 1981).............................................................. 17 Lewis v. Casey, 518 U.S. 343 (1996) ..................................................................................... 21 League of Martin v. City of Milwaukee, 588 F. Supp. 1004 (E.D. Wis. 1984)...................... 18 Maley v. Del Global Techs. Corp., 186 F.Supp.2d 358 (S.D.N.Y. 2002) ............................. 31 Mars Steel v. Continental Ill. Nat’l Bank & Trust, 834 F.2d 677 (7th Cir. 1987) ................. 31 Memisovski v. Maram, No. 92-CV-1982, slip op. (N.D. Ill. Sept. 14, 2004)......................... 21 Olmstead v. L.C., 527 U.S. 581 (1999).............................................................. 3, 5, 20, 25, 27 Ragsdale v. Turnock, 734 F. Supp. 1457 (N.D. Ill. 1990),
aff’d, 941 F.2d 501 (7th Cir. 1991), cert. denied, Murphy v. Ragsdale, 502 U.S. 1035 (1992).......................................... 18 Reed v. General Motors Corp., 703 F.2d 170 (5th Cir. 1983)............................................... 18 Rolland v. Patrick, No. 98-30208, 2008 WL 4104488 (D. Mass. Aug. 19, 2008) .................. 3 United States v. Bd. of Educ. of the City of Chicago, 717 F.2d 378 (7th Cir. 1983) ............. 23 United States v. Tenn., 2005 WL 1506480 (6th. Cir. June, 23, 2005) ................................... 19 Van Horn v. Trickey, 840 F.2d 604 (8th Cir. 1987)................................................................. 7 Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96 (2d Cir. 2005) ................................ 32 Waters v. Berry, 711 F. Supp. 1125 (D.D.C. 1989)............................................................... 17 Wilder v. Bernstein, 499 F. Supp. 980 (S.D.N.Y. 1980)........................................................ 17 Wis. Hospital Ass’n. v. Reivitz, 820 F. 2d 863 (7th Cir. 1987) .............................................. 24 Wyatt v. Poundstone, 169 F.R.D. 155 (M.D. Ala. 1995) ....................................................... 17
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Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 6 of 42 PageID #:6448
STATUTES 29 U.S.C. § 794(a) ................................................................................................................... 5 29 U.S.C. § 794a(b) ............................................................................................................... 30 42 U.S.C. §§ 1396a-1396v..................................................................................................... 23 42 U.S.C. § 1988.................................................................................................................... 30 42 U.S.C. § 12101(2) (1991) ............................................................................................. 5, 20 42 U.S.C. § 12101(2) (2008) ................................................................................................... 5 42 U.S.C. § 12132.................................................................................................................... 5 42 U.S.C. § 12205.................................................................................................................. 30 410 ILCS 50/3(d) ................................................................................................................... 26 RULES AND ADMINISTRATIVE CODES 59 Ill. Adm. Code Part 132 .................................................................................................... 23 Fed. R. Civ. P. 23(e) .............................................................................................................. 33 Fed. R. Civ. P. 54(d) .............................................................................................................. 30 OTHER AUTHORITIES Manual for Complex Litigation, Fourth, § 21.633 (2005) ....................................................... 7 Newburg on Class Actions, 4th Ed, § 11.41 .......................................................................... 31
v

Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 7 of 42 PageID #:6449

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

ETHEL WILLIAMS, et al., on behalf of themselves and )

all others similarly situated,

)

)

Plaintiffs,

)

)

vs.

)

)

PAT QUINN, et al.,

)

Defendants.

) )

No. 05 C 4673
Judge Hart Magistrate Judge Denlow

PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM IN SUPPORT OF APPROVAL OF CONSENT DECREE AND RESPONSE TO OBJECTIONS
Plaintiffs Ethel Williams, Jan Wrightsell, Edward Brandon, and Gilbert Parham, on
behalf of themselves and all others similarly situated (“Plaintiffs”), submit this memorandum in further support of final approval of the proposed Consent Decree (“Decree”)1 and in response to objections to the Decree2 (“Objections”).

1 The proposed consent decree was first submitted to the Court on March 15, 2010 (Dkt. No. 238, Exhibit 1) and was modified when the Court granted preliminary approval on May 27, 2010. (Dkt. No. 267, Exhibit A).
2 The objections addressed in this brief were included with Plaintiffs’ Notice of Filing, dated August 10, 2010 (Dkt. No. 296), and with Plaintiffs’ Supplemental Notices of Filing, dated August 16, 2010 (Dkt. No. 301) (providing additional objections received by plaintiffs’ counsel after August 10, 2010, but postmarked by that date) and August 20, 2010 (Dkt. No. 312) (additional objections received on or after August 16, 2010). Additionally, this brief responds to the briefs filed in support of objections (Dkt. Nos. 295 & 303). Throughout this brief, citations to particular objections will be by reference to the record cite.
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Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 8 of 42 PageID #:6450
SUMMARY OF ARGUMENT Plaintiffs respectfully urge this Court to approve the proposed settlement of this case in which defendants have agreed to end the policies that unnecessarily isolate and institutionalize people with mental illness in Institutions for Mental Diseases. Plaintiffs contend that Illinois has violated federal law by requiring thousands of people to live in large, segregated Institutions for Mental Diseases (“IMDs”) in order to receive the mental health services they need. Highly qualified experts retained by plaintiffs and defendants concluded that most of the people now housed in IMDs could live safely and appropriately in community-based settings with appropriate supports and services and would choose to move to those settings if offered the opportunity. The Governor’s Nursing Home Safety Task Force recently endorsed this conclusion, acknowledging that “[m]ental health experts unanimously advised the task force that nursing homes are inappropriate places to help individuals recover from mental illness.” (NHSTF Final Report at 4 (attached as Exhibit 3 to Dkt. No. 256)). After the close of discovery, the parties entered into settlement negotiations at the Court’s urging and ultimately came to an agreement, memorialized in a proposed Consent Decree (“Decree”) which the Court modified and preliminarily approved. (Dkt. No. 267 (5/27/10 Order)). Under the Decree, class members will be offered the opportunity to receive independent evaluations to determine the supports and services they need to live in community-based settings. Following the evaluations, class members who agreed to be evaluated will receive individualized service plans describing the services to be provided and will be offered opportunities, if appropriate, to move into more integrated settings over a five-year period. The Decree mandates
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Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 9 of 42 PageID #:6451
that defendants will provide the services and supports these class members need to transition into and succeed in the community.
The Decree also requires the defendants, with input from a court-appointed Monitor and plaintiffs’ counsel, to develop an Implementation Plan that describes in detail the specific tasks, services, supports, timetables, protocols and other actions necessary to achieve compliance with the Decree. (Decree ¶¶ 11, 12.) The Court retains the authority to resolve any disputes about the content of the Implementation Plan after the parties and the Monitor have had an opportunity to review and discuss it. (Id. ¶ 12.)
The Decree is similar to remedies other federal courts have approved after contested proceedings and settlements in cases challenging unnecessary institutionalization of people with disabilities. (See Dkt. No. 288 (Comments by the United States of America), at 1–2 (observing that the Decree “is consistent with approved class action settlement agreements reached in other community integration cases alleging similar discrimination”)). The district court for the Eastern District of New York, for example, recently ordered New York State to provide thousands of residents of large private institutions for individuals with mental illness (“Adult Homes”) the opportunity to live in community-based settings. Disability Advocates, Inc. v. Paterson (“DAI”), No. 03-CV-3209 (NGG), slip op. (E.D.N.Y. March 1, 2010) (attached as Exhibit 1 to Dkt. No. 256). The Adult Homes at issue in DAI are very similar to IMDs. After presiding over a fiveweek bench trial, the court ruled that New York violated the Americans with Disabilities Act and the Rehabilitation Act by failing to provide Adult Home residents “the opportunity to receive services in the most integrated setting appropriate to their needs.” DAI, 653 F. Supp. 2d 184, 187–88 (E.D.N.Y. 2009); see also Rolland v. Patrick, No. 98-30208, 2008 WL 4104488, at *8 (D. Mass. Aug. 19, 2008).
3

Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 10 of 42 PageID #:6452
The Decree offers fair, reasonable and adequate relief to all class members. More than one hundred class members have filed comments supporting the Decree, expressing their hope for a future life away from the institutions and in their own homes. In contrast, many of the objections filed with the Court are the regrettable result of the campaign of fear and misrepresentation engineered by the IMDs. (See Dkt. No. 285 (7/27/10 Order) at 8–10 (detailing misrepresentations contained in notices distributed by IMDs)). The objections almost uniformly focus on issues unrelated to the fairness or adequacy of the Decree and are based on a misunderstanding about the relief it offers. They emphasize that some class members want to remain in IMDs but fail to acknowledge that nothing in the Decree requires anyone to move out of an IMD if they want to stay. The Decree enhances the choices available to all class members.
Plaintiffs ask this Court to approve the Decree, with the parties’ agreement, so that Illinois IMD residents with mental illness will have the opportunity to enjoy their fundamental civil right to live in an integrated setting appropriate to their needs.
ARGUMENT I. THE STATUS QUO IN ILLINOIS VIOLATES THE LAW AND REQUIRES
REDRESS As the United States Supreme Court affirmed in Olmstead v. L.C., “unjustified institutional isolation of persons with disabilities is a form of discrimination.” 527 U.S. 581, 600 (1999). The Court found that “unjustified placement or retention of persons in institutions, severely limiting their exposure to the outside community, constitutes a form of discrimination based on disability prohibited by Title II” of the Americans with Disabilities Act (“ADA”). Id. at 596. “Institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Id. at 600.
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Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 11 of 42 PageID #:6453

The shameful history of isolation and segregation of people with disabilities has been

recognized by courts and the United States Congress. In 1990, in passing the ADA, Congress

found that “historically, society has tended to isolate and segregate individuals with disabilities,

and, despite some improvements, such forms of discrimination against individuals with

disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(2)

(1991). Indeed, in signing the ADA, President George H.W. Bush said: “Let the shameful walls

of

exclusion

finally

come

tumbling

down.”

See

http://www.eeoc.gov/eeoc/history/35th/videos/ada_signing_text.html (Remarks of President

George Bush at the Signing of the Americans with Disabilities Act). Two years ago, in

justifying amendments to the ADA, Congress found that such discrimination and segregation

continues to be a problem, nearly 20 years after the original passage of the ADA. 42 U.S.C. §

12101(2) (2008).

Plaintiffs’ complaint alleges that defendants have failed to comply with federal law by

maintaining a segregated, outmoded system that relies heavily on institutions, and by failing to

have “a comprehensive, effectively working plan for placing qualified persons with mental

disabilities in less restrictive settings” as required by Olmstead. 527 U.S. at 605-06. Plaintiffs

contend that defendants are violating the integration mandates of Title II of the ADA, 42 U.S.C.

§ 12132 and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), which require that

services, programs and activities be provided in the most integrated setting appropriate to the

needs of individuals with disabilities.

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Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 12 of 42 PageID #:6454
Plaintiffs have developed the necessary proof to support these claims, including the retention of five experts3 who would testify, among other things, that:
• most class members can live in supportive housing, a far more integrated setting than an IMD, and the remainder can live in supervised settings that are smaller and more integrated than an IMD;
• most class members would choose to live in more integrated settings if given a meaningful choice;
• supportive housing can and has served individuals with mental illness with a wide variety of needs, including individuals with very challenging needs;
• defendants have the ability to make supportive housing and other community-based settings available to class members and could do so without incurring undue costs (and would in fact realize savings from doing so);
• there are service providers in Illinois who have the capability and willingness to serve IMD residents in more integrated settings; and
• defendants do not have a comprehensive, effectively working plan for moving individuals from IMDs to more integrated settings.
Defendants’ experts disagreed with some of these conclusions but acknowledged that many people living in IMDs could live in more integrated settings, including supportive housing. II. THE PROPOSED CONSENT DECREE OFFERS A FAIR, REASONABLE AND
ADEQUATE REMEDY FOR DEFENDANTS’ VIOLATIONS OF THE LAW A. The Standard for Approving a Consent Decree
3 The reports prepared by plaintiffs’ experts, Dennis Jones, Elizabeth Jones, and Drs. Jacob Tebes, Madelon Baranoski and Paul Amble (“Yale Team”), are attached as Exhibit 1 (“D. Jones Report”), Exhibit 2 (“E. Jones Report”) and Exhibit 3 (“Yale Report”).
6

Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 13 of 42 PageID #:6455
Courts favor the resolution of class actions by way of settlement and will approve such a settlement if it is fair, reasonable, and adequate when viewed in its entirety. Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir. 1996). In considering final approval, the court is not called upon to determine whether the settlement reached by the parties is the best possible deal or whether all class members approve such a settlement. See Armstrong v. Board of School Directors of the City of Milwaukee, 616 F.2d 305, 312 (7th Cir. 1980); see also Association for Disabled Ams., Inc. v. Amoco Oil Co., 211 F.R.D. 457, 467 (S.D. Fla. 2002) (“Even when the Court becomes aware of one or more objecting parties, the Court is not ‘required to open to question and debate every provision of the proposed compromise. The growing rule is that the trial courts [sic] may limit its proceeding to whatever is necessary to aid it in reaching an informed, just and reasoned decision.’”) (quoting Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977)).
A district court should refrain from resolving the merits of the case or resolving unsettled legal questions. Carson v. American Brands, Inc., 450 U.S. 79, 88 n.14 (1981); see also EEOC v. Hiram Walker & Sons, Inc., 768 F.2d 884, 889 (7th Cir. 1985). The purpose of the fairness hearing is to “provide class members an opportunity to present their views on the proposed settlement and to hear arguments and evidence for and against the terms.” David F. Herr, Manual for Complex Litigation, Fourth, § 21.633 (2005). Because the object of settlement is to avoid, not confront, the determination of contested issues, the approval process should not be converted into an abbreviated trial on the merits. Van Horn v. Trickey, 840 F.2d 604, 607 (8th Cir. 1987) (“the district court need not undertake the type of detailed investigation that trying the case would involve”). Instead, the court’s inquiry should be “limited to the consideration of whether the proposed settlement is lawful, fair, reasonable, and adequate.” Isby, 75 F.3d at 1196.
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Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 14 of 42 PageID #:6456
The Seventh Circuit has identified six factors for analyzing whether a class action settlement or consent decree meets these requirements and should therefore be given final approval. These are:
1. the strength of the plaintiffs’ case on the merits balanced against the settlement;
2. the complexity, length and expense of continued litigation; 3. the amount of opposition to the settlement; 4. the presence of collusion in gaining a settlement; 5. the opinion of competent counsel regarding the reasonableness of
the settlement; and 6. the stage of the proceedings and the amount of discovery
completed. See GE Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1082 (7th Cir. 1997); Donovan v. Estate of Fitzsimmons, 778 F.2d 298, 308 (7th Cir. 1985); In re Mexico Money Transfer Litigation, 164 F. Supp. 2d 1002, 1014 (N.D. Ill. 2000).
As set forth in the following sections, this six-part analysis leads to the conclusion that the Decree is fair, reasonable and adequate, and should therefore be approved.
B. Plaintiffs Have Negotiated a Settlement that Reflects the Strength of Their Case Plaintiffs have put together a strong case that defendants are violating the law. On the strength of that case, the plaintiffs negotiated an excellent settlement – one that achieves all of the important goals of the litigation. Indeed, class counsel is not aware of a single objection arguing that the Decree offers an inadequate remedy for the violations of law challenged in this lawsuit. The Decree fairly, reasonably and adequately affords relief to all class members. The essence of plaintiffs’ complaint is that all IMD residents with mental illness must be provided
8

Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 15 of 42 PageID #:6457
opportunities to make meaningful, informed choices regarding where they live, and that defendants must ensure that supports and services are available in integrated, non-institutional settings. The Decree gives each and every class member the option of undergoing an evaluation to determine what supports and services they need to live in a community-based setting, and it requires defendants to provide community-based services for those eligible class members who choose to move out of an IMD. (Decree ¶¶ 6(a), 7(b), 9(b)). Accordingly, the Decree addresses and achieves the goals of the litigation. Additionally, the Decree provides explicit, detailed provisions regarding the means by which such relief will be granted.
A detailed description of key provisions of the Decree was set forth in the Memorandum in Support of Joint Motion for Preliminary Approval of the Consent Decree and Approval of Notice Plan (Dkt. No. 239), and a summary description of some key provisions and features of the Decree follows. The Decree requires defendants to provide meaningful choices and opportunities for people with mental illness. Within two years after finalization of the Implementation Plan, every class member will be given the option of receiving an independent, professionally appropriate and person-centered evaluation of his or her preferences, strengths and needs with respect to living in a community-based setting. For each class member who is deemed appropriate for and is not opposed to moving to a community-based setting, defendants will be required to develop an individualized service plan setting forth the needs and preferences of the class member, the services the class member will need to transition to the community, and a timetable for that transition. The service plans will be developed by qualified professionals and will include input from appropriate people of the class member’s choosing, including family members and treatment providers.
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Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 16 of 42 PageID #:6458
Within five years, all persons residing in IMDs who may handle and benefit from, and who choose placement in, a community-based setting will transition to such settings consistent with their service plans. The Decree requires defendants to develop 256 units of Permanent Supportive Housing in the first year of implementation and a total of 640 units by the end of the second year. This ensures that a material number of class members will be afforded relief quickly, while giving defendants adequate time to expand the community system to meet the needs of class members. Importantly, nothing in the Decree prevents those persons who oppose placement in a community-based setting from continuing to reside in an IMD.4
The Decree vindicates the rights asserted in the litigation and, therefore, reasonably reflects the merits of plaintiffs’ case.
C. A Trial would be Complex, Long and Expensive If the proposed Decree is not approved, expensive and protracted litigation will ensue. No objection contests this point, nor has anyone suggested that it was premature to settle the lawsuit. Any trial will be complex, contentious and cumbersome. See e.g., DAI, 653 F. Supp. 2d at 187–88 (similar case involving individuals with mental illness residing in adult homes in New York resulted in a five-week bench trial). Collectively, the parties would likely call over thirty witnesses, including at least five expert witnesses who reside outside Illinois, and several State employees who reside in Springfield, Illinois. The costs and expenses of preparing these witnesses, and for trial in general, would be enormous. In addition, both plaintiffs and
4 The Consent Decree provides class members with relief much like what they would likely obtain if they prevailed at trial. In the analogous DAI case discussed above, the District Court for the Eastern District of New York recently ordered the state of New York to provide thousands of residents of Adult Homes with the opportunity to live in community-based settings. Disability Advocates, Inc., No. 03-CV-3209 (NGG), slip op. (E.D.N.Y. March 1, 2010). The Adult Homes at issue in DAI are very similar to IMDs, and plaintiffs believe that the likely outcome of a trial in this case would be substantially similar to the result in DAI.
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Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 17 of 42 PageID #:6459
defendants submit that if they do not prevail at trial, they would likely appeal the matter to the Court of Appeals, which could extend the litigation even further. One of the primary benefits of the Decree is that it provides reasonably prompt relief to the class, without these additional expenditures of time and money. Many class members already have been waiting an extremely long time to move into the community. These factors strongly weigh in favor of approval of the Decree.
D. Many of the Comments Submitted to the Court Support the Decree’s Fairness, Reasonableness and Adequacy, and the Remaining Objections Reflect a Misunderstanding of the Decree
1) Overview of Comments and Objections As of August 21, 2010, class members and their guardians have submitted approximately 1154 comments and objections to this Court.5 Non-parties, such as relatives and friends of residents, have submitted 649 comments and objections.6 Approximately 1034 of the submissions by class members and their guardians were on forms provided by the IMDs obtained pursuant to their campaign to mislead and frighten people into opposing the Decree. (See Dkt. No. 285 (7/27/10 Order) (“Order”) at 10). These comments and objections are addressed below.
A. Comments Not on IMD Forms
5 Paralegals working with plaintiffs’ counsel have reviewed every comment or objection that has been filed with the Court as of August 20, 2010, and have attempted to eliminate any duplicate submissions to ensure an accurate tally in the attached Exhibit 4. Exhibit 4 includes a breakdown by parties and nonparties, and a further breakdown by IMD form versus non-form comments or objections. 6 Non-class members who are not legal guardians do not have standing to object to the settlement. See, e.g., Agretti v. ANR Freight Sys., Inc., 982 F.2d 242, 246–47 (7th Cir. 1992) (non-party lacks standing to object to settlement agreement absent a showing of “plain legal prejudice”).
11

Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 18 of 42 PageID #:6460
Almost all of class members’ comments that were not submitted on the IMD forms express support for the proposed settlement. The following examples illustrate residents’ desire to live more independently.7
• “I have lived at Clayton House for about 12 years…If I lived in the community I could do a lot of things I can’t do here. It’s like living in prison here. I could choose what to eat for breakfast. I could make my own meals, go to the grocery store, take my medication…I would like to just live a normal life. I had my own apartment for 11 years.” (Dkt. No. 296-1 (Letter from Linda Warren) at 66);
• “I support the settlement because I think I could live on my own or with a few other people. I would try to get a job. I would cook on my own so I can eat things I want to eat. I would be able to do my own laundry the way I want to do it. The process of getting out of here is harder than getting in here.” (Dkt. No. 296-1 (Letter from Alan E. Prisco) at 70);
• “I’ve lived at Greenwood Care for 12 years and when I asked about leaving they told me I don’t have enough money…It is a very stressful situation. I am very sick of it here. The public address speakers are blaring and very loud. It seems like they’re scrutinizing my every movement. There’s not much privacy.” (Dkt. No. 296-2 (Letter from Art Levin) at 4);
• “I am a resident at Greenwood Care and have been here almost eight years. I don’t have privacy. I share a room with two other girls and sometimes we get along and
7 Class counsel made presentations about the proposed consent decree at all 25 IMDs during the month of July and revisited many of the IMDs in August in an effort to allay the fears generated among residents by the IMDs’ misinformation campaign. Most of these statements were collected by counsel on these visits. Counsel who transcribed statements made every effort accurately to reflect the views of the class members.
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sometimes we don’t. I did not choose my roommates. You have to wait in line for breakfast, lunch and dinner. Then you have to wait in line to get your medication. Then you share the same shower room as the men.” (Dkt. No. 296-2 (Letter from Judy Krown) at 7); • “I’m 32 years old. It doesn’t make you feel right to live at a nursing home. I want to live at my own place. They might say they have a lot of programs but they really don’t. If you’re out by yourself you’ll be more active, have more freedom. When you want to do something you do it…I think I would be healthier living on my own. I want to make my house my own way, not the way someone else wants it.” (Dkt. No. 296-2 (Letter from Juan Manual Orozco) at 9); • “I am a resident at Margaret Manor North and have been here 12 years…I want a place to call my own, where I can have my own thoughts. I know I can live independently because I lived independently and owned my own business before I got here.” (Dkt. No. 296-2 (Letter from Rinnam Wiggins) at 28). See also Dkt. No. 296-3 (Letter from Fred Friedman) at 9-13 (former resident describing life in an IMD and expressing support for the Decree). The Office of the Illinois State Guardian also submitted comments supporting the Decree on behalf of more than one hundred state wards now housed in IMDs. (See Dkt. No. 296-3 at 21 (“[V]ery few community placement opportunities have been available to our wards with mental illness who wish to move into community based settings. By default, many of our wards with mental illnesses were faced with few meaningful alternatives other than IMDs, despite efforts by their guardians to advocate for more individualized service options.”)). In addition, a number of consumer and advocacy organizations endorse the Decree. (See e.g., Dkt. No. 296-3 (Statement
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Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 20 of 42 PageID #:6462
of Anthony Zipple, CEO of Thresholds, provider of support services for individuals with mental illness) at 2-8; (Letter from six members of the Illinois General Assembly) at 15, 16; (Letter from Anthony Kopera, President and CEO of Community Counseling Centers of Chicago) at 17, 18; (Letter from Lora Thomas, Executive Director of National Alliance on Mental Illness (NAMI) Illinois) at 19, 20; (Letter from Joel Rubin, Executive Director of the National Association of Social Workers, Illinois Chapter (N A S W) at 23-25; (Letter from Summit Facilitator, Mental Health Summit) at 26-28; (Letter from Mark Heyrman, Chair, Public Policy Committee, Mental Health America of Illinois) at 29, 30; (Letter from Janet Hasz, Executive Director, Supportive Housing Providers Association) at 31, 32; and (Letter from J. Srinivasaraghavan, President, Illinois Psychiatric Society) at 33, 34).
B. Comments and Objections on IMD Forms The form objections and other comments submitted by class members on the forms provided by the IMDs reflect the inappropriate tactics they employed. Several class members who had signed form objections later submitted comments supporting the Decree after they received more accurate information about its contents. (See, e.g., Dkt. No. 296-2 (Letter from David Daugherty) at 20; (Letter from Ann Wakey) at 43.) Many objections paraphrase or simply quote the misleading statements in the so-called IMD Fact Sheets distributed by the IMDs. (See, e.g., Dkt. No. 296-22 (Objection Form of Kim Henriksen, guardian of Abbott House resident) at 12-13); Dkt. No. 296-28 (Objection Form of Willa M. Huffman) at 48). Others reflect IMD staff members’ efforts to encourage objections and to reward class members who cooperate. (See, e.g., Dkt. No. 296-16 (Letter from Barbara Hopmayer) at 26 (positive comments apparently from staff member in the margin of resident’s “support letter” suggesting that the resident was encouraged by staff to write an objection);
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Declaration of Cesar Vera (attached as Exhibit 5) (stating that IMD staff at Sacred Heart offered residents cigarettes to sign objections to the settlement)). In some instances, it appears that class members were frightened or simply coerced into signing objections. (See, e.g., Dkt. No. 296-2 (Email from Pete Peng) at 37) (citing fear of retaliation by staff members for expressing support of the settlement)).
The objections reveal little real opposition to what the Decree actually says. In fact, hundreds contain no explanation at all of the reason for the objection. (See Group Exhibit G, Dkt. Nos. 296-8 – 296-10). These “blank” objections should be given little, if any, consideration. See Gaddis v. Campbell, 301 F. Supp. 2d 1310, 1314 n. 3 (M.D. Ala. 2004) (court treated blank forms that did not state any basis for objection as just one objection); Austin v. Hopper, 28 F. Supp. 2d 1231, 1236-37 (M.D. Ala. 1998) (grouping into a single category "objections" that were blank or expressed approval or did not object to the settlement).
The forms that include some explanation in many instances tacitly support the Decree by suggesting, for example, that although the resident signing the form may want to remain, he or she supports the right of others to move out if they choose and may want that option for himself or herself in the future. (See, e.g., Dkt. No. 296-20 (Objection Form of Mattie McGuire) at 2 (“I believe that [these] residents should have the right to choose were [sic] they live…); (Objection Form of Venancio Rodenas) at 19 (“I’m getting better now and I’d like to eventually be discharged and move to my own place…”); Dkt. No. 296-19 (Objection Form of Roosevelt Wallace) at 127; (Objection Form of James B. Johnson) at 56; (Objection Form of Tanya Glass) at 37).
The remaining objections from class members manifest a misunderstanding of the Decree. Most of them express fears that the Decree will force residents into homelessness or
15

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order that IMDs be closed. (See, e.g., Dkt. No. 296-18 (Objection Form of Erika W. Flores) at 39; (Objection Form of Henry Hughes.) at 61-62; (Objection Form of Lisa Gruzlewski) at 67-68; (Objection Form of John Wollschlager) at 72-73; (Objection Form of Steven Goldfine) at 78). Some of them poignantly describe a class member’s painful experiences living independently, often without access to essential services and supports. (See e.g., Dkt. No. 296-22 (Objection Form of Jon Kalscheur) at 8-9; Dkt. No. 296-5 (Letter from Connie Dillman) at 5). These objections reflect a misunderstanding of the Decree’s terms, which provide a choice to eligible class members but do not require anyone to move out of an IMD or even to consent to an evaluation. For those who choose to move, the Decree also requires defendants to provide the services delineated in each individual’s service plan. For those who do not choose to move, the Decree does not mandate the closure of a single IMD. (See Order at 8-9; Decree ¶¶ 7(b), 8).
As this Court found, the IMDs provided residents with notices which “expressly exhort residents and their families to object to the settlement.” (Order at 7). This Court found that the IMD notices “appeal to residents’ and family members’ fears by overstating, as a foregone conclusion, the possibility that approval of the Settlement would result in IMDs being closed and residents being out on the street with no provision for food, medicine and shelter.” (Id. at 8). It is not surprising that most of the forms from family members object to the closing of the IMDs, not to the terms of the Decree. (See, e.g., Dkt. No. 296-25 (Objection Form of Kathy Christopher) at 4 (“I feel that Janice will choose to become homeless, if her (sic) or all intermediate care facilities are suddenly closed….”); Dkt. No. 296-26 (Objection Form of Jacquelyn McDonald) at 15 (“I believe that the closing of Central Plaza would cause my Uncle, Dennis Gates, unnecessary stress. He would be forced to be responsible for his own care, medication, rent & other bills.”). Many are not objections at all but merely express praise for the
16

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IMD where their family member resides and opposition to placement in the community for their loved one. (See, e.g., Dkt. No. 296-24 (Objection Form of Kenneth Runmore) at 10 (“Please let my Brother Ross continue to receive the care at Abbot House that he so desperately needs.”); (Objection Form of Grace Shaw) at 12 (“Finding Abbott House was truly an answered prayer. It is unlike any other facility we had visited.”); (Objection Form of Teresa Fischer) at 33-34 (“I have been fortunate, as has been my brother to find Abbott House…Other IMDs and group homes are not situated in such a safe and pleasant setting.”). The Court should consider the misrepresentations in the IMD notices in weighing the objections on the IMD forms and grant them little, if any weight.
What the objections do not say is more telling than what they do say. Class counsel is unaware of a single objection arguing that class members who can and would like to live in a community-based setting should be denied that option. Those objections stating that a particular class member will never be able to function outside of an institutional setting still do not seek to limit the options of others with different capacities and aspirations.
Even if some objecting class members who want to stay in IMDs had advocated denying others the opportunity to leave – which they do not – the case law would not support them. Imasuen v. Moyer, 1992 U.S. Dist. LEXIS 1449, *4 (N.D. Ill. Feb. 7, 1992) (“[T]he fact that some class members may be satisfied with an unconstitutional system and would prefer to leave violations of their rights unremedied is not dispositive under Rule 23(a).”); Wyatt v. Poundstone, 169 F.R.D. 155, 161 (M.D. Ala. 1995) (denying class certification where some institutional residents opposed community placement “would, in effect, preclude the use of the class action device in many of the very cases where it could be the most advantageous”); Waters v. Berry, 711 F. Supp. 1125, 1131-32 (D.D.C. 1989); Lanner v. Wimmer, 662 F.2d 1349, 1357 (10th Cir.
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1981); Wilder v. Bernstein, 499 F. Supp. 980, 993-94 (S.D.N.Y. 1980). Plaintiffs’ experts concluded that a substantial majority of class members would like to live in community-based settings and are able to do so with appropriate supports and services. (Yale Report at 18-23; E. Jones Report at 6-9.) These individuals are entitled to relief from unnecessary institutionalization.
In addition, the mere fact that class members filed a large number of objections does not resolve the issue of whether a settlement is fair, adequate and reasonable. Armstrong v. Board of School Directors, 616 F.2d 305, 326 (7th Cir. 1980). Courts routinely approve settlements over the objections of significant numbers of class members. See, e.g., EEOC v. Hiram Walker & Sons, Inc., No. 83-1024, 1984 WL 48941 (C.D. Ill. Jan. 26, 1984), aff’d 768 F.2d 884 (7th Cir. 1985) (concluding that the substantial risks of litigation and the time and expense a long trial would require justified approving settlement, despite the fact that fifteen percent of the original charging parties objected); League of Martin v. City of Milwaukee, 588 F. Supp. 1004, 1022-23 (E.D. Wis. 1984) (approving settlement over objections of 108 out of approximately 200 class members); Armstrong v. Board of School Directors of City of Milwaukee, 471 F. Supp. 800, 805 (E.D. Wis. 1979), aff’d, 616 F.2d 305 (7th Cir. 1980) (approving proposed settlement agreement despite the fact that only eight to ten of forty-five class members who appeared at fairness hearing supported the settlement and numerous others sent letters opposing the agreement); see also Reed v. General Motors Corp., 703 F.2d 170, 174-75 (5th Cir. 1983) (approving settlement over objections of more than 600 of 1,469 class members and twenty-three of twenty-seven named plaintiffs); Ragsdale v. Turnock, 734 F. Supp. 1457, 1459 (N.D. Ill. 1990), aff’d, 941 F.2d 501 (7th Cir. 1991), cert. denied, Murphy v. Ragsdale, 502 U.S. 1035 (1992) (approving
18

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settlement despite hundreds of telephone calls and 1,266 letters from plaintiff and defendant
class members objecting to settlement).
2) This Court Should Reject the Objectors’ and IMDs’ Attacks on the Proposed Consent Decree.
Counsel for approximately thirty class members and relatives filed a lengthy Memorandum supporting their objections.8 (Dkt. No. 303 (“Objectors’ Memorandum”)).
Counsel for several IMDs also filed a Memorandum containing similar objections to the proposed settlement.9 (Dkt. No. 295 (“IMD Memorandum”)). Neither Memorandum argues that
this Court should reject the Decree in its entirety. Instead, they present a jumble of overlapping
objections that trivialize the rights of people with disabilities, misstate the terms of the Decree,
and impose unworkable burdens on the parties.
The IMDs’ and the Objectors’ arguments start by minimizing the class members’ civil
rights. The Objectors’ Memorandum criticizes the parties for treating this as a “civil rights case”
when “[t]he medical issues – not the civil rights issues – are the most important issues.”
Objectors’ Memorandum at 24. The IMDs, similarly, criticize the parties for emphasizing that IMD residents are people with rights under the ADA. IMD Memorandum at 1.10
8 For all of the reasons stated in Plaintiffs’ Motion to Strike Expert Reports Submitted by Absent Class Members and Family Members (Dkt. No. 306), plaintiffs believe this Court should give no weight to the three expert statements that were submitted as exhibits to Objectors’ Memorandum. If this Court intends to rely on any of the opinions in those reports in determining the fairness of the settlement agreement, plaintiffs are entitled to cross examine the purported experts. See United States v. Tenn., Nos. 03-6389, 03-6628, 2005 WL 1506480 at *4-6 (6th. Cir. June, 23, 2005) (upholding parties’ due process right to challenge opinions of objectors’ experts). 9 The IMDs are not parties to this action and have no standing to object. See, e.g., Agretti v. ANR Freight Sys., Inc., 982 F.2d 242, 246–47 (7th Cir. 1992) (non-party lacks standing to object to settlement agreement absent a showing of “plain legal prejudice”). 10 Residents of IMDs often experience inadequate medical care and medication management. See, e.g., Illinois Department of Public Health, Complaint Investigation of Bayside Terrace, Form CMS 2567(0299) at 2 (April 28, 2008), http://www.idph.state.il.us/ltc/docs/SurveyResult/6000764FA04282008.pdf
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The notion that people with serious mental health needs do not have the same civil rights as other citizens, and that as a result they must spend their lives confined in large institutions for their protection, is flatly contrary to federal law and medical practice. The ADA condemns the shameful history of isolating and segregating people with disabilities, including those that require ongoing medical treatment. See 42 U.S.C. § 12101(2) (1991) (finding that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.”); see also Olmstead, 527 U.S. at 600 (“[I]nstitutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.”). Plaintiffs’ expert Dennis Jones confirmed that “[t]he national standard of care today is for persons with serious mental illness to live in integrated community settings with the supports necessary for them to succeed.” (D. Jones report at 15; see also Yale Report at 5–6 (describing current standard practice in mental health field as consumer and recovery centered with an emphasis on community integration)).

(reporting on the death of a 66-year-old resident due to the IMDs’ failure to follow resident’s care plan);

Illinois Department of Public Health, Complaint Investigation Recertification State Licensure of Abbot

House,

Form

CMS

2567(02-99)

at

2

(October

18,

2007),

http://www.idph.state.il.us/ltc/docs/SurveyResult/6000038FAIK10182007.pdf (observing multiple

laceration marks on both of a resident’s arms and no care plan addressing his history of suicidal attempts);

Illinois Department of Public Health, Recertification of Albany Care, Form CMS 2567 (02-99) at 2

(December 14, 2006), http://www.idph.state.il.us/ltc/docs/SurveyResult/6007959FI12142006.pdf (failure

to address resident’s drug use and behavioral issues); Illinois Department of Public Health, Recertification

State Licensure of Greenwood Care, Form CMS 256L at 11 (November 20, 2003),

http://www.idph.state.il.us/ltc/docs/SurveyResult/6000202FIK11202003.PDF (finding that medications

were provided to residents without a care plan to address the effectiveness and side effects of the

medications); Illinois Department of Health, Recertification Complaint Investigation of Albany Care,

Form

CMS

2567(02-99)

at

5

(October

17,

2008),

http://www.idph.state.il.us/ltc/docs/SurveyResult/6007959FIA10172008.pdf (facility failed to obtain

consent of residents for medication changes).

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The Objectors and IMDs mount a series of attacks on the Decree based largely on these paternalistic and outdated views.
a) The Decree is sufficiently clear and detailed The Objectors and IMDs claim that the Decree is not sufficiently detailed. They argue that the Implementation Plan should be developed now so that class members will know how their needs will be met if they choose to leave IMDs and how the State will pay for those services. They add that the Decree should require that the Implementation Plan be filed with and approved by the Court. (Compare Decree ¶¶ 11, 12 with Objectors’ Memorandum at 14-15; IMD Memorandum at 7). The Decree provides that the Court will resolve any disagreements regarding the Implementation Plan or compliance with the Decree. (Decree ¶ 12). To the extent the Decree does not make clear that the parties will file the Implementation Plan with the Court and seek the Court’s approval even if they agree on its terms, the parties are willing to amend the language of the Decree to specify those steps. The parties have every expectation that the Court will remain involved as necessary throughout this process.11 The Objectors’ argument that approval of the Decree should be delayed until every detail of the Implementation Plan is completed ignores the fact that the Decree already includes much more than a court order likely would have if plaintiffs prevailed at trial. Due to principles of federalism and comity, the usual course in institutional reform cases is to permit state government defendants to submit a proposed plan providing details about how they would remedy their unlawful conduct. The court in DAI adopted this approach, 653 F. Supp. 2d at 312, 11 Of course, the Court may determine the extent to which non-parties may be involved in issues related to the Implementation Plan, but there is no need to mandate such involvement at this stage of the proceedings.
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reasoning that “the court must give appropriate consideration to principles of federalism, as ‘remedies that intrude unnecessarily on a state’s governance of its own affairs should be avoided.’ Unnecessarily detailed remedial orders may needlessly inject federal courts into the business of ‘regulating a state’s administration of its own facilities.’” Id. at 312 (citations omitted). Other cases are in agreement. See, e.g., Lewis v. Casey, 518 U.S. 343, 362 (1996) (“[T]he strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors . . . also require giving the States the first opportunity to correct the errors made in the internal administration of their prisons.”); Memisovski v. Maram, No. 92-CV-1982, slip op. (N.D. Ill. Sept. 14, 2004) (ordering state officials to submit proposed remedial plan following finding that they violated federal law) (attached as Exhibit 2 to Dkt. No. 256). As a practical matter, Defendants are in the best position to figure out the details of implementation without unnecessary court micromanagement at this juncture, as “courts are ill-equipped ‘for formulation and day-to-day administration of detailed plans’ to assure compliance with the law.” DAI, 653 F. Supp. 2d at 312 (citation omitted). The Decree makes clear, however, that the court-appointed Monitor and class counsel will have an active role in developing the Implementation Plan and are authorized to bring any problems to the Court’s attention. (Decree ¶¶ 11-12).
Notably, the order granting injunctive relief in DAI covers roughly the same categories that the Decree covers, but it does so in just eleven pages with much less detail. (Compare Decree with DAI, No. 03-CV-3209 (NGG), slip op. (E.D.N.Y. March 1, 2010)). For example, the Decree devotes six subparagraphs to service plans, describing what they must contain, who will develop them, their focus and timing, Decree ¶ 7, while the DAI order simply provides that the state must arrange for providers of community-based services to identify “the services each
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eligible individual needs to successfully transition to and live in supported housing and arrange for the individual to timely receive those services.” DAI, No. 03-CV-3209 (NGG), slip op. ¶ 6(g) (E.D.N.Y. March 1, 2010).12
The Decree ensures that every IMD resident who is capable of and chooses to live in the community will receive the services and supports he or she needs. (Decree at ¶¶ 5, 6(a), 7(b), 9(b)). Nevertheless, the Objectors and IMDs ask the Court to delay approval of the Decree until each class member knows each specific service he or she will receive. (Objectors’ Memorandum at 14; IMD Memorandum at 2, 7). The menu of services and supports that will be offered are described in detail in the specific regulations incorporated by reference in the Decree. (Decree at ¶¶ 4(ii), 4(x)) (citing 59 Ill. Adm. Code Part 132 (Medicaid Community Mental Health Services Program) (including provision of services such as medication administration, monitoring, and training; therapy/counseling; community support; assertive community treatment; and psychosocial rehabilitation, among others) and 42 U.S.C. §§ 1396a-1396t (describing contents of Medicaid State Plan)). Deciding which of the available services will be offered to individual class members requires individual evaluations to determine each class member’s needs and preferences, a process that will take two years. (Decree ¶ 6(a)). The Decree amply describes the framework for those decisions. To wait for the determination of every option that will be offered to every class member is unnecessary and unworkable.
12 The level of detail Objectors seek is far more than would even been appropriate for the Implementation Plan, much less a consent decree. Questions such as how residents will get their medications and who will check in on them will be answered on an individual basis in each class member’s service plan (the general contents of which the Decree clearly spells out). Similarly, how rent will be handled will depend on the type of setting the class member is transitioned to, which will be determined on a case-by-case basis. Other questions regarding who will conduct the evaluations and draft the service plans are answered in the Decree. (See Decree ¶¶ 6(b), 7(c)).
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The IMDs also argue that the parties should specify “how the State will pay for [class members’] care.” IMD Memorandum at 1. The IMDs ignore the fact that funding for residents’ care will follow the resident wherever the resident decides to live. Determining where class members will live under the Decree depends on their evaluations and the choices they make. If more of them choose to live in the community, more funding will be made available to meet their needs, and the State will need to fund fewer beds in IMDs. Each person who chooses to move into the community will save the state money, in part because of an increased opportunity to recover federal Medicaid funds. (D. Jones Report at 17-19). Out of respect for principles of federalism and comity, the Decree wisely avoids dictating every detail of how defendants will fund its implementation. See United States v. Bd. of Educ. of the City of Chicago, 717 F.2d 378, 385 (7th Cir. 1983) (vacating portion of order mandating specific remedies for noncompliance with consent decree, including requirement that the Executive Branch designate specific funds, stating that “the district court should provide the Department an opportunity to fashion its proposed remedy for past noncompliance, as well as a chance to show that it intends to comply in the future, before structuring detailed remedial action that may still be necessary”).
There is no question, however, that this Court has the authority to enforce the Decree once it is approved, including its requirement that the State ensure the availability of all necessary supports and services. (Decree ¶ 5; see Frew v. Hawkins, 540 U.S. 431, 440 (2004) (“Federal courts are not reduced to approving consent decrees and hoping for compliance. Once entered, a consent decree may be enforced.”); Wisconsin Hospital Ass’n. v. Reivitz, 820 F. 2d 863, 868 (7th Cir. 1987) (“Against a state that violates a valid court decree the court has the power to issue any order necessary to enforce the decree, including an order to pay.”)).
b) The class definition is sufficiently clear
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The Objectors’ assert that the class definition is “problematic,” because it is limited to IMD residents who “’with appropriate supports and services may be able to live in an integrated community setting.’” (Objectors’ Memorandum at 12). This class definition is similar to those courts have approved in similar cases. See, e.g., Colbert v. Blagojevich, No. 07 C 4737, 2008 WL 4442597, at *10 (N.D. Ill. Sept. 29, 2008) (certifying class of “all Medicaid-eligible adults with disabilities in Cook County, Illinois, who are being, or may in the future be, unnecessarily confined to nursing facilities and who, with appropriate supports and services, may be able to live in a community setting”). The class definition includes virtually every resident of IMDs, because everything provided in an IMD – including medication management, group and individual therapy, housing, food, even the presence of staff 24 hours a day when necessary – can be provided in a community-based setting. (See Dkt. No. 296-3 (Letter from Anthony M. Zipple) at 3-4 (describing comprehensive range of community rehabilitation services provided by community mental health service provider Thresholds); see generally 59 Ill. Adm. Code Part 132 (describing community-based services)). Every IMD resident will be offered an individualized evaluation conducted by a qualified professional to determine under what circumstances he or she can live safely in a community-based setting. Once IMD residents have received those evaluations, there will be no question about whether a particular IMD resident is someone who meets the class definition.
In any event, this argument is a distinction without a difference. If the Court believes it would clarify the class definition, plaintiffs would not object to a definition that would include all adults in Illinois who have a mental illness and are institutionalized in a privately owned IMD, omitting the additional requirement limiting the class to individuals who may be able to live in a community-based setting.
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c) Class members should be offered the opportunity to leave the IMDs unless they oppose moving to a community-based setting
The Objectors propose that the Decree require class members to “opt in” to have the opportunity to live in a community-based setting. (Objectors’ Memorandum at 15-17). If they express no opinion or cannot make up their minds, the Objectors apparently would leave them institutionalized indefinitely, even if they could function well in a more integrated setting. This approach may benefit the IMDs’ profits, but it conflicts with common sense and the approach of the Supreme Court. See Olmstead, 527 U.S. at 607 (holding that under Title II of the ADA, states are required to provide community-based treatment for people with mental illness when the state’s treatment professionals determine that such placement is appropriate, the affected people “do not oppose” such treatment and the placement can be reasonably accommodated).
d) The Decree provides for competent evaluations by qualified professionals
The Objectors raise two concerns about the evaluation process described in the Decree. First, they argue that the evaluations should be conducted by people who have no relationship with the non-profit, community-based agencies that actually provide supportive housing and other community-based services and settings. (Objectors’ Memorandum at 18-19). Second, they argue that individuals should be required in every case to consult family members and IMD psychiatrists no matter how little those people know the resident. (See id. at 17-18). Neither of these proposals is a good idea.
The Decree requires that evaluations be conducted by professionally qualified individuals who are independent of the IMDs and are employed by the pre-admission screening agencies that now approve applicants for admission to IMDs. See Decree ¶ 4(viii), (xix). Plaintiffs are not aware of any complaints the IMDs and their allies made in the past about the competence of those agencies when they approved the admission of every class member into an IMD; yet they
26

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now question the agencies’ ability to make similar determinations about whether IMD residents can live elsewhere. The Decree correctly provides that pre-admission screening agencies that are familiar with community-based services are appropriate to evaluate whether class members’ needs can be met outside of the IMDs.
This Court also should reject the Objectors’ suggestion that the Decree require evaluators to consult relatives and medical personnel who may have very little contact with class members. The Decree already requires that evaluations include consultations with a class members’ psychiatrist and other IMD staff “where appropriate,” Decree ¶ 4(viii), and that they include family and friends at the class member’s request, as required by applicable laws concerning medical confidentiality. See, e.g., 410 ILCS 50/3(d). The Decree does not alter in any way the authority under state law of guardians and other legal representatives to act on behalf of IMD residents. (See, e.g., Decree ¶ 7(c)) (requiring involvement of class member’s “legal representative” in development of service plan). There is no reason to add additional requirements.
e) This Court need not expand the scope of the Decree by creating new entitlements to services or funding for people who remain in IMDs
The Objectors and IMDs ask this Court to deny approval of the Decree unless the parties agree to add various provisions guaranteeing funding and services to IMD residents. (See Objectors’ Memorandum at 20-24; IMD Memorandum at 5-6). They point to nothing in the Decree that would restrict whatever rights class members currently have to those services and funds. Instead, they suggest that, because Olmstead recognized that a state may assert a defense in a community integration case based on the state’s need to consider how it provides services to everyone with disabilities, this Court should assure the continued financial vitality of all of the IMDs. (See Objectors’ Memorandum at 20-24; IMD Memorandum at 5-6; Olmstead, 527 U.S.
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at 607).13 As this Court has already noted, “there is not presently any guarantee that Illinois will fund IMDs. If an IMD closes, residents would have the same procedural rights as they presently have.” (Order at 9).
Moreover, this case is about the unnecessary segregation of people in IMDs. It is not about whether people who want to stay in IMDs should have access to additional services or whether the IMDs should be financially secure. Nothing in the Decree alters whatever rights people may have to IMD funding or services. See id. The Decree focuses on remedying the problem that gave rise to this case – the fact that people in IMDs do not have a choice, where appropriate, to live in a more integrated setting – not the countless other problems people may have in IMDs. Because the Decree will save the State money there will be more funds available to meet the needs of people with disabilities and others who depend on state services. (See, e.g., D. Jones Report at 17-19 (community-based settings are “significantly less costly to the State than serving individuals in IMDs” and savings are even greater when considering costs for ancillary services; these savings are due, in part, to the fact that the State is not eligible for a federal Medicaid match for the money it spends on most IMD residents, while federal matching funds are available when individuals are served in the community); NHSTF Final Report at 16 (“The state can realize significant savings when those residents transition to community settings.”); DAI, 653 F. Supp. 2d at 285 (district court found it less expensive for New York to
13 Objectors inappropriately rely on circumstances where state institutions have been required to continue to fund the infrastructure that keeps the institution open to suggest that the State will have to operate a dual system during the term of the Decree. Objectors’ Memorandum at 22-23. The State pays the IMDs on a per bed per day basis, and while defendants’ counsel may be correct that there will be some additional costs at the beginning of the transition, overall moving people out of institutions and into the community will save the State money. (See D. Jones Report at 17-19).
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serve people in the community than in institutional settings)).14 The Objectors cannot reasonably expect more than that.
The financial future of the IMDs under the Decree will be determined by the choices of class members. The Decree does not and should not require Illinois to pay for IMD beds that class members have chosen to leave. If very few class members choose to leave the most popular IMDs under the Decree, residents of those IMDs will be in substantially the same position they are in now. The State has long demonstrated a commitment to maintain funding in such circumstances. If many residents choose to leave other IMDs – which plaintiffs believe is likely in light of the inadequate conditions and services many of them offer15 – some facilities

14 The Decree would ensure for the first time that residents who are discharged from an IMD, including residents of an IMD that closes, will be offered appropriate housing. Decree ¶ 15. This provision was included in part as a response to the State’s problems finding appropriate alternatives when a large IMD, Somerset, closed after its license was revoked. Plaintiffs disagree with the Objectors’ assumption that housing was chosen for people leaving Somerset based on anything other than an urgent need to find a bed. (See Objectors’ Memorandum at 9).

15 The underlying assumption inherent in this argument – that IMDs are safe and provide high quality

services to residents – is belied by the many official reports of neglect, abuse and unhealthy conditions in

IMDs. See, e.g., Illinois Department of Public Health, Complaint Investigation of Rainbow Beach Care

Center,

Form

CMS-2567(02-99)

at

1

(July

31,

2008),

http://www.idph.state.il.us/ltc/docs/SurveyResult/6008734FA07312008.pdf (detailing fire safety

concerns); Illinois Department of Public Health, Annual Licensure and Certification Survey of Wincrest

Nursing Center Corp., Form CMS-2567(02-99) at 6 (October 16, 2008),

http://www.idph.state.il.us/ltc/docs/SurveyResult/6010060FIK10162008.pdf (detailing violations of

living space requirements); Illinois Department of Public Health, Annual Licensure and Recertification of

Columbus Manor Residential Care Home, Form CMS-2567(02-99) at 1 (April 24, 2009),

http://www.idph.state.il.us/ltc/docs/SurveyResult/6001994FIA04242009.pdf, (detailing abuse of resident,

lack of mental health assessment and appropriate services for resident, and lack of a discharge plan for

resident); Illinois Department of Public Health, Annual Licensure and Certification Survey of Wincrest

Nursing Center Corp., Form CMS-2567(02-99) at 7 (October 16, 2008),

http://www.idph.state.il.us/ltc/docs/SurveyResult/6010060FIK10162008.pdf (detailing failure of IMD to

properly monitor the blood sugar of several residents). Moreover, plaintiffs’ expert, Elizabeth Jones,

observed conditions that led her to conclude “it is my strong observation that the IMDs are not ‘safe

havens’ for people with serious mental illness.” (Report of Elizabeth Jones at 6). Her observations

include filthy clothing and lack of shoes for residents, residents who appeared groggy and detached,

deafening noise that made it difficult to hear, speak or think, and overall, a chaotic environment with

“crowding, noise, lack of private space, poor supervision and lack of meaningful activities [that] create

emotional stress and physical discomfort for the residents.” Id.

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may not survive and others probably will be consolidated. That would be the result of class members’ choices, not this Court’s mandates.16 Inadequate IMDs do not have a right to continue to make profits if their prosperity rests only on the fact that people with mental illness who could and want to receive the services they need in a more integrated setting are denied that choice in violation of federal law.
f) Plaintiffs are entitled to attorneys’ fees The misleading IMD materials encouraged Objectors to criticize the fact that the Decree awards plaintiffs compensation for their reasonable expenses and some of their attorneys’ fees. Many of the form objections echoed this theme. (See, e.g., Dkt. No. 296-24 (Objection Form of Jordan Sims) at 46; (Objection Form of William Scheurer) at 64; (Objection Form of Irene Lilienheim Angelico) at 69). The IMDs now make passing mention of this issue as part of the discussion of broader financial concerns. (See IMD Memorandum at 5). The law and facts are undisputed. First, if the Decree is approved, plaintiffs would be entitled to an award of attorneys’ fees and costs pursuant to applicable statues. See 42 U.S.C. § 12205 (“any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs”); 29 U.S.C. § 794a(b) (similar); 42 U.S.C. § 1988 (similar); Fed. R. Civ. P. 54(d).17 Second, the agreed award of
16 The IMDs do not argue that a class member has a right to live in a particular IMD. Even people with disabilities whose right to live in certain types of facilities is protected by a Medicaid entitlement do not have the right to live in the specific place of their choice. See Boudreau ex rel. Boudreau v. Ryan, No. 00 C 5392, 2002 WL 314794 at *5 (N.D. Ill. Feb. 28, 2002); aff’d Bruggeman v. Blagojevich, 324 F.3d 906 (7th. Cir. 2003). 17 These provisions are not limited to judgments on the merits; “settlement agreements enforced through a consent decree” like the one proposed here “may serve as the basis for an award of attorney’s fees.” See
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$1,990,000 in attorneys’ fees represents a negotiated compromise between the parties that is substantially less than 50% of the value of the legal work plaintiffs have received during five years of hotly contested litigation. That entire sum will be contributed to the organizations that provide representation to the plaintiff class, so that they can continue their work providing legal services without charge to their clients in this and other cases. Third, if this case went to trial and plaintiffs prevailed, they would almost certainly be entitled to a far larger award of attorneys’ fees and costs. Fourth, the agreed award is comparable to fees awarded in similar cases. See, e.g., K.L. v. Edgar, No. 92 C 5722, 2000 WL 1499445 (N.D. Ill. Oct. 6, 2000) (awarding the Roger Baldwin Foundation of ACLU and its pro bono counsel $1.9 million in attorneys’ fees in a class action on behalf of people with mental illness residing in state-operating institutions); Gaskin v. Pennsylvania, 389 F. Supp. 2d 628, 643 (E.D. Pa. 2005) (finding a $1.825 million fee award in consent decree was fair and reasonable where plaintiffs had actually expended over $2.6 million); Memisovski v. Maram, No. 92-C-1982, slip op. (N.D. Ill. Feb. 21, 2006) (awarding public interest organizations and their pro bono counsel $4.4 million in fees and expenses in a class action Medicaid case involving access to medical care for children) (attached as Exhibit 5 to Dkt. No. 256).
This Court should authorize the award of attorneys’ fees the parties have negotiated.18 E. The Decree Was Negotiated in Good Faith and Without Collusion As a matter of law, a court should presume that negotiations were conducted in good faith
and that the resulting agreement was reached without collusion in the absence of evidence to the
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept. of Health & Human Res., 532 U.S. 598, 604 (2001) (citation omitted). 18 If requested by the Court, plaintiffs are willing to provide specific documentation relating to the “lodestar” value of their legal work in litigating this action.
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contrary. Mars Steel v. Continental Ill. Nat’l Bank & Trust, 834 F.2d 677, 681-82 (7th Cir. 1987); Armstrong, 616 F.2d at 325; Newberg at § 11.41. Nothing supports a different result here, and no Objector has accused the parties of collusion in reaching a settlement. The parties have vigorously represented their clients throughout the pendency of the case. The parties have engaged in extensive written and deposition discovery, several contested discovery motions, as well as plaintiffs’ motion for class certification.
In addition, the proposed Decree took months to negotiate. Numerous in-person meetings and settlement conferences were conducted. Counsel for the Parties exchanged several drafts, advocating forcefully for language most advantageous to their clients. See, e.g., Maley v. Del Global Techs. Corp., 186 F.Supp. 2d 358, 366 (S.D.N.Y. 2002) (finding negotiations leading to class action settlement were arm’s-length in part because they had occurred over several months and involved several in-person meetings). Because the Decree resulted from arm’slength negotiations between experienced counsel after significant discovery had occurred, the Decree should be presumed to have been reached without collusion. See, e.g., Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir. 2005) (“presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm’s-length negotiations between experienced, capable counsel after meaningful discovery” (internal quotations omitted)).
F. Competent Counsel Support the Settlement The court is “entitled to rely heavily on the opinion of competent counsel.” Armstrong, 616 F.2d at 325. Counsel for the plaintiffs and defendants, who are competent and experienced in class action and civil rights litigation, all support approval of the Decree. The Decree provides a fair, reasonable, and adequate disposition of the lawsuit. The Decree finally allows class members a real opportunity to abandon the segregation that has been forced on thousands of
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adults with mental illness in this state. Indeed, the Decree embodies the single most important aspect of the relief sought by plaintiffs: that all class members are provided opportunities to make meaningful and informed choices to receive services in the most integrated setting appropriate to their needs.
G. The Settlement Was Reached After Comprehensive Discovery Another factor strongly supporting approval of the Decree – and about which there is no opposition from Objectors – is the extent of written, oral, fact and expert discovery which had been completed in this case before settlement was reached. Plaintiffs and defendants have thoroughly explored the factual and legal underpinnings, as well as the merits, of this case. The parties reached final agreement regarding the Decree after spending more than four years actively litigating the case. The parties have produced and reviewed hundreds of thousands of pages of documents, conducted over thirty depositions on the merits, and worked extensively with seven experts in related fields. Thus, there was a complete factual record upon which experienced class counsel could evaluate what would be a fair resolution for plaintiffs and the class. III. INTERESTED PARTIES WERE INFORMED OF THE SETTLEMENT AND HAD THE OPPORTUNITY TO VOICE THEIR OBJECTIONS The Court and parties ensured that notice of the proposed settlement was directed in a reasonable manner to all class members who would be bound by the proposal, in accordance with Rule 23(e) of the Federal Rules of Civil Procedure. The parties provided notice of the Decree pursuant to the court-approved notice plan, and interested parties were informed of the settlement and were advised of the opportunity to submit written comments and to appear at the fairness hearing. (See Notice Plan at (Dkt. No. 267, Exhibit B) and Order granting preliminary approval (Dkt. No. 267)). On June 9, 2010, the court-
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approved notice was mailed to many of the individuals and entities who care for and work with people with mental illness and to the IMDs, with instructions to distribute the notice to all IMD residents. In plain language, the notice highlighted the substantive terms and requirements of the Decree; explained the rights of class members and specified the process for making objections; identified the date, time and place for the fairness hearing; and detailed alternative means for reviewing copies of the Decree and asking questions about the terms of the Decree. Additionally, notice was published in nine newspapers across the state and posted on the websites of the Illinois Department of Human Services, Division of Mental Health, Equip for Equality, Access Living, the American Civil Liberties Union, and the Bazelon Center for Mental Health Law. Class counsel visited all 25 IMDs to make presentations to residents, their guardians and family members about the proposed Decree.
CONCLUSION Illinois’ current system of housing for people with mental illness violates federal law. The status quo simply cannot be maintained. The Decree offers all class members the option to live in the most integrated setting appropriate to their needs. While not all class members will exercise that option, the settlement offers a fair, adequate and reasonable remedy to the violations of plaintiffs’ civil rights alleged in the complaint. Accordingly, for the reasons set forth above, plaintiffs respectfully request that the Court enter an Order overruling all objections and approving the proposed Decree.

Dated: August 24, 2010

Respectfully submitted,
By: /s/ Benjamin S. Wolf____________ One of the attorneys for Plaintiffs 34

Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 41 of 42 PageID #:6483
THE ROGER BALDWIN FOUNDATION OF THE AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS Benjamin S. Wolf Lori Nicole Turner 180 North Michigan Avenue Suite 2300 Chicago, Illinois 60601 Telephone: (312) 201-9740 Facsimile: (312) 201-9760
EQUIP FOR EQUALITY Barry C. Taylor Amy F. Peterson Laura Miller John Whitcomb 20 N. Michigan, #300 Chicago, IL 60602 Telephone: (312) 341-0022 Facsimile: (312) 341-0295
ACCESS LIVING Kenneth M. Walden Edward W. Mullen, III 115 West Chicago Avenue Chicago, IL 60610 Tel: (312) 640-2100 Fax: (312) 640-2139
THE BAZELON CENTER FOR MENTAL HEALTH LAW Ira Burnim Karen Bower Steven Ney 1101 15th Street, NW Suite 1212 Washington, DC 20005 Telephone: 202-467-5730 Facsimile: 202-223-0409
KIRKLAND & ELLIS, LLP Donna M. Welch, P.C. Joseph M. Russell Angela Dickson Marston 300 North LaSalle Chicago, Illinois 60654
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Case: 1:05-cv-04673 Document #: 317 Filed: 08/27/10 Page 42 of 42 PageID #:6484 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 ATTORNEYS FOR PLAINTIFFS
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 Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 2 of 110
EVALUATION OF THE RESIDENTS OF ILLINOIS INSTITUTIONS FOR MENTAL DISEASE (IMDs)
Report Prepared For: Plaintiff Class
Williams v. Blagojevich et al Illinois
Report Prepared By: Jacob K. Tebes, Ph.D. Paul T. Amble, M.D. Madelon V. Baranoski, MSN, Ph.D.
August 1, 2008

Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 4 of 110
TABLE OF CONTENTS
INTRODUCTION .....................................................................................................................1
The Evaluation Team and Its Qualifications .......................................................................1
BACKGROUND .......................................................................................................................3
Develop and Implement an Evaluation that Adheres to Principles of Scientific Rigor.......3
Ensure that the Evaluation is Consistent with Current Standard Practice in Mental Health 3 .........................................................................................................................3
The Emergence of Family- and Consumer-Driven Services ..........................................4 Institutionalism ..............................................................................................................4 Deinstitutionalization .....................................................................................................4 Recovery-Oriented Care .................................................................................................5 Community Integration ..................................................................................................6 Supportive Housing .......................................................................................................6 Summary and Conclusions .............................................................................................7
METHOD ..................................................................................................................................7
Overview..............................................................................................................................7
Procedures............................................................................................................................7
Selecting an Appropriate Evaluation Design..................................................................7 Selecting a Random Sample of Residents for Interviews and Record Reviews.............8 Ensuring Consent, Confidentiality, and the Protection of Data......................................9 Minimizing Disruption to the Setting and for the Residents and Staff...........................9
Measures ..............................................................................................................................9
Residents’ Level of Community Integration................................................................10 Residents’ Housing Preferences, Satisfaction, and Housing Choice ..........................11 Possible Barriers to Independent Living and Community Integration ........................11
RESULTS ................................................................................................................................13
Characteristics of Residents Interviewed ..........................................................................13
Community Integration......................................................................................................14
To What Extent are Residents Physically Integrated into the Community?................14
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To What Extent are Residents Socially Integrated into the Community and the IMD? .................................................................................................................16
To What Extent are Residents Psychologically Integrated into the Community and the IMD? ................................................................................................................17
Housing Preferences, Satisfaction, and Housing Choice...................................................18
Where Would Residents Prefer to Live? ....................................................................18 What Choices about Their Housing Do Residents have in Daily Living? ................20
Assessment of Possible Barriers to Increased Independence and Community Integration ..................................................................................................................21
Residents’ Capacity for Independent Living .............................................................21 Residents’ Activities of Daily Living ........................................................................23 Residents’ Mental Status/Cognitive Functioning ......................................................23 Residents’ Level of Psychiatric Symptomatology.....................................................24 Medical Conditions that Could Limit Residents’ Independence and Community
Integration ..............................................................................................................25 Residents’ Risk to Self or Others...............................................................................25 The Extent of Transition Planning for Independent Living and Community
Integration ..............................................................................................................26 A Final Note on the Availability of Community-Based Services and Supports
that Foster Independence and Community Integration..........................................28
SUMMARY AND CONCLUSIONS ......................................................................................28
SIGNATURES.........................................................................................................................30
REFERENCES ........................................................................................................................31
APPENDIX..............................................................................................................................34
Appendix A: Stratification by Geographic Region and Total Census............................34
Appendix B: IMD Visit Scheduled and Plan..................................................................35
Appendix C: Resident Code Sheets ................................................................................36
Appendix D: IMD Resident Professional Evaluation Interview.....................................46
Appendix F: IMD Resident Medical Record Review Protocol ......................................61
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LIST OF TABLES Table 1: Characteristics of Residents Interviewed............................................................13 Table 2: Types of Physical Community Integration Activities “Never” Completed........14 Table 3: Persons Accompanying Residents on Physical Community Integration
Activities .............................................................................................................15 Table 4: Comparison of Social Community Integration Scores “In the Community”
and “In the IMD” ...............................................................................................16 Table 5: Comparisons “In the Community” and “In the IMD” for Various Social
Community Integration Items Answered as “Never” .........................................17 Table 6: Comparison of Psychological Community Integration Scores “In the
Community” and “In the IMD” ..........................................................................17 Table 7: Comparison of Preferences for Moving Out of the IMD vs. Out of the
Neighborhood/Community ...............................................................................18 Table 8: Comparisons of Satisfaction with Housing ........................................................19 Table 9: Residents Indicating “No Choice at All” to Various Items Involving
Choices in IMD Housing ....................................................................................20 Table 10: Residents’ Composite Scores of Capacity for Independent Living...................22 Table 11: Residents’ Anticipated Date to Discharge Using the Most Recent
Minimum Data Set (MDS) Form.......................................................................27
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INTRODUCTION
This report was prepared at the request of counsel representing the class of plaintiffs in the civil rights class action suit of Williams v. Blagojevich, et al. The law suit is pending in the United States District Court for the Northern District of Illinois.
The plaintiffs are residents of 26 intermediate care nursing homes for people with mental illness that in Illinois are known as Institutions for Mental Disease, or IMDs. In the Court’s order dated November 11, 2006, the class of plaintiffs was defined as Illinois residents who: “(a) have a mental illness; (b) are institutionalized in a privately owned Institution for Mental Diseases; and, (c) with appropriate supports and services may be able to live in an integrated community setting.”
This report describes a systematic professional evaluation of a representative sample of residents of IMDs that was conducted by a team of mental health professionals. The purpose of the evaluation, which was requested by plaintiff class, is to determine whether residential services and programs in the IMDs are being provided in the most integrated setting appropriate to each resident’s disability, and whether with appropriate supports and services, residents who participated in the evaluation could live in more integrated community settings.
The Evaluation Team and Its Qualifications
The mental health professionals who conducted the evaluation are three faculty members from the Yale University School of Medicine: Jacob K. Tebes, Ph.D., a psychologist and the team leader; Paul T. Amble, M.D., a psychiatrist; and Madelon V. Baranoski, Ph.D., MSN, a psychologist and nurse. The team has considerable experience in public-sector mental health services and administration, including: clinical psychology and psychiatry; evaluation methodology; quality assurance; community program development; community service system development; clinical and service system consultation; forensic psychiatry; and clinical and outcome assessment.
Dr. Tebes is an Associate Professor of Psychology in Psychiatry, Child Study Center, and Epidemiology and Public Health, Yale University School of Medicine. He is also Deputy Director of The Consultation Center and Co-Director of the Division of Prevention & Community Research at Yale, and has served as President of the Medical and Professional Staff of the Connecticut Mental Health Center. In a professional career of more than 20 years as a licensed psychologist, Dr. Tebes has worked extensively with persons who have serious mental illness and the systems that serve them, including: conducting hundreds of clinical and research interviews; developing community-based evaluation and quality assurance programs; and consulting to municipal, state, and federal agencies. He has also published on the treatment and evaluation of persons with serious mental illness, and presented to scientific and professional audiences on issues pertaining to this population.
Dr. Paul T. Amble is an Assistant Clinical Professor of Psychiatry at the Yale University School of Medicine and the Chief Forensic Psychiatrist of the Division of Forensic Services, Connecticut Department of Mental Health and Addiction Services. He is a Diplomat of the
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American Board of Psychiatry and Neurology and a Board Certified Forensic Psychiatrist. He has 18 years experience conducting over 1,000 forensic evaluations and clinical assessments, and providing treatment to persons with serious mental illness in a variety of hospital, residential, correctional, and community settings. In the course of this work Dr. Amble is routinely consulted to assist mental health treaters who are transitioning high risk persons with serious mental illness from institutional settings to the community. He has completed numerous professional presentations and conducted research in this area.
Dr. Madelon Baranoski is an Associate Professor of Psychology in the Department of Psychiatry, Yale University School of Medicine. She is also currently the Director of the New Haven Diversion Project and the Associate Director of the New Haven Court Clinic of the Connecticut Mental Health Center. As a licensed clinical psychologist, she has over 25 years of professional experience working with persons with serious mental illness. In the last 10 years, she has conducted over 2,000 competency-to-stand-trial evaluations of adults with serious mental illness, including hundreds of assessments to determine the appropriateness of discharge from institutional to community-based settings. She also has extensive published work and professional presentations involving community care for persons with serious mental illness.
In visits to eight IMDs during February 5 - 7, 2008 and March 5 - 7, 2008, Drs. Baranoski and Tebes interviewed a representative sample of IMD residents, and Dr. Amble reviewed their available medical records. In addition, on June 19, 2008 all members of the team visited two community residential sites, C4 and Thresholds, in Chicago, Illinois. As part of their work, team members also examined various relevant scholarly articles and measures, including those cited as references at the end of this report, and reviewed the following materials:
• Medical records of all residents interviewed in the IMDs as well as portions of individual medical records not available at the time of the visit.
• Combined Agreed Protective Order in Williams v. Blagojevich (Includes Agreed Order Supplementing Protective Order and Second Agreed Order Supplementing Protective Order)
• Governor’s Housing Task Force Working Group’s “Supportive Housing Report” • Swartz, Luchins & Hanrahan report “Minimum Data Set Classification of PASR Clients
in Nursing Homes” • Deposition transcript of Lorrie Rickman Jones, February 27, 2008 & May 29, 2008 • 3/15/05 Report to the General Assembly • Defendants’ motion to exclude expert testimony and plaintiffs’ response in New York
Adult Home case • Materials related to IMDs’ motion to quash subpoenas • Plaintiffs’ response in opposition to motion to quash subpoenas & exhibits • IMDs’ replies to plaintiffs’ response in opposition to motion to quash • Judge Hart’s January 2, 2008, Order and Opinion re: motion to quash subpoenas • Elizabeth Jones’ and Denny Jones’ redacted reports in NY Adult Home case • List of IMDs and DPH website (www.idph.state.il.us) • Amended Complaint in Williams v. Blagojevich • Website for random selection of IMDs
(www.graphpad.com/quickcalcs/randomSelect1.cfm), website for random selection of
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residents for interviews (www.randomizer.org/form.htm), and websites to calculate sample size (www.marketresearchworld.net and www.raosoft.com).
BACKGROUND
Two abiding objectives for the evaluation were to develop and implement an evaluation that adheres to principles of scientific rigor, and to ensure that the evaluation is consistent with current standard practice in mental health. Each of these objectives is discussed below as background to the report.
Develop and Implement an Evaluation that Adheres to Principles of Scientific Rigor
Scientific rigor refers to methods that are drawn from science that are systematic, reliable, valid, and replicable, and that are theoretically linked to concepts being examined empirically (Tebes, Kaufman, & Connell, 2003; Tebes, 2005). The evaluation of IMD residents developed and implemented by the team adhered to principles of scientific rigor by following these principles:
1) assemble a qualified team of experts to carry out the evaluation;
2) develop an explicit, systematic, and efficient methodology that is focused on issues and constructs relevant to the specific issues in the case;
3) collect data to address issues relevant to the case using multiple sources of data, such as reports from the residents of the IMD, reviews of medical records, and observations of experienced mental health professionals;
4) whenever possible, use measures that have been previously shown to be reliable and valid; and,
5) gather sufficient data to ensure that representative generalizations can be made to the population involved in the complaint.
Specific information regarding the measures and procedures employed that illustrate how the evaluation adhered to principles of scientific rigor is provided in the Methods section of this report.
Ensure that the Evaluation is Consistent with Current Standard Practice in Mental Health
Another central objective of this evaluation was that it be consistent with current standard practice for serving persons with serious mental illness. Over the past 50 years, treatment for serious mental illness has steadily advanced from the provision of total institutional care, including residential services, to the delivery of a range of community-based services for persons living independently in the community (Koyangi, 2007; Levine & Perkins, 2004). These developments occurred as the result of advances in psychological theories and related applications, medications, psychiatric diagnosis, and community-based services, as well as due
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to dramatic changes in the law and to increased societal knowledge and understanding of mental illness (Lamb, 1984; Levine & Perkins, 2004; Mechanic & Rochefort, 1990; Mueser, Bond, Drake, & Resnick, 1998).
The Emergence of Family- and Consumer-Driven Services
An important component of the shift to community-based care was prompted by family members and patients themselves, exemplified by the emergence of the National Alliance on Mental Illness (NAMI), a national advocacy organization with affiliate chapters in every state. In the 1970s, family members, who often were blamed indirectly by mental health professionals as contributing to their child’s mental illness, began to advocate for better treatments for their adult sons or daughters to address what was increasingly viewed as a neurobiological illness similar to other medical illnesses (Hatfield & Lefley, 1987). Patients themselves began to articulate poignant first person accounts of their illness that captured the public attention, referring to themselves as mental health “consumers” capable of assisting in the management of their care (Deegan, 1988). These developments prompted the mental health field to regard family and consumer involvement in mental health care as essential to the provision of quality services. Practically, this also meant that family members and consumers gradually became involved in treatment and discharge planning; medication management; and choice of housing, vocational, and socialization services. Mental health providers also needed to attend more closely to issues of consumer satisfaction with services. Currently, family-driven and consumer-driven services are integral to current standard practice in the mental health field, as noted in the President’s New Freedom Commission Report (Hogan, 2003).
Institutionalism
The path toward family- and consumer-driven services has been gradual, and derives from many sources. One source was scholarly work in the late 1960s and early 1970s which identified the concept of institutionalism (Wing & Brown, 1970). Institutionalism refers to a condition among institutionalized persons with serious mental illness that is marked by apathy; loss of learning capacity, curiosity, and initiative; passivity and dependence; social withdrawal; restricted emotion or “flatness” of affect; and acquiescence and submissiveness to authority (Wing & Brown, 1970; Wirt, 1999). It is the by-product of long-term residential stays in institutional settings for persons with mental illness, and is often accompanied by the person’s reluctance to leave the institutional setting (Wirt, 1999). Professional recognition of institutionalism prompted a redoubling of efforts to provide community-based services outside of institutional settings.
Deinistutionalization
A parallel development to institutionalism was emerging public concern over abuses in psychiatric hospitals (Lamb & Bachrach, 2001). These concerns, coupled with the advances noted earlier -- in psychological theories and related applications, medications, diagnosis, community-based services, and the law -- furthered the growing movement toward “deinstitutionalization” of persons with serious mental illness from hospital and residential psychiatric settings to the community (Lamb, 1984; Levine & Perkins, 2004). Policies that
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promoted deinstitutionalization, however, rarely provided sufficient resources for the development of appropriate community supports and services, including case management, vocational, socialization, and housing services (Lamb & Bachrach, 2001). This resulted in widespread homelessness among persons with mental illness beginning in the 1970s and inadequate service systems to provide comprehensive community-based mental health services.
Recovery-Oriented Care
Over the past several decades, federal and state agencies, family and consumer advocacy groups, and researchers have attempted to address these issues by instituting a variety of measures, such as: establishing comprehensive and coordinated community-based systems of care; involving consumers and family members in treatment choice and decision-making, and developing innovative approaches to treatment. The recent President’s New Freedom Commission Report on Mental Health (2003) captures well the current standard practice in the mental health field when it refers to mental health care that is “consumer-centered” and “recovery-oriented” and whose emphasis is on a plan of care that includes “treatment, supports, and other assistance to enable consumers to better integrate into their communities” and allows them “to realize improved mental health and quality of life.”
The inclusion within the President’s New Freedom Commission Report of the principles of “recovery” and “community integration” reflects the most current thinking in the field. The Report defines recovery as “the process in which people are able to live, work, learn, and participate fully in their communities.” Recovery-oriented models of care for persons with mental illness have been adopted by state mental health agencies across the United States, including the recent adoption of this philosophy by the Illinois Department of Human Services (DHS).
Quoting directly from DHS (2005), “a philosophy of recovery:
y Emphasizes the potential of all individuals to recover from the challenging impact of psychiatric illness,
y Is consumer directed, family/support-centered,
y Encourages independence, integration and a productive role in the community for all individuals.
y Identified and uses consumer strengths.
y Skillfully integrates ‘natural supports’ (friends, family, support groups, other community resources) with professional supports.
y Delivers professional services in the consumer’s natural environment where healing and re-learning can be maximized.”
These principles, among others, are consistent with those espoused in other states.
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Community Integration

By defining community integration as integral to recovery, the President’s New Freedom Commission Report also captures current thinking within the field about the centrality of community integration to recovery. Traditionally, community integration has been defined as the extent to which persons with psychiatric disabilities participate in community activities and use community resources (Segal & Aviram, 1978). However, in more recent years, community integration has been reconceptualized to refer more generally to whether an individual lives, participates, and socializes in the community (Gulcur, Tsemberis, Stefancic, & Greenwood, 2007; Wong & Solomon, 2002).

This more comprehensive understanding of community integration has redefined it as consisting of three interrelated components: physical integration, social integration, and psychological integration (Wong & Solomon, 2002).

y

Physical integration refers to the actual behavior of engaging in activities outside of

one’s residence and in the community.

y

Social integration refers to the extent of interaction and involvement with others in the

community, including neighbors.

y

And psychological integration refers to the feeling of connection and belonging to the

community as well as experiences of emotional attachment to members of the community, such

as neighbors.

This evaluation uses the tri-partite definition of community integration, which is consistent with a recovery-oriented philosophy.

Supportive Housing

Consistent with a recovery orientation, the broader definition of community integration focuses community care on enhancing independence for persons with mental illness. This focus requires greater attention to housing in the community. Currently, community-based mental health services include several types of housing for individuals with serious mental illness. One traditional housing approach is community-based residential treatment, such as group homes. Current practice has moved away from this model of care because it is expensive and is generally not oriented toward promoting independence and community integration (Carling, 1995; Gulcur et al., 2003; Nelson et al., 2007; President’s New Freedom Commission, 2006; Wong & Solomon, 2002). More recent approaches have emphasized two other types of community living more consistent with a recovery-oriented philosophy -- supervised apartments in which staff is present on-site for all or part of a 24-hour period, or independent living apartments in which individuals live in their own apartments and supportive services are provided as needed (Gulcur et al., 2003; Nelson et al., 2007; Wright & Kloos, 2007). In combination, supervised or independent living apartments provide a continuum of residential services in the community that can be tailored to the individual’s needs. Either type of apartment can be offered in scattered sites or in congregate settings, although scattered sites have recently gained favor and are more

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integrated. As noted in the President’s New Freedom Commission report, the availability of supportive housing options that are tailored to individual needs is essential if persons with mental illness are to reach their potential and maximize their independence and recovery.
Summary and Conclusions
Advances in the mental health field over the past 50 years as well as the emphasis on recovery over the past decade, have created a consensus among mental health professionals that individuals with mental illness will move toward ever-increasing independence and community integration. As a result, institutions that require more restrictive and congregate care are generally viewed as temporary and transitional settings whose purpose is to promote recovery from acute psychiatric illness, address serious risk that arises from severe psychiatric symptoms, enhance life skills, and provide a basis for developing discharge plans that support a person’s trajectory to independence and increased integration into the community. Although some persons—because of substantial risk to the person or to public safety, complicating medical conditions requiring higher levels of care, or severe cognitive deficits—may require higher levels of care for sustained periods, these instances are expected to be relatively few. Even for individuals in these circumstances who may require more restrictive care, ongoing reassessment of their potential for increased independence and community integration is the current standard of practice within the mental health field.
METHOD
Overview
The evaluation involved completion of interviews with a representative sample of residents and reviews of resident medical records. Interviews, which included the collection of structured and scientifically-supported measures of relevance to the issues in the case, were completed by Drs. Baranoski and Tebes, and medical records were reviewed by Dr. Amble. Interview and record review data were entered into a statistical database and analyzed using standard scientific data analytic techniques.
Procedures
Selecting an Appropriate Evaluation Design
The evaluation design sought to determine whether IMD residents were capable of living in more integrated community settings with appropriate services and supports, and to identify possible barriers to independent living and community integration. The design emphasized the integration of quantitative and qualitative data about common domains, such as resident functioning, that was drawn from multiple data sources, such as resident self-reports, medical records completed by professional staff, and clinical observations by experienced interviewers. Such a “triangulation” strategy for data collection enhanced the scientific rigor of the evaluation because it sought to obtain related or similar information from multiple data sources so as to strengthen the validity of conclusions made (Tashakkori & Teddie, 2003; Tebes, 2005).
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Selecting a Random Sample of Residents for Interviews and Record Reviews
To ensure that data collected could be generalized to residents of all 26 IMDs, a stratified random sample of residents was invited to participate in the evaluation. Stratified random sampling divides a population into separate “strata” or groups of relevance to the evaluation, and then selects randomly from each stratified group in proportion to its distribution in the population (Levy & Lemeshow, 2003; Thompson, 2002). Two relevant strata for this evaluation are IMD geographic region and census.
The stratified random sampling procedure divided IMDs into the following five Illinois geographic regions (with the number of IMDs located in each region listed in parenthesis): Downstate (2 sites), Chicago-South Side (4 sites), South Suburban Chicago (4 sites), North Suburban Chicago (6 sites), and Chicago-North Side (10 sites). In addition, IMDs also were divided into categories by their total census: facilities with over 400 residents (3 sites), those with less than 100 residents (4 sites), those with 200 - 299 residents (6 sites), and those with 100 - 199 residents (13 sites). (No IMDs had 300 - 400 residents.)
A total of 30% of all IMDs, or eight sites, were selected to be included in the evaluation. In addition, a decision rule was applied such that all strata -- defined by region or census -- with four or fewer sites would contribute one site for random inclusion into the evaluation until a total of eight sites were selected. Thus, for example, strata with six or eight sites would contribute two sites for random selection, and so on. Each site was then assigned a number in alphabetical order from 1 to the total number of IMDs in a given strata, and then matched with a list of randomly generated numbers. Beginning with the geographic region with the fewest number of sites (e.g., Downstate) and ending with the region with the largest number of sites (Chicago-North Side), IMDs were selected randomly.
Table A (in Appendix A) shows the strata for each of the five geographic regions (e.g., columns) and four census groups (e.g., rows), and notes in bold the IMDs that were randomly selected into the evaluation. These were: Sharon Health Care Woods (Downstate, census 100199), Columbus Manor (Chicago-South Side, census 100-199), Thornton Heights Terrace (South Suburban Chicago, census 200-299), Bayside Terrace (North Suburban Chicago, census 200-299), Greenwood Care (North Suburban Chicago, census 200-299), Margaret Manor North (Chicago-North Side, census <100), Somerset Place (Chicago-North Side, census >400), and Clayton Residential Home (Chicago-North Side, census 200-299).
A target number of residents to be interviewed across all eight IMDs was then obtained by determining the sample size that best balanced the precision needed to estimate population means for IMD residents on various measures with an acceptable margin of error. A sample size of 120 residents provided reasonable balance between these two competing constraints while also affording scientific rigor. .
Finally, a second randomization procedure was used to obtain a target number of residents from among the 120 to interview within each IMD so that the sample would be representative of all IMD residents. To obtain this number, the proportion of the total number of possible residents for the eight sites chosen was computed. Thus, for example, across all eight
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sites selected the total possible census was 1,672 residents. Each site’s total census was then divided into this number and multiplied by 120 to determine the total number of residents to be interviewed from that IMD. Once the evaluation team arrived at each site, the IMD manager was asked to provide a list of residents. Each resident was assigned a number consecutively, and then selected for an invitation to participate in the evaluation based on whether their number came up on a list of randomly generated numbers for each site. A copy of the IMD site visit schedule that contains the targeted sample within each IMD and a Resident Code Sheet that displays the random number list used for each site can be found in Appendix B and C, respectively.
Ensuring Consent, Confidentiality, and the Protection of Data
Each of the interviews was conducted in private by Drs. Baranoski or Tebes after residents were given an opportunity to be informed about the purpose, details, and risks of participating in the evaluation by the interviewers. The procedures used to obtain consent were common in forensic and clinical evaluations, and residents who did not wish to participate were excused. A total of 22 residents declined after being invited to participate, and two residents were unable to complete the interview (one because of a language barrier and another because the interviewer was uncertain that informed consent was obtained). A copy of the consent procedure, including the interviewer script, in which residents were invited to participate in the evaluation is included in Appendix D, the first page of the interview protocol. After residents provided verbal assent to participate, Drs. Baranoski or Tebes began the interview. Once assent was obtained, Dr. Amble began reviewing the medical record.
To ensure confidentiality, all interviews and record review protocols contained only code numbers that were assigned immediately after assent was provided. Code numbers matched to names were stored in a locked file cabinet to which only Dr. Tebes had access. In addition, data entered into the statistical database for analyses was stored only by code numbers and followed usual procedures for the protection of data.
Minimizing Disruption to the Setting and for the Residents and Staff
The evaluation team and the plaintiffs’ attorneys were committed to minimizing any disruption to the IMD and to residents and staff. Each IMD was informed at least one week prior to the visit the approximate date and time of arrival for the evaluation team, and every effort was made by the team to keep to their planned schedule. In addition, once on site, the team attempt to conduct interviews or review records in mutually convenient locations for the staff, residents, and the team, and to make minimal demands on site. For the most part, IMD leadership and staff were gracious and welcoming hosts who made every effort to assist the team to ensure that they could complete their work as efficiently as possible.
Measures
Two types of measures were used: a resident interview protocol and a record review protocol. These are included in this report as Appendix D and E, respectively. These two protocols collected data about:
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y

residents’ level of community integration (physical, social, and psychological),

y

residents’ housing preferences, satisfaction, and housing choice;

y

possible barriers to independent living and community integration, such as:

 residents’ capacity for independent living;

 residents’ activities of daily living skills (e.g., dressing, bathing, feeding, etc.);

 residents’ mental status/cognitive functioning;

 residents’ level of psychiatric symptomatology;

 the presence of medical conditions among residents that could limit independence;

 residents’ risk to self or others; and

 the extent of transition planning for independent living and community integration.

In addition to these measures, basic demographic and background information was obtained for each resident in the interview and the medical record. Each interview began with a series of 13 open-ended questions designed by the evaluation team for the purpose of the evaluation. The questions requested descriptive information about the participants’ length of stay, prior living history, participation in current treatment, psychiatric history and risk to self or others, and residents’ marital status, level of education, and most recent employment. In addition, the record review recorded each person’s gender, age, race/ethnicity.

Each of these types of data is described briefly below.

Residents’ Level of Community Integration

Data about distinct types of community integration were collected in the interview. Physical integration was assessed using an instrument adapted from Kruzich (1985). For this evaluation, residents were asked to rate the frequency of their involvement, from 0 (Never) to 4 (Very much), in 10 typical community activities outside of their IMD, such as going to a shopping area; going to restaurants, bars, or taverns; attending church or another place of worship, or taking a walk outside. Ratings were then summed to produce an overall score of physical integration. In addition, for each activity, residents were asked to indicate whether they usually did this activity alone, with others from the IMD, or with others outside of the IMD, such as family members, neighbors, or friends living in the community.

Social integration was assessed using the Social Integration Scale (Aubry & Myner; 1996), a widely adapted 13-item instrument of the frequency of social interaction activities. Sample items include: “How often have you said hello or waved to a neighbor (or someone outside of the IMD)?” “How often have you gone on a social outing with a neighbor (or someone

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outside of the IMD)?” and “How often have you had a conversation in the street with a neighbor (or someone outside of the IMD)?” Responses to each item are answered from 0 (Never) to 4 (Frequently). Residents were asked each question in relation to the IMD and to the community/neighborhood outside of the IMD.
Psychological integration was assessed with an adapted version of the Neighborhood Cohesion Index (Buckner; 1988), an established 18-item instrument that assesses individuals’ sense of connection or belonging to the community and their experiences of emotional attachment to members of the community, such as neighbors. Sample items include: “Overall, I am very attracted to living here”; “I feel like I belong here”; and “Living (here) gives me a sense of community.” Responses to each item are answered from 1 (Strongly Disagree) to 5 (Strongly Agree). Residents were asked each question in relation to the IMD and to the community/neighborhood.
Residents’ Housing Preferences, Satisfaction, and Housing Choice
Residents’ housing preference was assessed by examining two items: residents’ responses to an item from the psychological integration measure described above in which they were asked the following: “Given the opportunity, I would like to move out of this place,” and indications of residents’ stated preference for independent living noted on the Minimum Data Set (MDS) form in the medical record.
Residents’ satisfaction with their current living situation was obtained through the use of two items selected from the Housing Environment Survey by Kloos, Shah, Frisman, & Rodis (2005). One item asked respondents about their neighborhood and another asked about their current housing, the IMD. Each item is answered on a five-point scale, ranging from 1 (Very Dissatisfied) to 5 (Very Satisfied). An additional item was included that asked residents how satisfied they would be if they could live independently in an apartment with all the supports that they need.
In recent years, housing choice has been shown to be an important factor influencing housing preference and satisfaction, and was included to provide context for understanding each. Housing choice was assessed using 20 items from the Housing Environment Survey by Kloos et al (200) which was adapted from a similar instrument developed by Srebnik et al. (1995). Sample items include: “how much choice did you have over the neighborhood you moved into” and “how much choice did you have over decorating and furnishing.” Each item is answered on a five-point scale, ranging from 1 (No Choice at All) to 5 (A Great Deal of Choice). Items were summed to create a total score, with higher scores indicating greater choice over housing matters.
Possible Barriers to Independent Living and Community Integration
Residents’ capacity for independent living was assessed by each interviewer by means of an adapted version of the Role Functioning Scale (Goodman, Swell, Cooley, & Leavitt; 1993). Two domains from the original scale were retained for rating: independent living/self care and social relationships. Each domain was modified so that it was rated on a five-point scale from 1 (minimal level of functioning) to 5 (optimal level of functioning). These domains were then
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combined into a composite score that provided an overall assessment of each resident’s capacity for independent living in the community. It is important to note that the ratings by Drs. Baranoski and Tebes on this instrument took into account all previous information obtained in the interview, including other direct assessments of functioning, symptoms, and risk status as well as the interviewer’s clinical observations of each resident.
A related measure of adaptive functioning was also assessed using the Independent Functioning Scale (Rappaport et al., 1985). This scale asked residents’ their capacity for independent functioning in seven areas, including: money management, housekeeping, and meal preparation by scoring their responses on a three-point scale with a score of (1) indicating others’ responsibility, (2) shared responsibility, and (3) their own responsibility. Items were summed, with higher scores indicating greater independent functioning. One concern with this data, however, was that IMDs appeared to assume so much responsibility for many of these hallmarks of independent functioning that accurate assessment of this capacity may not be possible.
Residents’ activities of daily living were assessed using the Katz Index of Independence in Activities of Daily Living (ADL) (Shelkey & Wallace, 1999). This instrument assesses each resident’s ability to perform 6 basis activities of daily living: bathing, dressing, toileting, feeding, transferring, and continence. Each ADL is scored 1 if the person is able to complete the task independently and 0 if the person requires assistance. Scores are totaled across the 6 areas, with 6 indicating full function, 4 moderate impairment, and 2 or less severe functional impairment.
Residents’ mental status/cognitive functioning was assessed using the Mini Mental Status Exam (Folstein, Folstein, & McHugh, 1975). The MMS assesses cognitive functions in five domains: orientation, registration, attention and calculation, recall, and language. Each item is scored 0 for incorrect responses and 1 for correct responses. Scores are then summed to create a total score, with a range from 0 to 30.
Residents’ level of psychiatric symptomatology was assessed using the 18-item version of the Brief Psychiatric Rating Scale (Overall & Gorham, 1962; Faustman & Overall, 1994), a clinician-rated instrument. Each item is rated on a seven-point scale ranging from 0 (Not Present) to 6 (Extremely Severe). Higher scores indicate greater psychiatric difficulty.
The presence of medical conditions that could limit independence was assessed with careful reviews of the medical record. Each medical condition specified in the record was noted and recorded, and supporting documentation was sought to determine whether a particular medication condition could limit living independently in the community.
Residents’ risk to self or others was assessed using a combination of medical record review and direct questioning of residents. Medical records were reviewed to determine whether the treatment or discharge plan, or any part of the medical record specified whether the resident posed a risk to self or others. In addition, the record was examined for evidence that the resident’s deficits in current functioning required them to live in the level of care provided in the IMD. Finally, residents’ risk to self or others was assessed in the interview with the question: “Over the past year, have you tried to physically harm yourself or someone else?”
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The extent of transition planning for independent living and community integration was assessed through reviews of medical records. First, evidence of a current treatment plan and discharge plan was assessed, and then evidence was sought in either plan of a process of transition planning leading to independent living and enhanced community integration.

RESULTS

Characteristics of Residents Interviewed

Table 1 summarizes various characteristics of residents interviewed.

Table 1: Characteristics of Residents Interviewed

Resident Characteristics

Number

Percent

Gender

Female

38

31

Male

83

69

Race/Ethnicity

African American

49

41

Asian American

7

6

Caucasian

56

46

Hispanic

8

7

Other/Unknown

1

1

Education Completed

Less than High School

38

31

High School Graduate

45

37

Greater than High School

38

31

Age (Mean: 49.3, st. deviation=10.7, range=21 to 82)

21 - 30 years

5

4

31 - 40 years

20

17

41 - 50 years

45

37

51 - 60 years

33

27

Older than 60 years

18

15

Number of Residents Interviewed from Each IMD

Bayside Terrace

12

10

Clayton Residential Home

18

15

Columbus Manor

14

12

Greenwood Care

10

8

Margaret Manor North

7

6

Sharon Health Care Woods

11

9

Somerset Place

32

26

Thornton Heights Terrace*

17

14

Length of Time in the Current IMD

Less than 2 Years

26

21

3 to 10 Years

55

46

More than 10 Years

50

41

* One additional interview was conducted at Thornton Heights Terrace because one resident returned to complete a partially-

completed interview just as the final interviews were being completed. Rather than omit this interview, it was included in the sample.

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Community Integration
To What Extent are Residents Physically Integrated into the Community?
Residents’ average involvement in activities outside of the IMD yielded a score of 5.07 (out of a possible 40) which is comparable to that found for residents with mental illness living in intermediate care facilities, and lower than individuals living in community settings. Table 2 shows the percent of residents who answered “Never” to their involvement in 10 community activities in the past month. As the table shows, the majority of residents did not leave the IMD in the past month to attend a movie, a sports event (as spectator or participant), a community center, or a church, or to visit a park or museum, or to go to a job/volunteer activity. In addition, for more common activities, within the previous month at least one-third of residents reported that they had never left the IMD to go shopping (38%), to a restaurant (42%), or to take a walk outside (33%).

Table 2: Types of Physical Community Integration Activities “Never” Completed

Physical Community Integration Activities (within the past month)
Going to a shopping area Going to movies or concerts Going to restaurants, bars, or taverns Go to sports events Playing or participating in sports events outside of IMD Going to a community center Going to church or another place of worship (outside of the IMD) Going to a park or museum Taking a walk outside Going to your job or volunteer activity

Percent Who Answered “Never”
38 70 42 89 94 96 68 68 33 81

Table 3 (next page) depicts whether residents participated in community activities usually alone, usually with others in the IMD, or usually with others outside of the IMD (such as family or friends). The table includes in the far right column the percent, based on all residents, of those who engaged in community activities usually with others outside of the IMD. Residents’ engagement with persons outside of their IMD provides some estimate of their involvement with persons in the community outside of their residence which can include non-psychiatricallydisabled individuals as well as former IMD residents who no longer lived in their facility.

As is shown in the table, across all activities, IMD residents who participated in community activities did so alone or with others in the IMD the majority of the time. When activities did take place with others outside of the IMD, residents told Drs. Baranoski and Tebes that these usually involved family members, such as parents or siblings.

The column on the far right in the table combines data from Tables 2 and 3 to compute a percent of residents (based on the total number interviewed) who engaged in community

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activities usually with others outside of the IMD. As is shown, that percent ranged from 1 to 21 percent, indicating that the majority of residents had reported no engagement in community activities on a regular basis with individuals outside of the IMD. The most frequent activities done with others included going to a restaurant/bar/tavern (21%), going to a shopping area (16%), and going to a movie/concert (10%) during the past month. In the vast majority of cases, the residents identified family members as those with whom they did these activities.

Table 3: Persons Accompanying Residents on Physical Community Integration Activities

Physical Integration Activities (within the past month)
Going to a shopping area Going to movies or concerts Going to restaurants, bars, or taverns Go to sports events Playing or participating in sports events outside of IMD Going to a community center Going to church or another place of worship (outside of the IMD)
Going to a park or museum Taking a walk outside Going to your job or volunteer activity

Usually Alone (%)
49 19 33
33 14
50 47
60 69 48

Usually with
Others at IMD (%)
26 49 30
33 57
33 31

Usually with
Others Outside of
IMD (%)
26 32 38
33 29
17 22

Percentage of ALL Residents Who Engaged in
Community Activities Usually
with Others Outside of IMD
16 10
21 2
2 1

6

30

11

3

22

9

6

22

30

6

Conclusion: y IMD residents do not show evidence of physical integration into the community. y Those residents who do engage in community activities mostly do so alone or with others from the IMD. y A small proportion of residents engage with others outside of the IMD. y Those who do so usually go to a restaurant, shopping area, or a movie with a family member. y Overall, community integration by actual physical involvement in community activities with individuals who do not have psychiatric disabilities is extremely low.

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To What Extent are Residents Socially Integrated into the Community and the IMD?

Table 4 shows residents’ average social integration score with individuals in the community or neighborhood (e.g., labeled “in the community”) and with other residents of the IMD (e.g, labeled “in the IMD”). Social integration scores provide an assessment of social interactions with others, and for the purposes of this evaluation, interactions “in the IMD” are more likely to involve other individuals with disabilities while those “in the community” may involve more individuals without disabilities. Examples of the social interactions assessed include: saying hello or waving to others, going on social outings with others, talking to someone about personal issues, having a conversation with someone in the hall or the street, and so on.

Table 4: Comparison of Social Community Integration Scores “In the Community” and “In the IMD”

Social Community Integration Score

In the Community

In the IMD

Mean average score

16.85

26.50

Possible range of scores

13 - 65

13 - 65

Note. For the social integration measure, the standard deviation In the Community was 5.79, and In the IMD was 9.01.

As is shown, the social integration score for interactions with others in the community is 16.85, and the score for interactions with others in the IMD is 26.50. Both of these scores are out of a possible range of scores from 13 - 65. The results indicate that residents’ social interactions with individuals in the community/neighborhood are infrequent and significantly lower than what is generally found for community residents with psychiatric disabilities living in community-based housing. As shown, social interactions with others in the IMD are higher, and are comparable to those reported for social interactions in the community for persons with psychiatric disabilities.

The difference between the average social integration score for “in the community” vs. “in the IMD” is statistically significant (t=12.76, df = 120, p < .0001). The p level in the analysis shows that the difference between the low score for interactions “in the community” and higher score for the interactions “in the IMD” is a reliable difference and not due to chance.

The social community integration scores also reflect the residents’ capacity for an interest in social interactions. The moderate level of interactions reported by residents in the IMD with others there indicates that, as a group, residents demonstrate both a capacity for and interest in social engagement but that their interactions are limited almost exclusively to other individuals with psychiatric disabilities who live in the same IMD.

Table 5 below shows residents’ percents for a few types of social interactions that illustrate the differences in social integration “in the community” and “in the IMD.”

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Table 5: Comparisons “In the Community” and “In the IMD” for Various Social Community Integration Items Answered as “Never”

Social Integration Activities
Said hello or waved to someone Gone on a social outing with someone Been invited to someone’s apartment/home Talked to someone about personal issues Had a conversation in the hall/on the street with someone

In the Community (% - Never) 45 86 85 87 63

In the IMD (% - Never)
11 49 38 47 32

Conclusion: y IMD residents are not socially integrated into the community and report few social interactions with persons outside of the IMD. y Residents show significantly greater social interactions with other residents in the IMD. y The moderate social interaction with residents in the IMD demonstrates the residents’ capacity for and interest in social interactions. y Thus, the lack of community social integration probably reflects limited access by residents to opportunities to engage in common social interactions with others who do not have psychiatric disabilities.

To What Extent are Residents Psychologically Integrated into the Community and the IMD?

Table 6 summarizes the average psychological integration score “in the community” and “in the IMD” for residents. Psychological integration reflects residents’ sense of connection or belonging either to the community/neighborhood outside of the IMD or within the IMD. Examples of residents’ connectedness or cohesion to the neighborhood or the IMD include: feeling like they belong there, reporting that friendships made mean a lot to them, being able to go to others for advice, feeling others could help them in an emergency, and feeling a “sense of community” with others. Residents’ average psychological integration score “in the community” is 2.46, and the average score “in the IMD” is 3.13. Both scores are out of a possible range of scores from 1 - 5. Although less data are available on psychological integration within various

Table 6: Comparison of Psychological Community Integration Scores “In the Community” and “In the IMD”

Psychological Integration Measure

In the Community

In the IMD

Mean Average Score

2.46

3.13

Possible Range of Scores

1 - 5

1 - 5

Note. For the psychological integration measure, the standard deviation In the Community was .64 and In the IMD was .59.

settings for individuals with psychiatric disabilities, average scores under 2.75 are generally considered indicative of lower psychological integration and those above 3.50 are indicative of

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higher integration. Thus, residents’ average score of 2.46 in the community fall in the low range, while their average score of 3.13 indicates moderate psychological integration to the IMD.

The difference between residents’ average psychological integration score in the community vs. their average score reported for the IMD is statistically significant (t=11.18, df = 120, p < .0001). This indicates that it is very unlikely that the difference in psychological integration is due to chance. The IMD score which reached a level of moderate psychological integration indicates that, as a group, residents have the capacity for and interest in psychological connection to a community; currently that community is comprised mostly of residents in the IMD.

Conclusion: y IMD residents have low psychological integration into the surrounding community comprised of individuals without psychiatric disabilities. y Residents show a moderate psychological integration to the IMD and its residents. y The moderate level of psychological integration to the IMD indicates that residents have the capacity for and interest in psychological connections to others. y Therefore, the low score on psychological integration to the outside community probably reflects a lack of access to and involvement in that community, rather than a lack of capacity on the part of residents.

Housing Preferences, Satisfaction, and Housing Choice

Where Would Residents Prefer to Live?

Several sources of data were obtained about residents’ preference for living in the IMD vs. other settings. One source was an item from the psychological integration instrument discussed in the previous section. Table 7 shows residents’ agreement with the statement “Given the opportunity, I would like to move out of this place/this neighborhood.” As shown, almost 70% of residents reported that they agreed with the statement that they would like to move out of the IMD, with 54% indicating that they “strongly agree.” Furthermore, 54% agreed that they wanted to move out of their neighborhood, with 32% providing strong agreement with that statement.

Table 7: Comparison of Preferences for Moving Out of the IMD vs. Out of the Neighborhood/Community

Housing Preference

Agree or Strongly Agree
( %)

Given the opportunity, I would like to move out of this place

69.4

Given the opportunity, I would like to move out of this neighborhood

53.7

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Responses to this question provided an opportunity for Drs. Baranoski and Tebes to solicit additional information about residents’ housing preferences. For those residents who wanted to move out, most wanted to live independently in their own apartment. After responding to the above question, many residents made unsolicited comments such as: “I want to get an apartment of my own” or “I want my own apartment” or “I want a place of my own.”

Another source of data about residents’ housing preferences was residents’ ratings of satisfaction with their current housing. Responses to satisfaction questions are displayed in Table 8. Consistent with the housing preference summarized in Table 7, two-thirds of residents said they would be “very satisfied” if they could live independently in the community with all the supports that they needed, and 76% indicated that they would be satisfied to some degree with this option.

Table 8: Comparisons of Satisfaction with Housing

Satisfaction with Housing
Satisfaction with neighborhood as a place to live Satisfaction with IMD as a place to live Satisfaction with living independently in an apartment with all the supports you need

Fairly Satisfied (%) 36 29 9

Very Satisfied (%) 35 39 67

When considered in combination with the responses shown previously in Table 7, however, Table 8 also reveals what, at first glance, is an apparent contradiction -- that 39% of residents reported feeling “very satisfied” with living in the IMD and another 29% indicated that they were “fairly satisfied.” Drs. Baranoski and Tebes probed this apparent contradiction by gently asking residents to explain their strong preference for wanting to live independently in the community while also being generally satisfied with living in the IMD. Residents’ responses were immediate. Most voiced concern about the practical realities of living independently, such as: whether they would find an apartment, whether they had the money to afford and keep it, whether they could prepare their meals, whether they could get around the city safely, whether they could manage their money, and how they could continue with treatment. Some also raised concerns about living in a safe neighborhood and having people around for friendship. In contrast to the interviewers’ experience with individuals living in community settings, to a striking degree, residents did not seem to have been prepared in fundamental ways for community living. These responses indicated that there was little contradiction in wanting to live independently while at the same time recognizing that to do so seemed daunting, given the lack of information about what services and supports would be available in community-based settings. However, a few residents did voice concern that they would be “stuck” at the IMD their entire life. As one resident put it: “I kind of like it here, but I don’t want to live here my whole life.” With more 40% of residents living in the IMDs 10 years or longer as shown in Table 1, and several residents reporting lengths of stay -- off and on -- of more than 40 years in the same IMD, such sentiments were understandable.

A final source of data about housing preference was obtained from the Minimum Data Set (MDS) that was located in each residents’ record and reviewed by Dr. Amble. Overall, the

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most recent MDS indicated that only 26% of residents indicated a preference to live in the community. This finding is discrepant from the three other data sources cited, and may indicate that residents either do not feel comfortable telling staff that they want to live elsewhere or that when asked this question it is framed in so that residents answer it mostly in the negative.

Conclusion: y Using multiple sources of data, the vast majority of IMD residents expressed a preference for living independently in the community. y A majority of residents report being fairly to very satisfied living in the IMD. y A greater majority would prefer to move out and live independently in the community. y The apparent contradiction between residents’ being generally satisfied with living at the IMD but even more strongly wanting to move out and live independently is understandable given the lack of information that residents have about the services and supports that would be available to them in community-based settings, such as supportive housing.

What Choices about Their Housing Do Residents Have in Daily Living?

Table 9 lists several responses by residents to questions about the amount of choice they had/have in their IMD housing. Previous research has shown that being able to have choices in one’s living situation is a key factor in individuals’ overall satisfaction with their housing. Thus, these responses provide some context for residents’ housing preferences and satisfaction noted above. As is shown in the table, a large majority of residents say that they have no choice at all in having overnight guests (99%), a pet (96%), cooking meals (88%), and living in a building without other people who have psychiatric disabilities (79%). About one-half to three-fifths of residents report not having any choice in locking their room door (50%), being able to come and go as they please (59%), and selecting a roommate (62%). Finally, many fewer residents said they had no choice at all when it comes to “decorating and furnishing” their rooms (21%) and in “having visitors over” (23%).

Table 9: Residents Indicating “No Choice at All” to Various Items Involving Choices in IMD Housing

How much choice did/do you have…
…over decorating and furnishing? …over who you live with? …over whether visitors can come over? …over having overnight guests? …over having a pet? …over whether you can lock your room? …over being able to come and go at any time without having to notify people? …over when to cook meals and what you can eat? …over whether you lived in a building where other consumers (people with psychiatric difficulties) live?

Percent Who Answered “No Choice at All”
21 62 23 99 96 50 59
88 79

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Conclusion: y The amount of choice residents had in daily living in the IMD varied by the nature of the activity. y The majority reported having some choice about decorating and furnishing their rooms or having visitors during the day or evening. y Nearly all residents reported no choice in whether they could have overnight guests, have a pet, or whether they could cook meals. y Residents’ lack of choices in key areas of daily living (e.g., cooking, having pets, locking doors, having overnight guests, being able to come and go as one pleases) are common to institutional living, and explains residents’ strong preference identified earlier for wanting to live independently in the community.

Assessment of Possible Barriers to Increased Independence and Community Integration

The evaluation also assessed several possible barriers that could impede residents’ increased independence and community integration. These included:

y

residents’ capacity for independent living;

y

residents’ ability to take care of their basic activities of daily living, such as dressing,

bathing, feeding, and so on;

y

residents’ mental status/cognitive functioning;

y

residents’ level of psychiatric symptomatology;

y

the presence of medical conditions that could limit residents’ independence and

community integration;

y

residents’ risk to self or others; and

y

the extent of transition planning for independent living and community integration.

Residents’ Capacity for Independent Living

At the conclusion of each interview, Drs. Baranoski and Tebes also completed a global rating of each residents’ independent living/self care skills and social relationship skills, and then combined these ratings into a composite assessment of residents’ capacity for independent living. Since these ratings were completed after obtaining all the other information in the interview, including other direct assessments of resident functioning, symptoms, and risk status as well as any clinical observations made regarding each resident, this composite rating provided a global assessment of each person’s capacity for independent living. In fact, correlations between this composite rating and all other functioning and community integration scores were positive and statistically significant, indicating that this score provided a useful indicator of each resident’s potential for successful community integration and independent living.

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Table 10 depicts five categories of composite scores for residents’ capacity for independent living. These provide a general estimate of the approximate percentage of IMD residents who could live independently in the community with the appropriate services and supports. As noted earlier, all ratings of self-care and social role functioning were supplemented by all other resident responses to the interview and clinical observations made by the interviewers. About 11% of residents showed considerable independent living capacity (scores of 9 or 10), and would be likely to require only minimal ongoing community supports to live independently. In contrast, about 13% of residents exhibited a limited capacity for independent living (scores of 2 or 3), making independent community living difficult. About 47% of residents showed a moderately high or moderate capacity for independent living (scores of 6, 7, or 8), and should be able to live independently with minimal to moderate supports. Finally, about 29% of residents exhibited a reduced capacity for independent living (scores of 4 or 5), and thus would require moderately higher levels of services and supports for independent community living, but at a level that is common for community-based housing programs found in other states.

Table 10: Residents’ Composite Scores of Capacity for Independent Living

Composite Scores of the Capacity for Independent Living High (Scores of 9 or 10)

Percent (%) 10.7

Moderate - High (Scores of 7 or 8)

29.2

Moderate (Scores of 6)

17.4

Moderate - Low (Scores of 4 or 5)

28.9

Low (Scores of 2 or 3)

13.2

It is important to note that one’s capacity for independent living is dramatically influenced by exposure to socially and cognitively stimulating environments as well as targeted skills training and transition planning. Institutional living is likely to diminish such capacities over time because of residents’ limited opportunities to exercise self-care, social functioning, and other related skills for independent living. Thus, it is probable that the overall scores above underestimate individual capacity.
Drs. Baranoski and Tebes attempted to obtain additional information about independent living skills by asking residents about their capacity for independent functioning in the following areas: handling money, cleaning one’s room, preparing meals, scheduling medical appointments, planning community activities, organizing recreational activities, and managing medications. However, because residents live in institutions that routinely managed these activities for them independent of their capacity to do so, their responses were not a meaningful indicator of independent functioning, and thus were not used.

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Conclusion: y About 85-90% of residents’ demonstrated a capacity for independent functioning that would enable them to live in the community given an appropriate level of services and supports. y About 10-15% of residents demonstrated a limited capacity for independent functioning, thus making independent community living difficult and likely to require considerable services and supports.
Residents’ Activities of Daily Living
As noted earlier, six activities of daily living (ADLs) were assessed in consultation with each resident and supplemented by observations made by Drs. Baranoski and Tebes during the interview. The six activities assessed were: transferring from one surface to another (e.g., a bed to a chair), feeding, dressing, bathing, toileting, and continence. Residents who could perform each of these activities unassisted scored a six.
A total of 92% of residents (112 out of 121) obtained a score of six which indicated that they were able to complete all ADLs without assistance, 4% (5 residents) scored a five, 3% (3 residents) scored a four, and 1% (1 resident) scored a three. The proportion of residents able to complete all ADLs is markedly higher than is typical for persons with mental illness residing in nursing homes or skilled nursing facilities. Only the four residents who needed assistance with 2 or more ADLs (those who scored a 3 or 4) would have limitations for independent living.
Conclusion: y With only a few exceptions, residents’ potential for increased independence and community integration is not limited by an inability to complete basic activities of daily living.
Residents’ Mental Status/Cognitive Functioning
The Mini-Mental Status Exam (MMSE) was administered to each resident by Drs. Baranoski and Tebes. Scores for this instrument can range from a low of 0 to a high of 30. The mean average score for residents was 24.3, with a standard deviation of 4.4 and a range of 12 to 30. A total of 19% of residents scored below 20, a score generally considered indicative of markedly diminished cognitive status.
Cognitive functioning has been shown to improve with targeted skills training, and increased social and cognitive stimulation. National norms, adjusted by age and level of education, indicate that, overall, the scores of IMD residents are generally comparable to individuals receiving outpatient treatment for serious mental illness. Such scores consistently show that individuals with serious mental illness score about two standard deviations below those observed in the general population.
Conclusion: y Residents’ mental status/cognitive functioning scores are generally comparable to other persons with serious mental illness living in the community.
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y Almost 20% of residents showed evidence of markedly diminished cognitive status; however, as has been shown in previous research, such functioning is diminished when cognitive demands are low as is commonly found in institutional living. y With targeted skills training and exposure to more enriched and demanding cognitive environments typical of community settings, cognitive functioning among this lower cognitive functioning group of residents would almost certainly increase, and thus, not serve as a significant barrier to independent living.
Residents’ Level of Psychiatric Symptomatology
Reviews of each residents’ medical record by Dr. Amble revealed a range of psychiatric diagnoses for serious mental illness, including schizophrenia, bipolar disorder, and schizoaffective disorder.
In addition, Drs. Baranoski and Tebes completed symptom ratings of each resident after the completion of the interview. These ratings were based on the responses made during the interview and their clinical observations. Symptom ratings were based on a standardized measure -- the 18-item Brief Psychiatric Rating Scale (BPRS) in which symptoms were rated from 0 (Not present) to 6 (Extremely Severe), with the total possible range of scores being 0 to 108. The mean average score for the BPRS was 18.93, with a standard deviation of 11.01 and an actual range of 3 - 61. The average score of 18.93 indicates “very mild” psychiatric symptoms. The standard deviation indicates that about two-thirds of clients had scores between 7 and 30, which falls in the “mild” range or lower. This level is comparable to that found in research of persons with mental illness who are receiving outpatient treatment and living in the community.
Finally, Dr. Amble sought to find global symptom ratings and any assessments of residents’ level of psychiatric functioning in the medical record in order to provide additional information about the symptomatology of residents. However, only one record out of 121 contained a widely-used symptom functioning score, the Global Assessment of Functioning (GAF) scale, which is a standard part of completing the psychiatric diagnosis when updating the treatment plan. In addition, only 12% of treatment plans specified the resident’s level of functioning or the present level of care required using another proxy measure of psychiatric symptomatology.
Conclusion: y Residents’ psychiatric symptomatology is predominantly “very mild” to “mild”, with extremely few residents exhibiting symptoms that present unusual difficulties for living independently in the community. y Residents’ psychiatric symptomatology is not a significant barrier to independent living and community integration.
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Medical Conditions that Could Limit Residents’ Independence and Community Integration
Dr. Amble reviewed each resident’s medical record to determine whether any medical conditions could function as a barrier to independence and community integration. For all but one resident, or 99% of the sample, the treatment or discharge plan did not specify a medical reason that would prevent the resident from being able to live independently in the community with services and supports. This low rate of medical problems impeding a resident’s ability to live independently is expected since staff at the IMD’s said they were not licensed to provide care to the medically disabled.
Conclusion: y With one exception, residents’ medical conditions are not a barrier to independent living and community integration.
Residents’ Risk to Self or Others
Each medical record was reviewed by Dr. Amble to determine whether the treatment or discharge plan, or any part of the medical record specified whether the resident posed a risk to self or others. Whenever possible, all relevant information in the record was reviewed to determine risk status. Using this criterion, 12% of records specified some risk to self or others, but not necessarily a risk so severe that it required hospitalization. Indeed, a person who poses an imminent risk of danger to self or others would require hospitalization and would not be able to be served by the level of care provided in an IMD. Thus, the level of risk indicated in the record was broad and not necessarily one that would preclude community living.
The medical record was also reviewed to assess whether it contained any evidence that a resident’s deficits in their current functioning required an IMD level of care. Data in the record indicated that 17% of residents might be considered to require the services provided in the present placement.
A third source of data regarding residents’ risk to self or others was obtained directly in the interviews conducted by Drs. Baranoski and Tebes. Each resident was asked whether: “Over the past year, have you tried to physically harm yourself or someone else?” A total of 7% of residents reported that they had tried to harm themselves or someone else during the past year, but were no longer at risk to themselves or others.
Conclusion: y A small percentage of residents, ranging from about 7% to 17% pose a risk to self or others at some time during the time they reside in the IMD, but may not reflect current risk. y For the vast majority of residents, however, dangerousness to self or others does not serve as a barrier to community integration at any time. y Furthermore, even for those residents judged to be at risk to self or others, this status is almost certainly temporary because clinical treatment is expected to mitigate risk, thus making it possible for the resident to be available for transition to greater independence and community integration at some future time.
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The Extent of Transition Planning for Independent Living and Community Integration
Dr. Amble’s review of the medical records found that 96% of residents had a current treatment plan, although for only 46% of these records was there documentation that the resident was involved in its formulation. A total of 55% of residents had documentation that assessed their potential for discharge. Treatment and discharge plans as well as other information in the record were used to determine whether there was evidence of transition planning that would lead to independent living and enhanced community integration. In order to assure that the proper materials in the medical record were reviewed, Dr. Amble asked the staff member assisting with the site visit to identify where in the record such documentation could be found.
Transition planning is essential if residents are to shift their orientation from the institution to the community. Typically included in such a plan are organized contacts with community-based service providers, including: housing services, psychosocial and vocational programs, and other community agencies and resources that will be part of the individual’s future outside of the institution to support independent community living. Residents’ ability to make the transition to community living is greatly enhanced by training and practice in the community of the basic skills needed for community living, such as: use of transportation, managing medication, meal preparation, shopping, and so on. However, when such skills are taught without any opportunity to practice their application in the community, they generally are not retained. Critical in transition planning is the identification of specific housing that is appropriate for the resident so that skills training and transition planning can be tailored to the specific needs of the individual.
After a careful review of the records, 98% did not show evidence of a process taking place that would realistically lead to independent living and community integration. In many instances, records regularly repeated goals/objectives from previous treatment plans from one update to another, and showed virtually no documented evidence that staff were attempting to identify appropriate housing or community living options that would allow residents to move out of the facility to independent living with services and supports. Interviews with residents were consistent with this observation; no real evidence of training and supervised practice for independent community living was reported.
Further evidence of a lack of transition planning was obtained directly from the medical record. The MDS form in the record provides an opportunity to note each residents’ anticipated date of discharge. Options on the form have changed over the years and not all IMDs use the same version of the form. However, Dr. Amble recorded data from the record review concerning the anticipated date to discharge for each resident. Checklist options on this form provide opportunities for staff to specify a time interval to discharge, such as 31 - 90 days, 181 days to 1 year, > 90 days, and so on. In some records, staff were provided space for write-in responses. In reviewing these records, Dr. Amble noticed the frequency with which staff selected the maximum possible date to discharge among the options given. This date ordinarily provided an anticipated date of indeterminate length, such as “> 90 days” or indicated “not at present.” He also noticed that such dates of indeterminate length were frequently checked from one updated MDS to the next. Dr. Amble noted one facility wrote the anticipated date to discharge as “not at
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present” for many years with no actual anticipated date to discharge. Table 11 (next page) summarizes this data.

As is shown in the table, 92% of responses indicated no specific anticipated date to discharge, with comments often included on the form, such as “discharge uncertain” or the maximum option checked on that particular form, such as “> 90 days.” Fixed anticipated time intervals to discharge were provided for only 6% of residents. These results make clear that comprehensive transition planning for independent community living is not actively taking place at the IMDs.

Table 11: Residents’ Anticipated Date to Discharge Using the Most Recent Minimum Data Set (MDS) Form

Anticipated Date to Discharge Categories No Anticipated Date to Discharge Provided (Responses included: “discharge uncertain”, “not at present”, “not at this time”, “unknown”, “uncertain”, “none”, “discharge status uncertain”, “> 1 year (maximum allowed on form)”, “> 90 days (maximum allowed on form)”, “not within the next 6 months”)

Frequency 111

Percent 92

Fixed Anticipated Time to Discharge Provided

7

6%

(Responses included: “1-2 years”, “181 days - 1 year”,

“31 - 90 days”)

None given (response left blank)

2

2%

No MDS completed

1

1%

Finally, the lack of transition planning and the pervasive indeterminate estimates of time to discharge were corroborated by residents in their interviews with Drs. Baranoski and Tebes. A resident’s spontaneous statement that “I want my own apartment” or “I want a place of my own” was routinely followed by some account of waiting years for an apartment, not knowing what was needed to initiate the transition process, a lack of clarity about the skills needed in order to leave, or confusion over whether such a move would take place.
Conclusion: y Evidence from multiple sources indicates that comprehensive transition planning for independent living and community integration rarely takes place in the IMDs. y The lack of transition planning is a significant barrier to independent living and community integration.

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A Final Note on the Availability of Community-Based Services and Supports that Foster Independence and Community Integration
It is widely known among mental health professionals and policymakers that one of the factors essential to enhanced independent living and community integration is the availability of community-based mental health services and supports. Without such resources, independence and community integration is simply not possible. As stated in the President’s New Freedom Commission report: “The lack of decent, safe, affordable, and integrated housing is one of the most significant barriers to full participation in community life for people with serious mental illnesses.”
This evaluation was not charged with examining the availability of community-based services and supports that foster independence and community integration. However, interviews with residents, reviews of court materials, and site visits to two community-based residential programs in Chicago indicated that several such programs currently exist that offer integrated housing options that would be appropriate for the vast majority of IMD residents.
SUMMARY AND CONCLUSIONS
This report describes a systematic professional evaluation of a representative sample of 121 residents of IMDs that was conducted by a team of mental health professionals from the Yale University School of Medicine. The team has considerable experience directly relevant to the evaluation.
The purpose of the evaluation was to determine whether residential services and programs in the IMDs are being provided in the most integrated setting appropriate to each resident’s disability, and whether with appropriate supports and services, residents who participated in the evaluation could live in more integrated community settings.
Over the past 50 years, the mental health field has increasingly emphasized a recoveryoriented perspective involving mental illness in which individuals move toward ever-increasing independence and community integration. As a result, institutional and more restrictive care settings are widely viewed among professionals as temporary and transitional for individuals with mental illness. During acute episodes when such settings may be necessary or, on occasion, when they are required for more extended periods, restrictive care settings also provide a basis for transition planning to support a person’s trajectory to independence and increased integration into the community. Current standards of mental health practice hold that individuals receiving care in such settings are entitled to ongoing reassessment of their potential for increased independence and community integration.
The primary results of this evaluation are as follows: 1) residents of IMDs are not currently integrated into their community on any measure of community integration -- physical, social, or psychological, 2) overall, approximately 85-90% of residents demonstrate a capacity for independent living that would enable them to live in the community given a level of services and supports typically available; 3) approximately 10-15% of all residents demonstrate a more limited capacity for independent functioning, thus making independent community living
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Finally, evidence from multiple sources, including interviews with residents, reviews of court materials, and site visits to two community-based residential programs in Chicago, indicated that community-based programs currently exist that offer integrated housing options that would be appropriate for the vast majority of IMD residents
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Cambridge University Press. Wirt, G. L. (1999). Causes of institutionalism: Patient and staff perspectives. Issues in Mental
Health Nursing, 20, 259-274. Wong, Y.I. & Solomon, P.L. (2002). Community integration of persons with psychiatric
disabilities in supportive independent housing: A conceptual model and methodological considersations. Mental Health Services Research, 4(1), 13-28. Wright, P. A., & Kloos, B. (2007). Housing environment and mental health outcomes: A levels of analysis perspective. Journal of Environmental Psychology, 27, 79-89.
33

Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 40 of 110

Appendix A Stratification by Geographic Region and Total Census

Table A: IMDs Stratified by Geographic Region and Total Census*

Total Census**

Chicago North

< 100

Belmont N H

Margaret Manor North

Geographic Region

Chicago South

North Suburban Chicago

South Suburban Chicago Bourbonnais Terrace

Downstate

Wincrest Nursing C

100 - 199 Bryn Mawr Care
Margaret Manor
Wilson Care

Columbus Manor
Monroe Pavilion Home Care
Sacred Heart Home

Abbott House
Bayside Terrace
Greenwood Care
Skokie Meadows

Kankakee Terrace

Pershing Estates
Sharon Health Care Woods

200 - 299

Central Plaza
Clayton Residential Home

Rainbow Beach Nursing Care

Lake Park Center

Thornton Heights Terrace

Grasmere Place

>400

Somerset Place

Albany Care

Lydia Healthcare Center

* IMDs in bold italics are those included in the evaluation by random selection. ** No facilities had a census of 300 - 400 residents.

34

Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 41 of 110

Appendix B

Illinois IMD Visit Schedule and Plan

IMD

Visit Dates: February 5, 6, 7 (T-Th) Schedule Census Sample

Sharon Health Care Woods

Feb. 5

152

11

3223 W. Richwoods Blvd.

Tues: 1-5

Peoria, IL 61604

(Travel 10-1)

309-685-5241

Bayside Terrace

Feb. 6

168

12

1100 South Lewis

Wed: 9-2

Waukegan, IL 60085

(Travel 2-3)

847-244-9099

Greenwood Care

Feb. 6

145

10

1406 N. Chicago Avenue

Wed: 3:30-7:30

Evanston, IL 60201

847-328-6503

Clayton Residential Home

Feb. 7

247

18

2026 North Clark Street

Thurs:9-4

Chicago, IL 60614

773-549-1840

Totals

712

51

IMD

Site Visit Dates: March 5, 6, 7 (W-F) Schedule Census Sample

Columbus Manor Res Center

Mar. 5

189

14

5107-21 West Jackson Blvd.

Wed: 10-4

Chicago, IL 60644

(Travel 4-5:30)

773-378-5490

Margaret Manor North

Mar. 5

99

7

940 West Cullom Avenue

Wed: 5:30-8:30

Chicago, IL 60613

773-525-9000

Somerset Place

Mar. 6

450

32

5009 N. Sheridan Road

Thurs: 9-9

Chicago, IL 60640

773-561-0700

Thornton Heights Terrace 160 West 10th Street

Mar. 7 Fri: 9-3

222

16

Chicago Heights, IL 60411

708-754-2220

Totals

960

69

Geographic Location Downstate
North Suburban Chicago
North Suburban Chicago
Chicago-North
Geographic Location
Chicago-South
Chicago-North
Chicago-North
South Suburban Chicago

35

Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 42 of 110

Appendix C

RESIDENT CODE SHEET Bayside Terrace, 1100 South Lewis, Waukegan, IL 60085 Census: 168 (+10% = 185) Residents to be interviewed: 12

Complete Random List of Numbers up to 185 32, 57, 61, 155, 39, 19, 84, 80, 163, 133, 5, 140, 131, 76, 143, 180, 173, 110, 75, 8, 74, 145, 66, 94, 9, 146, 115, 112, 181, 157, 156, 126, 51, 7, 127, 183, 118, 36, 120, 11, 46, 30, 150, 12, 87, 48, 130, 172, 38, 119, 60, 45, 24, 49, 37, 73, 53, 122, 117, 124, 174, 25, 153, 63, 70, 34, 99, 62, 85, 168, 78, 105, 125, 109, 22, 82, 58, 106, 65, 162, 56, 142, 81, 89, 129, 139, 169, 55, 167, 138, 147, 72, 161, 175, 144, 121, 177, 50, 97, 184, 135, 108, 2, 21, 28, 42, 123, 113, 35, 160, 149, 164, 103, 154, 68, 92, 3, 13, 136, 185, 23, 79, 100, 90, 1, 171, 71, 4, 134, 18, 33, 27, 67, 170, 77, 14, 96, 93, 6, 104, 59, 151, 165, 29, 128, 16, 31, 176, 166, 152, 41, 159, 158, 47, 91, 137, 83, 43, 148, 107, 15, 17, 114, 40, 102, 98, 132, 26, 101, 69, 178, 95, 54, 182, 111, 10, 52, 86, 44, 116, 179, 20, 64, 141, 88

Baranoski 32, 61, 39, 84, 163, 5, 131, 143, 173, 75, 74, 66, 9, 115, 181, 156, 51, 127, 118, 120, 46, 150, 87, 130, 38, 60, 24, 37, 53, 117, 174, 153, 70, 99, 85, 78, 125, 22, 58, 65, 56, 81, 129, 169, 167, 147, 161, 144, 177, 97, 135, 2, 28, 123, 35, 149, 103, 68, 3, 136, 23, 100, 1, 71, 134, 33, 67, 77, 96, 6, 59, 165, 128, 31, 166, 41, 158, 91, 83, 148, 15, 114, 102, 132, 101, 178, 54, 111, 52, 44, 179, 64, 88

Resident Code

Name

Tebes 57, 155, 19, 80, 133, 140, 76, 180, 110, 8, 145, 94, 146, 112, 157, 126, 7, 183, 36, 11, 30, 12, 48, 172, 119, 45, 49, 73, 122, 124, 25, 63, 34, 62, 168, 105, 109, 82, 106, 162, 142, 89, 139, 55, 138, 72, 175, 121, 50, 184, 108, 21, 42, 113, 160, 164, 154, 92, 13, 185, 79, 90, 171, 4, 18, 27, 170, 14, 93, 104, 151, 29, 16, 176, 152, 159, 47, 137, 43, 107, 17, 40, 98, 26, 69, 95, 182, 10, 86, 116, 20, 141

Resident Code

Name

36

Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 43 of 110

RESIDENT CODE SHEET

Clayton Residential Home, 2026 North Clark Street, Chicago, IL 60614

Census: 247 (+10% = 272) Residents to be interviewed: 18

Complete Random List of Numbers up to 272

183, 161, 89, 201, 136, 16, 110, 167, 156, 49, 214, 177, 150, 264, 10, 38, 85, 116, 193, 227, 99, 115, 64,

235, 237, 252, 149, 67, 78, 88, 251, 95, 56, 230, 130, 1, 131, 192, 139, 259, 121, 263, 271, 92, 4, 137,

169, 159, 266, 83, 232, 25, 48, 184, 114, 206, 223, 182, 179, 256, 142, 234, 199, 244, 254, 60, 104, 218,

93, 220, 74, 12, 269, 155, 231, 158, 123, 224, 8, 216, 203, 53, 189, 98, 152, 111, 52, 133, 166, 97, 268,

90, 250, 157, 243, 103, 144, 35, 61, 160, 129, 221, 163, 22, 17, 73, 96, 81, 205, 122, 32, 11, 57, 77, 153,

76, 86, 191, 44, 258, 247, 162, 43, 208, 239, 174, 219, 151, 33, 173, 55, 3, 257, 14, 119, 79, 9, 228, 68,

233, 70, 249, 106, 69, 59, 5, 188, 225, 7, 212, 140, 19, 178, 134, 202, 107, 261, 255, 187, 34, 229, 248,

196, 222, 42, 170, 186, 211, 50, 135, 146, 141, 242, 108, 253, 172, 171, 21, 209, 127, 112, 125, 2, 71,

210, 262, 51, 94, 47, 54, 113, 6, 62, 165, 37, 30, 40, 20, 41, 267, 147, 260, 87, 195, 101, 241, 213, 181,

198, 31, 226, 118, 168, 75, 215, 84, 236, 124, 65, 100, 23, 148, 66, 26, 29, 126, 143, 36, 200, 15, 154,

207, 204, 270, 13, 138, 128, 175, 132, 18, 39, 180, 117, 28, 105, 63, 238, 24, 176, 272, 185, 145, 240,

265, 80, 164, 102, 58, 109, 217, 197, 46, 45, 91, 82, 245, 120, 246, 72, 190, 194, 27

Baranoski

183, 161, 89, 201, 136, 16, 110, 167, 156, 49, 214, 177, 150, 264, 10, 38, 85, 116, 193, 227, 99, 115, 64,

235, 237, 252, 149, 67, 78, 88, 251, 95, 56, 230, 130, 1, 131, 192, 139, 259, 121, 263, 271, 92, 4, 137,

169, 159, 266, 83, 232, 25, 48, 184, 114, 206, 223, 182, 179, 256, 142, 234, 199, 244, 254, 60, 104, 218,

93, 220, 74, 12, 269, 155, 231, 158, 123, 224, 8, 216, 203, 53, 189, 98, 152, 111, 52, 133, 166, 97, 268,

90, 250, 157, 243, 103, 144, 35, 61, 160, 129, 221, 163, 22, 17, 73, 96, 81, 205, 122, 32, 11, 57, 77, 153,

76, 86, 191, 44, 258, 247, 162, 43, 208, 239, 174, 219, 151, 33, 173, 55, 3, 257, 14, 119, 79, 9, 228, 68,

233, 70, 249, 106, 69, 59, 5, 188, 225, 7, 212, 140, 19, 178, 134, 202, 107, 261, 255, 187, 34, 229, 248,

196, 222, 42, 170, 186, 211, 50, 135, 146, 141, 242, 108, 253, 172, 171, 21, 209, 127, 112, 125, 2, 71,

210, 262, 51, 94, 47, 54, 113, 6, 62, 165, 37, 30, 40, 20, 41, 267, 147, 260, 87, 195, 101, 241, 213, 181,

198, 31, 226, 118, 168, 75, 215, 84, 236, 124, 65, 100, 23, 148, 66, 26, 29, 126, 143, 36, 200, 15, 154,

207, 204, 270, 13, 138, 128, 175, 132, 18, 39, 180, 117, 28, 105, 63, 238, 24, 176, 272, 185, 145, 240,

265, 80, 164, 102, 58, 109, 217, 197, 46, 45, 91, 82, 245, 120, 246, 72, 190, 194, 27

Resident Code

Name

Tebes 183, 161, 89, 201, 136, 16, 110, 167, 156, 49, 214, 177, 150, 264, 10, 38, 85, 116, 193, 227, 99, 115, 64, 235, 237, 252, 149, 67, 78, 88, 251, 95, 56, 230, 130, 1, 131, 192, 139, 259, 121, 263, 271, 92, 4, 137, 169, 159, 266, 83, 232, 25, 48, 184, 114, 206, 223, 182, 179, 256, 142, 234, 199, 244, 254, 60, 104, 218, 93, 220, 74, 12, 269, 155, 231, 158, 123, 224, 8, 216, 203, 53, 189, 98, 152, 111, 52, 133, 166, 97, 268, 90, 250, 157, 243, 103, 144, 35, 61, 160, 129, 221, 163, 22, 17, 73, 96, 81, 205, 122, 32, 11, 57, 77, 153, 76, 86, 191, 44, 258, 247, 162, 43, 208, 239, 174, 219, 151, 33, 173, 55, 3, 257, 14, 119, 79, 9, 228, 68, 233, 70, 249, 106, 69, 59, 5, 188, 225, 7, 212, 140, 19, 178, 134, 202, 107, 261, 255, 187, 34, 229, 248,
37

Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 44 of 110

196, 222, 42, 170, 186, 211, 50, 135, 146, 141, 242, 108, 253, 172, 171, 21, 209, 127, 112, 125, 2, 71,

210, 262, 51, 94, 47, 54, 113, 6, 62, 165, 37, 30, 40, 20, 41, 267, 147, 260, 87, 195, 101, 241, 213, 181,

198, 31, 226, 118, 168, 75, 215, 84, 236, 124, 65, 100, 23, 148, 66, 26, 29, 126, 143, 36, 200, 15, 154,

207, 204, 270, 13, 138, 128, 175, 132, 18, 39, 180, 117, 28, 105, 63, 238, 24, 176, 272, 185, 145, 240,

265, 80, 164, 102, 58, 109, 217, 197, 46, 45, 91, 82, 245, 120, 246, 72, 190, 194, 27

Resident Code

Name

RESIDENT CODE SHEET Columbus Manor, 5107-21 West Jackson Blvd., Chicago, IL 60644
Census: 189 (+10% = 208) Residents to be interviewed: 14

Complete Random List of Numbers up to 208
57, 4, 22, 70, 60, 141, 80, 35, 129, 7, 192, 158, 45, 97, 132, 156, 203, 153, 208, 101, 110, 21, 96, 89, 102, 185, 43, 42, 207, 82, 103, 25, 32, 150, 196, 19, 165, 84, 91, 105, 12, 145, 154, 174, 168, 83, 204, 138, 190, 18, 151, 205, 180, 53, 191, 127, 139, 48, 69, 124, 77, 133, 76, 130, 147, 142, 46, 188, 90, 179, 85, 92, 86, 54, 134, 31, 27, 17, 73, 117, 87, 2, 182, 50, 8, 137, 167, 206, 159, 94, 23, 197, 198, 148, 74, 177, 152, 176, 199, 1, 14, 143, 186, 36, 99, 175, 13, 40, 170, 58, 183, 122, 59, 194, 81, 157, 20, 161, 66, 3, 52, 173, 62, 79, 15, 71, 88, 160, 163, 131, 38, 164, 140, 24, 78, 6, 166, 72, 136, 100, 30, 149, 126, 169, 108, 178, 109, 112, 5, 95, 106, 162, 9, 63, 68, 98, 26, 195, 200, 146, 111, 181, 16, 93, 104, 34, 193, 67, 41, 201, 144, 135, 172, 119, 114, 115, 28, 64, 51, 155, 123, 39, 29, 187, 75, 61, 125, 37, 128, 202, 44, 56, 120, 121, 65, 33, 171, 55, 47, 49, 107, 113, 184, 189, 11, 118, 116, 10

Baranoski
57, 22, 60, 80, 129, 192, 45, 132, 203, 208, 110, 96, 102, 43, 207, 103, 32, 196, 165, 91, 12, 154, 168, 204, 190, 151, 180, 191, 139, 69, 77, 76, 147, 46, 90, 85, 86, 134, 27, 73, 87, 182, 8, 167, 159, 23, 198, 74, 152, 199, 14, 186, 99, 13, 170, 183, 59, 81, 20, 66, 52, 62, 15, 88, 163, 38, 140, 78, 166, 136, 30, 126, 108, 109, 5, 106, 9, 68, 26, 200, 111, 16, 104, 193, 41, 144, 172, 114, 28, 51, 123, 29, 75, 125, 128, 44, 120, 65, 171, 47, 107, 184, 11, 116

Resident Code

Name

38

Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 45 of 110

Tebes
4, 70, 141, 35, 7, 158, 97, 156, 153, 101, 21, 89, 185, 42, 82, 25, 150, 19, 84, 105, 145, 174, 83, 138, 18, 205, 53, 127, 48, 124, 133, 130, 142, 188, 179, 92, 54, 31, 17, 117, 2, 50, 137, 206, 94, 197, 148, 177, 176, 1, 143, 36, 175, 40, 58, 122, 194, 157, 161, 3, 173, 79, 71, 160, 131, 164, 24, 6, 72, 100, 149, 169, 178, 112, 95, 162, 63, 98, 195, 146, 181, 93, 34, 67, 201, 135, 119, 115, 64, 155, 39, 187, 61, 37, 202, 56, 121, 33, 55, 49, 113, 189, 118, 10

Resident Code

Name

RESIDENT CODE SHEET Greenwood Care, 1406 N. Chicago Avenue, Evanston, IL 60201
Census: 145 (+10% = 160) Residents to be interviewed: 10

Complete Random List of Numbers up to 160 70, 152, 55, 29, 121, 4, 135, 124, 61, 92, 13, 42, 30, 97, 143, 73, 22, 31, 123, 110, 60, 95, 101, 94, 24, 38, 75, 117, 99, 34, 18, 69, 59, 11, 50, 85, 19, 12, 158, 5, 106, 67, 91, 104, 111, 98, 116, 52, 21, 64, 71, 17, 108, 25, 72, 46, 136, 32, 140, 26, 44, 81, 87, 78, 2, 126, 93, 90, 77, 139, 138, 86, 53, 125, 9, 154, 8, 151, 132, 48, 159, 157, 33, 128, 37, 58, 127, 28, 10, 89, 148, 133, 114, 23, 49, 119, 7, 145, 88, 51, 105, 79, 129, 47, 120, 131, 137, 36, 118, 63, 147, 54, 144, 115, 41, 43, 122, 15, 3, 134, 68, 150, 160, 146, 112, 1, 102, 83, 57, 141, 149, 153, 20, 14, 109, 84, 74, 82, 96, 39, 56, 76, 35, 65, 27, 66, 130, 6, 113, 45, 62, 16, 156, 142, 155, 107, 103, 80, 40, 100

Baranoski 70, 55, 121, 135, 61, 13, 30, 143, 22, 123, 60, 101, 24, 75, 99, 18, 59, 50, 19, 158, 106, 91, 111, 116, 21, 71, 108, 72, 136, 140, 44, 87, 2, 93, 77, 138, 53, 9, 8, 132, 159, 33, 37, 127, 10, 148, 114, 49, 7, 88, 105, 129, 120, 137, 118, 147, 144, 41, 122, 3, 68, 160, 112, 102, 57, 149, 20, 109, 74, 96, 56, 35, 27, 130, 113, 62, 156, 155, 103, 40

Resident Code

Name

39

Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 46 of 110

Tebes 152, 29, 4, 124, 92, 42, 97, 73, 31, 110, 95, 94, 38, 117, 34, 69, 11, 85, 12, 5, 67, 104, 98, 52, 64, 17, 25, 46, 32, 26, 81, 78, 126, 90, 139, 86, 125, 154, 151, 48, 157, 128, 58, 28, 89, 133, 23, 119, 145, 51, 79, 47, 131, 36, 63, 54, 115, 43, 15, 134, 150, 146, 1, 83, 141, 153, 14, 84, 82, 39, 76, 65, 66, 6, 45, 16, 142, 107, 80, 100

Resident Code

Name

RESIDENT CODE SHEET Margaret Manor North, 940 West Cullom Avenue, Chicago, IL 60613
Census: 99 (+10% = 109) Residents to be interviewed: 7

Complete Random List of Numbers up to 109
45, 106, 7, 1, 68, 99, 52, 102, 96, 94, 48, 63, 79, 73, 39, 23, 74, 103, 104, 64, 98, 35, 88, 61, 38, 62, 108, 78, 8, 76, 97, 4, 59, 107, 83, 92, 81, 13, 36, 89, 6, 3, 100, 105, 25, 31, 15, 30, 51, 17, 10, 26, 53, 93, 19, 34, 11, 5, 90, 101, 37, 58, 55, 50, 14, 22, 46, 84, 9, 86, 75, 12, 60, 28, 49, 32, 16, 69, 71, 40, 27, 85, 29, 41, 80, 57, 21, 20, 18, 42, 24, 43, 47, 2, 44, 91, 65, 109, 33, 56, 67, 72, 70, 54, 82, 66, 95, 87, 77

Baranoski
45, 7, 68, 52, 96, 48, 79, 39, 74, 104, 98, 88, 38, 108, 8, 97, 59, 83, 81, 36, 6, 100, 25, 15, 51, 10, 53, 19, 11, 90, 37, 55, 14, 46, 9, 75, 60, 49, 16, 71, 27, 29, 80, 21, 18, 24, 47, 44, 65, 33, 67, 70, 82, 95, 77

Resident Code

Name

Tebes
106, 1, 99, 102, 94, 63, 73, 23, 103, 64, 35, 61, 62, 78, 76, 4, 107, 92, 13, 89, 3, 105, 31, 30, 17, 26, 93, 34, 5, 101, 58, 50, 22, 84, 86, 12, 28, 32, 69, 40, 85, 41, 57, 20, 42, 43, 2, 91, 109, 56, 72, 54, 66, 87

Resident Code

Name

40

Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 47 of 110

RESIDENT CODE SHEET Sharon Health Care Woods, 3223 W. Richwoods Boulevard, Peoria, IL 61604
Census: 152 (+10% = 167) Residents to be interviewed: 11

Complete Random List of Numbers up to 167 30, 91, 106, 120, 135, 67, 88, 49, 136, 129, 79, 48, 141, 131, 18, 6, 39, 94, 47, 73, 86, 21, 37, 13, 119, 150, 160, 84, 64, 100, 25, 52, 118, 82, 157, 99, 19, 71, 53, 110, 32, 63, 112, 122, 17, 72, 162, 90, 78, 83, 146, 51, 38, 111, 28, 142, 24, 20, 124, 95, 10, 149, 87, 42, 57, 74, 134, 132, 117, 126, 155, 12, 65, 145, 68, 61, 54, 33, 4, 139, 40, 60, 23, 148, 101, 7, 55, 161, 125, 41, 109, 22, 114, 96, 144, 35, 147, 36, 107, 46, 137, 153, 154, 77, 45, 123, 159, 5, 108, 165, 62, 1, 130, 143, 164, 103, 76, 58, 156, 34, 26, 9, 11, 8, 15, 2, 116, 158, 152, 75, 102, 98, 138, 14, 56, 104, 85, 29, 80, 3, 93, 113, 27, 115, 44, 133, 89, 121, 43, 140, 59, 92, 16, 163, 97, 31, 69, 128, 127, 166, 66, 151, 105, 167, 50, 70, 81

Baranoski 30, 106, 135, 88, 136, 79, 141, 18, 39, 47, 86, 37, 119, 160, 64, 25, 118, 157, 19, 53, 32, 112, 17, 162, 78, 146, 38, 28, 24, 124, 10, 87, 57, 134, 117, 155, 65, 68, 54, 4, 40, 23, 101, 55, 125, 109, 114, 144, 147, 107, 137, 154, 45, 159, 108, 62, 130, 164, 76, 156, 26, 11, 15, 116, 152, 102, 138, 56, 85, 80, 93, 27, 44, 89, 43, 59, 16, 97, 69, 127, 66, 105, 50, 81

Resident Code

Name

Tebes 91, 120, 67, 49, 129, 48, 131, 6, 94, 73, 21, 13, 150, 84, 100, 52, 82, 99, 71, 110, 63, 122, 72, 90, 83, 51, 111, 142, 20, 95, 149, 42, 74, 132, 126, 12, 145, 61, 33, 139, 60, 148, 7, 161, 41, 22, 96, 35, 36, 46, 153, 77, 123, 5, 165, 1, 143, 103, 58, 34, 9, 8, 2, 158, 75, 98, 14, 104, 29, 3, 113, 115, 133, 121, 140, 92, 163, 31, 128, 166, 151, 167, 70

Resident Code

Name

41

Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 48 of 110
RESIDENT CODE SHEET Somerset Place, 5009 N. Sheridan Road, Chicago, IL 60640 Census: 450 (+10% = 495) Residents to be interviewed: 32
Complete Random List of Numbers up to 495
178, 348, 396, 347, 91, 337, 237, 452, 10, 489, 110, 428, 368, 409, 269, 420, 158, 96, 254, 81, 458, 19, 173, 434, 249, 13, 379, 85, 416, 58, 293, 230, 105, 447, 464, 225, 354, 200, 175, 453, 274, 63, 118, 438, 92, 317, 208, 2, 330, 315, 288, 264, 154, 378, 203, 37, 170, 34, 380, 89, 207, 297, 401, 14, 454, 461, 72, 29, 93, 16, 406, 68, 362, 90, 485, 8, 11, 479, 137, 167, 450, 418, 285, 182, 286, 79, 316, 281, 387, 433, 20, 266, 148, 9, 460, 55, 123, 480, 41, 169, 22, 15, 375, 229, 481, 463, 403, 300, 443, 222, 46, 45, 284, 30, 455, 283, 23, 181, 163, 94, 36, 442, 161, 52, 98, 130, 44, 350, 240, 119, 168, 18, 253, 425, 132, 492, 271, 397, 302, 59, 7, 80, 494, 256, 252, 339, 53, 466, 322, 457, 437, 493, 35, 371, 150, 67, 251, 431, 421, 196, 21, 278, 221, 204, 226, 66, 436, 319, 287, 176, 331, 334, 115, 194, 262, 351, 305, 292, 338, 413, 213, 336, 370, 57, 17, 415, 131, 50, 4, 325, 273, 268, 31, 159, 320, 33, 180, 234, 247, 291, 99, 258, 424, 244, 95, 32, 117, 394, 76, 125, 238, 459, 369, 382, 157, 147, 358, 120, 265, 87, 248, 114, 304, 228, 239, 491, 495, 469, 65, 440, 449, 429, 56, 100, 101, 257, 465, 179, 467, 116, 366, 279, 321, 444, 276, 162, 145, 97, 104, 160, 359, 307, 142, 333, 210, 183, 477, 172, 191, 303, 209, 177, 405, 146, 462, 439, 216, 412, 275, 352, 435, 474, 487, 156, 470, 134, 82, 407, 270, 488, 472, 310, 312, 192, 361, 102, 24, 410, 202, 296, 402, 231, 218, 373, 61, 242, 71, 309, 70, 306, 27, 77, 332, 219, 478, 404, 486, 111, 376, 374, 324, 215, 42, 282, 25, 484, 372, 129, 26, 364, 217, 411, 290, 390, 277, 298, 223, 112, 73, 108, 471, 128, 383, 346, 327, 255, 360, 224, 301, 363, 263, 385, 153, 289, 113, 430, 451, 39, 232, 197, 38, 272, 64, 482, 28, 386, 136, 422, 122, 241, 186, 250, 69, 74, 441, 205, 6, 341, 149, 448, 314, 227, 393, 121, 187, 243, 445, 220, 84, 133, 294, 212, 367, 490, 384, 135, 188, 400, 109, 389, 206, 199, 195, 144, 342, 245, 344, 426, 483, 1, 326, 236, 308, 166, 345, 12, 51, 456, 355, 349, 198, 164, 295, 47, 185, 83, 318, 40, 3, 75, 54, 395, 417, 88, 138, 381, 377, 5, 174, 60, 329, 126, 78, 323, 473, 340, 214, 343, 388, 139, 165, 151, 235, 233, 171, 399, 86, 103, 391, 190, 365, 267, 43, 476, 49, 419, 280, 398, 140, 201, 475, 328, 260, 414, 155, 468, 423, 48, 143, 152, 357, 62, 211, 392, 311, 259, 408, 246, 446, 189, 356, 124, 193, 107, 261, 427, 127, 353, 313, 432, 141, 106, 299, 184, 335
Baranoski
178, 396, 91, 237, 10, 110, 368, 269, 158, 254, 458, 173, 249, 379, 416, 293, 105, 464, 354, 175, 274, 118, 92, 208, 330, 288, 154, 203, 170, 380, 207, 401, 454, 72, 93, 406, 362, 485, 11, 137, 450, 285, 286, 316, 387, 20, 148, 460, 123, 41, 22, 375, 481, 403, 443, 46, 284, 455, 23, 163, 36, 161, 98, 44, 240, 168, 253, 132, 271, 302, 7, 494, 252, 53, 322, 437, 35, 150, 251, 421, 21, 221, 226, 436, 287, 331, 115, 262, 305, 338, 213, 370, 17, 131, 4, 273, 31, 320, 180, 247, 99, 424, 95, 117, 76, 238, 369, 157, 358, 265, 248, 304, 239, 495, 65, 449, 56, 101, 465, 467, 366, 321, 276, 145, 104, 359, 142, 210, 477, 191, 209, 405, 462, 216, 275, 435, 487, 470, 82, 270, 472, 312, 361, 24, 202, 402, 218, 61, 71, 70, 27, 332, 478, 486, 376, 324, 42, 25, 372, 26, 217, 290, 277, 223, 73, 471, 383, 327, 360, 301, 263, 153, 113, 451, 232, 38, 64, 28, 136, 122, 186, 69, 441, 6, 149, 314, 393, 187, 445, 84, 294, 367, 384, 188, 109, 206, 195, 342, 344, 483, 326, 308, 345, 51, 355, 198, 295, 185, 318, 3, 54, 417, 138, 377, 174, 329, 78, 473, 214, 388, 165, 235, 171, 86, 391, 365, 43, 49, 280, 140, 475, 260, 155, 423, 143, 357, 211, 311, 408, 446, 356, 193, 261, 127, 313, 141, 299, 335
42

Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 49 of 110

Resident Code

Name

Tebes
348, 347, 337, 452, 489, 428, 409, 420, 96, 81, 19, 434, 13, 85, 58, 230, 447, 225, 200, 453, 63, 438, 317, 2, 315, 264, 378, 37, 34, 89, 297, 14, 461, 29, 16, 68, 90, 8, 479, 167, 418, 182, 79, 281, 433, 266, 9, 55, 480, 169, 15, 229, 463, 300, 222, 45, 30, 283, 181, 94, 442, 52, 130, 350, 119, 18, 425, 492, 397, 59, 80, 256, 339, 466, 457, 493, 371, 67, 431, 196, 278, 204, 66, 319, 176, 334, 194, 351, 292, 413, 336, 57, 415, 50, 325, 268, 159, 33, 234, 291, 258, 244, 32, 394, 125, 459, 382, 147, 120, 87, 114, 228, 491, 469, 440, 429, 100, 257, 179, 116, 279, 444, 162, 97, 104, 359, 142, 210, 477, 191, 209, 405, 462, 216, 275, 435, 487, 470, 82, 270, 472, 312, 361, 24, 410, 296, 231, 373, 242, 309, 306, 77, 219, 404, 111, 374, 215, 282, 484, 129, 364, 411, 390, 298, 112, 108, 128, 346, 255, 224, 363, 385, 289, 430, 39, 197, 272, 482, 386, 422, 241, 250, 74, 205, 341, 448, 227, 121, 243, 220, 133, 212, 490, 135, 400, 389, 199, 144, 245, 426, 1, 236, 166, 12, 456, 349, 164, 47, 83, 40, 75, 395, 88, 381, 5, 60, 126, 323, 340, 343, 139, 151, 233, 399, 103, 190, 267, 476, 419, 398, 201, 328, 414, 468, 48, 152, 62, 392, 259, 246, 189, 124, 107, 427, 353, 432, 106, 184

Resident Code

Name

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Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 50 of 110

RESIDENT CODE SHEET Thornton Heights Terrace, 160 West 10th Street, Chicago Heights, IL 60411
Census: 222 (+10% = 244) Residents to be interviewed: 16

Complete Random List of Numbers up to 244
82, 32, 189, 30, 164, 39, 192, 111, 217, 96, 53, 237, 103, 117, 48, 121, 154, 148, 131, 36, 57, 220, 142, 90, 98, 181, 113, 129, 232, 110, 133, 9, 45, 37, 17, 41, 194, 87, 183, 108, 224, 243, 236, 95, 136, 176, 116, 79, 173, 46, 191, 125, 63, 226, 190, 55, 69, 47, 34, 19, 244, 86, 209, 132, 120, 223, 135, 177, 153, 106, 97, 180, 60, 44, 137, 61, 50, 168, 72, 64, 77, 204, 198, 5, 35, 214, 145, 211, 161, 13, 12, 20, 208, 215, 197, 66, 138, 23, 49, 139, 162, 150, 210, 2, 166, 199, 203, 15, 140, 62, 73, 75, 128, 65, 231, 18, 4, 221, 156, 122, 240, 24, 8, 59, 207, 159, 28, 163, 81, 21, 239, 188, 101, 27, 99, 234, 14, 76, 169, 78, 93, 3, 84, 43, 42, 175, 212, 7, 167, 1, 118, 152, 67, 126, 92, 219, 115, 83, 196, 229, 218, 147, 56, 91, 58, 107, 52, 10, 143, 174, 165, 22, 241, 40, 157, 238, 216, 51, 201, 141, 68, 112, 202, 105, 71, 151, 146, 225, 29, 213, 222, 230, 193, 6, 33, 187, 130, 11, 134, 179, 184, 102, 38, 155, 172, 114, 70, 80, 158, 109, 124, 88, 160, 89, 228, 127, 54, 178, 186, 100, 206, 233, 185, 123, 74, 85, 242, 26, 200, 119, 25, 31, 94, 195, 205, 170, 182, 227, 171, 149, 144, 104, 235, 16
Baranoski
82, 189, 164, 192, 217, 53, 103, 48, 154, 131, 57, 142, 98, 113, 232, 133, 45, 17, 194, 183, 224, 236, 136, 116, 173, 191, 63, 190, 69, 34, 244, 209, 120, 135, 153, 97, 60, 137, 50, 72, 77, 198, 35, 145, 161, 12, 208, 197, 138, 49, 162, 210, 166, 203, 140, 73, 128, 231, 4, 156, 240, 8, 207, 28, 81, 239, 101, 99, 14, 169, 93, 84, 42, 212, 167, 118, 67, 92, 115, 196, 218, 56, 58, 52, 143, 165, 241, 157, 216, 201, 68, 202, 71, 146, 29, 222, 193, 33, 130, 134, 184, 38, 172, 70, 158, 124, 160, 228, 54, 186, 206, 185, 74, 242, 200, 25, 94, 205, 182, 171, 144, 235

Resident Code

Name

Tebes
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Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 51 of 110

32, 30, 39, 111, 96, 237, 117, 121, 148, 36, 220, 90, 181, 129, 110, 9, 37, 41, 87, 108, 243, 95, 176, 79, 46, 125, 226, 55, 47, 19, 86, 132, 223, 177, 106, 180, 44, 61, 168, 64, 204, 5, 214, 211, 13, 20, 215, 66, 23, 139, 150, 2, 199, 15, 62, 75, 65, 18, 221, 122, 24, 59, 159, 163, 21, 188, 27, 234, 76, 78, 3, 43, 175, 7, 1, 152, 126, 219, 83, 229, 147, 91, 107, 10, 174, 22, 40, 238, 51, 141, 112, 105, 151, 225, 213, 230, 6, 187, 11, 179, 102, 155, 114, 80, 109, 88, 89, 127, 178, 100, 233, 123, 85, 26, 119, 31, 195, 170, 227, 149, 104, 16

Resident Code

Name

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Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 52 of 110

Appendix D

IMD Resident Professional Evaluation Interview

IMD: _______________ Date: ________ Time: ________

Resident Code: _______

Hello, my name is Dr. _________. I am a psychologist from the Yale University School of Medicine and I am here to ask whether you would be willing to talk to me for a few minutes about how you are doing and your experiences here at ________ and in the surrounding neighborhood. We will be interviewing over 100 residents from all over the state who live in places like _________. I would need about half hour or so or your time.

I’ve been asked to talk to you today by a group of people, including the ACLU of Illinois, who are advocating in court for people who live here and in other places like this. The case focuses on whether Illinois provides services, including housing and other opportunities, to help integrate into the community people who live here and in places like this.

Now, there are a few things you should know about our talking together. If you agree to talk to me, we will also be reviewing your records. I will not share what you tell me or what we learn about you with anyone who works here or with the general public, and will not include your name on this survey interview. I will only give the information to the lawyers in the case and to the court and then summarize it, along with information from other people we are interviewing, in a report that does not include your name. I am really interested in your opinions, and until we get to the very end, there are no right or wrong answers to the questions I will be asking you. It is your opinion that I am most interested in. Finally, you should know that you can stop the interview at any time.

Now, I want to go over what I said to make sure you understand. I will be asking you questions about how you are doing and your experiences here and in the surrounding neighborhood. This will include information about opportunities you may have had to be involved in the community. I will share your information only with the lawyers in the case and the court, but not with anyone here, unless, I have concerns about your safety or the safety of others. Any information you give me will not be stored with your name on it, and what we learn from you and other people we interview will be summarized in a report that will be given to the lawyers in the case and the court. And, finally, your decision to speak with me is voluntary, and you can stop at any time.

Now, would you be willing to talk with me? __ (Check if “yes.”) Do you have any questions?

Background

1. How long have you lived here at __________________? __________________________

2. Where did you live just before coming here? _____________________________________

3. What type of place was that (home, apartment, hospital, residential setting, shelter, or a place similar to this one)? ____________________________________________________________

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4. Who did you live with? ______________________________________________________

5. Have you ever lived independently in the community? Y N ________________________

6. Are you currently in any kind of mental health or psychiatric treatment? ________________
7. If so, where do you go for treatment? ____________________________________________
8. What was the last time you stayed overnight in a psychiatric hospital, even for just a day? _____________________________________________________________________________

9. In the past 10 years, about how many separate times have you stayed in a psychiatric hospital overnight? _____________________________________________________________
10. Over the past year, have you tried to physically harm yourself or someone else? Y N ______________________________________________________________________________

Here’s a few more questions about your background.

11. What is your current marital status? ____________________________________________

12. What is the highest level of education that you have had the opportunity to complete? ____

13. In the past, what was your most recent employment? _______________________________

PhI/BI

Now I’m going to ask you some questions and I’d like you to use the scale on Card 1 and tell me which number or word (like 0 for Never, 2 for Sometimes, and so on) that best describes how often you did various activities in the past month. Next, I will ask you whether you usually do the activity alone, or with someone else from _____ or with persons who live outside of _____. Do you have any questions? OK, let’s start. During the past month, please tell me how often you have been involved in any of the following activities.

0 =

1 =

2 =

3 =

Never Rarely Sometimes Often

4 = Very Often

A = Usually Alone

B = Usually With Others Here

C = Usually With Others Outside
of Here

1. Going to a shopping area.

0123 4 A

B

C

2. Going to movies or concerts.

0123 4 A

B

C

3. Going to restaurants, bars, or taverns.

0123 4 A

B

C

4. Going to sports events.

0123 4 A

B

C

5. Playing or participating in sports outside of this 0 1 2 3

4 A

B

C

building.

6. Going to a community center. (Do not code

0 123

4 A

B

C

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Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 54 of 110

treatment programs or therapist/doctor visits.)

7. Attending church or another place of worship.

0123 4 A

B

C

8. Going to a park or museum.

0123 4 A

B

C

9. Taking a walk outside.

0123 4 A

B

C

10. Going to your job or volunteer activity.

0123 4 A

B

C

PsI

IMD Now I am going to ask you a few questions about the place you are currently living, ______. Please answer each question on a 5 point scale as shown on Card 2 in front of you. So, for example, if I read to you this question “I like living at ___”, I’d like you to think of the question from your point of view -- YOU like living at ____. Then you would give an answer that ranges from 1 (Strongly Disagree) to 5 (Strongly Agree) or somewhere in between. OK, let’s start.

1 = Strongly Disagree

2 = Disagree

3 = Neither Disagree/ Nor
Agree

4 = Agree

5 = Strongly Agree

1. Overall, I am very attracted to living here at ___.

1 2 3 4 5

2. I feel like I belong here at ___.

1 2 3 4 5

3. I visit with other people who live here in their apartments.

1 2 3 4 5

4. The friendships and associations I have with other people here at ___ mean a lot to me.

1 2 3 4 5

5. Given the opportunity, I would like to move out of this place.

1 2 3 4 5

6. If the people here at ___ were planning something, I’d think of it as something “we” were doing rather than what “they” were doing.

1 2 3 4 5

7. If I needed advice about something, I could go to someone living here at 1 2 3 4 5 ___.

8. I think I agree with most people here at ___ about what is important in life.

1 2 3 4 5

9. I believe other people living here at ___ would help me in an emergency.

1 2 3 4 5

10. I feel loyal to the people here at ___.

1 2 3 4 5

11. I borrow things and exchange favors with other people who live here.

1 2 3 4 5

12. I would be willing to work together with others who live here on something to improve this place.

1 2 3 4 5

13. I plan to remain a resident of this place for a number of years.

1 2 3 4 5

14. I like to think of myself as similar to the people who live here at ___.

1 2 3 4 5

15. I rarely have other people who live here at ___ over to my apartment to 1 2 3 4 5 visit.

16. A feeling of fellowship runs deep between me and other people who live in this place.

1 2 3 4 5

17. I regularly stop and talk with people who live here at ___.

1 2 3 4 5

18. Living in ___ gives me a sense of community.

1 2 3 4 5

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Neighborhood Now I will be asking you about the neighborhood outside of ___. Again, please answer each question as shown on Card 2 in front of you and think of the question from YOUR point of view.

1 = Strongly Disagree

2 = Disagree

3 = Neither Disagree/ Nor
Agree

4 = Agree

5 = Strongly Agree

1. Overall, I am very attracted to living in the neighborhood outside of __.. 1 2 3 4 5

2. I feel like I belong to this neighborhood.

1 2 3 4 5

3. I visit with neighbors who live outside of here in their homes.

1 2 3 4 5

4. The friendships and associations I have with other people in this neighborhood mean a lot to me.

1 2 3 4 5

5. Given the opportunity, I would like to move out of this neighborhood. 1 2 3 4 5

6. If the people in my neighborhood were planning something, I’d think of 1 2 3 4 5 it as something “we” were doing rather what than “they” were doing.

7. If I needed advice about something, I could go to someone in the neighborhood outside of ___.

1 2 3 4 5

8. I think I agree with most people in this neighborhood about what is important in life.

1 2 3 4 5

9. I believe my neighbors who live outside of here would help me in an emergency.

1 2 3 4 5

10. I feel loyal to the people in this neighborhood.

1 2 3 4 5

11. I borrow things and exchange favors with the neighbors outside of here. 1 2 3 4 5

12. I would be willing to work together with others on something to improve my neighborhood.

1 2 3 4 5

13. I plan to remain a resident of this neighborhood for a number of years. 1 2 3 4 5

14. I like to think of myself as similar to the people who live in this neighborhood, the area that surrounds ___.

1 2 3 4 5

15. I rarely have neighbors who live outside of ___ over to my apartment to 1 2 3 4 5 visit.

16. A feeling of fellowship runs deep between me and other people in this neighborhood, the area outside of ___.

1 2 3 4 5

17. I regularly stop and talk with people in my neighborhood, the area outside of ___.

1 2 3 4 5

18. Living in this neighborhood gives me a sense of community.

1 2 3 4 5

SI
IMD Now here are a few more questions about the place you are living, ______. This time, please answer how often a certain situation happens. Turn to Card 3 and use the scale that ranges from 0 to 4 as shown on the card in front of you.

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0 = Never

1 = Rarely

2 = Occasionally 3 = Fairly Often 4 = Frequently

1. How often have you said hello or waved to someone who lives here at ___.

0 1 2 3 4

2. How often have you received a ride from someone who lives here?

0 1 2 3 4

3. How often have you gone on a social outing with someone who lives here?

0 1 2 3 4

4. How often have you discussed this place, _____, with someone who lives here?

0 1 2 3 4

5. How often have you taken care of a someone’s apartment who lives here at ___?

0 1 2 3 4

6. How often have you been told of an event by someone who lives here at 0 1 2 3 4 ___?

7. How often have you been invited into someone apartment who lives here at ___?

0 1 2 3 4

8. How often have you assisted someone who lives here with a household 0 1 2 3 4 task?

9. How often have you talked with someone who lives here about personal 0 1 2 3 4 issues?

10. How often have you borrowed things from someone who lives here?

0 1 2 3 4

11. How often have you discussed home maintenance with someone who lives here?

0 1 2 3 4

12. How often have you told someone who lives here about professional services used?

0 1 2 3 4

13. How often have you had a conversation in the hall with someone who lives here?

0 1 2 3 4

Neighborhood Now just like the last time, I’m going to ask you some similar questions about the neighborhood that is outside of here. Please continue using the same Card 3 to answer these questions, too.

0 = Never

1 = Rarely

2 = Occasionally 3 = Fairly Often 4 = Frequently

1. How often have you said hello or waved to a neighbor who lives outside 0 1 2 3 4 of here?

2. How often have you received a ride from a neighbor who lives outside of here?

0 1 2 3 4

3. How often have you gone on a social outing with a neighbor from outside of ___?

0 1 2 3 4

4. How often have you discussed the neighborhood outside of here with a 0 1 2 3 4 neighbor?

5. How often have you taken care of the house of a neighbor who lives outside of here?

0 1 2 3 4

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6. How often have you been told of an event by a neighbor?

0 1 2 3 4

7. How often have you been invited into the home of a neighbor who lives 0 1 2 3 4 outside of here?

8. How often have you assisted a neighbor with a household task?

0 1 2 3 4

9. How often have you talked with a neighbor who lives outside of here about personal issues?

0 1 2 3 4

10. How often have you borrowed things from a neighbor who lives outside 0 1 2 3 4 of here?

11. How often have you discussed home maintenance with a neighbor?

0 1 2 3 4

12. How often have you told a neighbor who lives outside of here about professional services used?

0 1 2 3 4

13. How often have you had a conversation on the street with a neighbor? 0 1 2 3 4

HC
Now I have a few questions to ask you about the choice you had in this housing. Please turn to Card 4 and answer on a scale from 0 to 4.

0 = No Choice At All

1 = Almost No Choice

2 = Some Choice

3 = A Fair Amount of Choice

4 = A Great Deal of Choice

1. How much choice did you have over the neighborhood you moved into? 2. How much choice did you have over the specific place you moved into? 3. How much choice did you have over who you live with (living alone)?

0 1 2 3 4 0 1 2 3 4 0 1 2 3 4

OK, now here are a few more.

1. How much choice did you have over decorating and furnishing?

0 1 2 3 4

2. How much choice did you have over when visitors can come over?

0 1 2 3 4

3. How much choice did you have over having overnight guests?

0 1 2 3 4

4. How much choice do you have over whether you can use alcohol?

0 1 2 3 4

5. How much choice do you have over having a pet?

0 1 2 3 4

6. How much choice do you have over who has a key to your place other than your landlord and housemate?

0 1 2 3 4

7. How much choice do you have over whether you or someone else takes 0 1 2 3 4 care of the maintenance?

8. How much choice do you have over having a yard or a garden?

0 1 2 3 4

9. How much choice do you have over when case workers can come over? 0 1 2 3 4

10. How much choice do you have over having children around the place you live?

0 1 2 3 4

11. How much choice do you have over whether you can lock your room

0 1 2 3 4

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Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 58 of 110

doors?

12. How much choice do you have over whether or not you must participate 0 1 2 3 4 in mental health services to stay in the place you live?

13. How much choice do you have over purchasing food you want?

0 1 2 3 4

14. How much choice do you have over being able to come and go at any time without having to notify people?

0 1 2 3 4

15. How much choice do you have over when to cook meals and what you can eat?

0 1 2 3 4

16. How much choice do you have over whether you lived in a building where other consumers live?

0 1 2 3 4

17. How much choice do you have over what floor your place is on?

0 1 2 3 4

RS
Now I’d like to ask you a few general questions about how satisfied you are with _____ and the surrounding neighborhood. Please turn to Card 5 and respond from 1 to 5 using the scale.

1 = Very Dissatisfied

2 = Slightly Dissatisfied

3 = Neither

4 = Fairly Satisfied

5 = Very Satisfied

1. How satisfied are you with this neighborhood as a place to live? 2. How satisfied are you with __________ as a place to live? 3. How satisfied do you think you would be if you could live independently in an apartment with all the supports that you need?
(Take response cards back.)

1 2 3 4 5 1 2 3 4 5 1 2 3 4 5

AF
OK. Now I have a few questions about who has responsibility for taking care of certain things.

1. Who handles and organizes your money? That is, who does things like write out checks,

decide whether or not you can afford something?

_____ Manages own (own responsibility)

(3)

_____ Gets some help in managing money (shared responsibility)

(2)

_____ Someone else manages money (other’s responsibility)

(1)

2. Who keeps the residence neat and clean? Does someone else help with the cleaning?

_____ Does own cleaning (own responsibility)

(3)

_____ Gets some help in cleaning (shared responsibility)

(2)

_____ Someone else does most of the cleaning (other’s responsibility)

(1)

3. Who plans and prepares your meals?

_____ Does own (own responsibility)

(3)

_____ Gets some help in meal planning and preparation (shared responsibility) (2)

_____ Someone else does most of the meal planning and

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Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 59 of 110

preparation (other’s responsibility)

(1)

4. Who makes arrangements for appointments for your medical, dental, or psychological needs

(i.e., visits to doctor, dentist, social worker, etc.)?

_____ Does own (own responsibility)

(3)

_____ Gets some help with health care (shared responsibility)

(2)

_____ Someone else is responsible for most of the person’s health care

(other’s responsibility)

(1)

5. Who organizes your daily schedule for your involvement in community activities (i.e.,

education, work, social or day treatment programs, etc.)?

_____ Organizes own schedule (own responsibility)

(3)

_____ Gets some help organizing schedule (shared responsibility)

(2)

_____ Someone else organizes schedule most of the time (other’s responsibility) (1)

6. Who plans and organizes the social and recreational activities in which you are involved?

_____ Plans and organizes own (own responsibility)

(3)

_____ Gets help with planning and organizing social-recreational activities

(shared responsibility)

(2)

_____ Someone else plans and organizes social and recreational activities most

of the time (other’s responsibility)

(1)

Now, here are a few questions about any medications you are taking.

7. Who is responsible for your medication?

_____ Is completely responsible for obtaining prescription and taking

own meds (own responsibility)

(3)

_____ Do you have help with someone getting your medication, getting your

prescription refilled, and taking your medication (shared responsibility) (2)

_____ Someone else gets the medication, takes the prescription to be refilled,

and gives out the medication (other’s responsibility)

(1)

8. What would you do if you ran out of medication? _______________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________

ADLs

Now I have a couple of more questions. Some of these things I’m going to ask you about will probably seem pretty easy to do, but I need to ask everyone these questions.

ACTIVITIES
POINTS (1 OR 0)

INDEPENDENCE
(1 POINT)
NO supervision, direction, or personal

DEPENDENCE
(0 POINTS)
WITH supervision, direction,

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Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 60 of 110

assistance

personal assistance, or total care

TRANSFERRING (1 POINT) Moves in and out of bed or (0 POINTS) Needs help in moving

chair unassisted. Mechanical

from bed to chair or requires a

POINTS: _______ transferring aids are acceptable.

complete transfer.

FEEDING

(1 POINT) Gets food from plate into

mouth without help. Preparation of

POINTS: _______ food may be done by another person.

(0 POINTS) Needs partial or total help with feeding or requires parenteral feeding.

DRESSING
POINTS: _______

(1 POINT) Gets clothes from closets and drawers and puts on clothes and outer garments complete with fasteners. May have help tying shoes.

(0 POINTS) Needs help with dressing self to be completely dressed.

BATHING
POINTS: _______

(1 POINT) Bathes self completely or needs help in bathing only a single part of the body such as the back, genital area, or disabled extremity.

(0 POINTS) Needs help with bathing more than one part of the body, getting in or out of the tub or shower. Requires total bathing.

TOILETING

(1 POINT) Goes to toilet, gets on and (0 POINTS) Needs help transferring

off, arranges clothes, cleans genital area to the toilet, cleaning self or uses

POINTS: _______ without help.

bedpan or commode.

CONTINENCE (1 POINT) Exercises complete self control over urination and defecation.
POINTS: _______

(0 POINTS) Is partially or totally incontinent of bowel or bladder.

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MMS

Now I am going to ask a few different kinds of questions. Some are easy and some harder. Just do your best.

Patient Score _______ _______ _______
_______
_______
_______ _______ _______ _______ _______ _______ _______

Maximum Score 5 5 3
5
3
2 1 3 1 1 1 30

Orientation

What is the – (year) (season) (date) (day) (month)?

Where are we – (country) (state) (county) (city) (clinic)?

Registration

Name three objects, allotting one second to say each one. Then ask the patient to name all three objects after you have said them. Give one point for each correct answer. Repeat them until he hears all three. Count trials and record number.

APPLE

BOOK

_____________

COAT

Number of Trials

Attention and Calculation

Begin with 100 and count backward by 7 (stop after five answers) 93, 86, 79, 72, 65. Score one point for each correct answer. If the patient will not perform this task, ask the patient to spell “WORLD” backward (DLROW). Record the patient’s spelling: _______________. Score one point for each correctly place letter.

Recall

Ask the patient to repeat the objects below. Give one point for each correct answer.

APPLE

BOOK

COAT

Language

Naming: Show a pencil and a watch and ask the patient to name them.

Repetition: Repeat the following: “No ifs, ands, or buts.”

Three-Stage Command: Follow the three-stage command. “Take a paper on your right hand, fold it in half, and put it on the table.”

Reading: Read and obey the following: “Close your eyes” (show the patient the item written on reverse side).

Writing: Write a sentence (on reverse side). It must contain a subject and verb and make sense. Correct grammar and punctuation are not necessary.

Copying: Copy the design of the intersecting pentagons (on reverse side). All 10 angles must be present and two must intersect to score 1 point. Tremor and rotation are ignored.

Total Score Possible

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Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 62 of 110
CLOSE YOUR EYES
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WRITE A SENTENCE
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Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 64 of 110
COPY DESIGN
58

Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 65 of 110

BPRS

Directions: Circle the appropriate number to represent the level of severity of each symptom. Use the attached scoring guidelines.

0 = Not Present

1 = Very Mild

2 = Mild

3 = Moderate

4 = Moderately
Severe

5 = Severe

6 = Extremely
Severe

1. Somatic concern – preoccupation with physical health, fear of 0 1 2 3 4 physical illness, hypochondriases.

5 6

2. Anxiety – worry, fear, over-concern for present or future.

0 1 2 3 4 5 6

3. Emotional withdrawal – lack of spontaneous interaction, isolation, deficiency in relating to others.

0 1234

5 6

4. Conceptual disorganization – thought process confused, disconnected, disorganized, disrupted.

0 1234

5 6

5. Guilt feelings – self-blame, shame, remorse for past behavior. 0 1 2 3 4 5 6

6. Tension – physical and motor manifestations or nervousness, over activation, tension.

0 1234

5 6

7. Mannerisms and posturing – peculiar, bizarre unnatural motor 0 1 2 3 4 behavior (not including tic).

5 6

8. Grandiosity – exaggerated self-opinion, arrogance, conviction of unusual power or abilities.

0 1234

5 6

9. Depressive mood – sorrow, sadness, despondency, pessimism. 0 1 2 3 4

5 6

10. Hostility – animosity, contempt, belligerence, disdain for others.

0 1234

5 6

11. Suspiciousness – mistrust, belief that others harbor malicious or discriminatory intent.

0 1234

5 6

12. Hallucinatory behavior – perceptions without normal external 0 1 2 3 4 stimulus correspondence.

5 6

13. Motor retardation – slowed weakened movements or speech, reduced body tone.

0 1234

5 6

14. Uncooperativeness – resistance, guardedness, rejection of authority.

0 1234

5 6

15. Unusual thought content – unusual, odd, strange, bizarre thought content.

0 1234

5 6

16. Blunted affect – reduced emotional tone, reduction in normal intensity of feeling, flatness.

0 1234

5 6

17. Excitement – heightened emotional tone, agitation, increased reactivity.

0 1234

5 6

18. Disorientation – confusion or lack of proper association for person.

0 1234

5 6

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RFS (Adapted as Skills for Independent Living Scale)

Self-Care Functioning (management of household tasks, self care, safety) Lacking independent living/selfcare skills that threaten health and safety; 24- hour support
needed
Marked limitations in independent living/self-care skills; frequent and ongoing
support needed
Some independent living/selfcare skills; some regular support
needed
Moderately self-sufficient with adequate independent living and
self-care skills; minimal ongoing support needed
Generally self-sufficient with good independent living and self-care skills; no ongoing
support needed

SC Score
1 2 3 4 5

Social Functioning (relatedness, capacity to engage others,
friendships, family, social networks)
Severely isolated or withdrawn from others; extremely diminished capacity to engage others because of deviant or unusual behavior; extreme difficulty in establishing effective social relationships
Marked isolation and withdrawal from others; diminished capacity to engage others because of deviant or unusual behavior; difficulty in establishing effective social relationships
Limited interpersonally; limited range of successful and appropriate interactions with others; often no significant social relationships in the care setting or the community
Adequate interpersonal relationships; moderate ability to engage others; moderately effective in establishing social relationships in the care setting or the community
Generally positive interpersonal relationships; generally effective in establishing social relationships in the care setting and the community

SF Score
1 2 3 4 5

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Appendix E

IMD Resident Medical Record Review Protocol

IMD: _________________________ Date: ____________

Resident Code: _________

Gender: ________ Age: ________ Race/Ethnicity: ________ Current GAF: ________

Medications: ____________________________ ____________________________________

_______________________________________ ____________________________________

_______________________________________ ____________________________________

1. Is there a current treatment plan? Y N

Date of Plan:_________________

Frequency of treatment plan update? _______________________________________

Is this a single discipline care plan (ie. a nursing care plan) or a multi-disciplinary plan?

Note:_________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

Documentation in the treatment plan that the patient was involved in its formulation? Y N 2. Does it specify a psychiatric diagnosis? Y N
Axis I: _______________________________________________________________ ________________________________________________________________
Axis II:__________________________________ __________________________________
Axis III: (below) Axis IV:__________________________________ Axis V:___________________________________ Note:_________________________________________________________________________ ______________________________________________________________________________

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Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 68 of 110

3. Does it specify evidence of any current medical conditions? Y N Note: ________________________________________________________________________ _____________________________________________________________________________

4. According to the treatment plan or medical documentation in the present chart, do the treatment requirements for the patient’s medical condition(s) prevent the patient from being able to live independently with support? Y N

Condition

Treatment

Requires present placement Y N

5. Does the treatment plan specify any concerns about risk to self or other?

Note: ________________________________________________________________________

_____________________________________________________________________________

6. Does the treatment plan specify the person’s current functioning and why the person requires the present level of care? Y N

Note:_________________________________________________________________________

______________________________________________________________________________

7. Is there a discharge plan? Y N

What date is on the discharge plan? ____________

Date discharge is anticipated? ____________________

8. Does the current treatment plan or the discharge plan specify a process leading to independent living with support? Y N

Note: ________________________________________________________________________

_____________________________________________________________________________

______________________________________________________________________________

9. Does the current treatment plan or the discharge plan indicate the person’s current preference for community living? Y N

Note: ________________________________________________________________________

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Case 1:05-cv-04673 Document 190-3 Filed 09/08/2008 Page 69 of 110
_____________________________________________________________________________ 10. Is there information in the treatment plan, discharge plan, or available medical record that provides the date of the person’s last hospitalization? Y N Date of most recent discharge? ______________ Notes:
63

 
 Case: 1:05-cv-04673 Document #: 326 Filed: 09/29/10 Page 1 of 24 PageID #:6760

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

ETHEL WILLIAMS, et a!., Plaintiffs,
vs.
PAT QUINN, et a!., Defendants.

)

)

)

)

No. 05 C 4673

)

)

)

Judge William T. Hart

)

Magistrate Judge Morton Denlow

)

)

)

)

CONSENT DECREE

Case: 1:05-cv-04673 Document #: 326 Filed: 09/29/10 Page 2 of 24 PageID #:6761
)

Case: 1:05-cv-04673 Document #: 326 Filed: 09/29/10 Page 3 of 24 PageID #:6762
TABLE OF CONTENTS INTRODUCTION AND BACKGROUND ............................................................................... 1 DECREE........................................................................................................................................ 2 I. JURISDICTION ......................................................................................................................... 2 II. PURPOSE.................................................................................................... 2 ill. CLASS DEFINITION ............................................................................................................. 2 IV. DEFINITION OF TERMS ...................................................................................................... 2 V. THE MENTAL HEALTH SERVICES SYSTEM .................................................................... 7 VI. INDIVIDUALIZED EVALUATIONS AND PLANNING FOR INDIVIDUALS RESIDING IN IMDS ...................................................................................................................... 7 VII. OUTREACH......................................................................................................................... 15 VIII. IMPLEMENTATION.......................................................................................................... 15 IX. MONITORING AND COMPLIANCE.................................................................................. 18 X. NAMED PLAINTIFFS............................................................................................................ 20 XI. ATTORNEYS' FEES AND COSTS ...................................................................................... 20 XII. MISCELLANEOUS PROVISIONS ..................................................................................... 21

Case: 1:05-cv-04673 Document #: 326 Filed: 09/29/10 Page 4 of 24 PageID #:6763
INTRODUCTION AND BACKGROUND Plaintiffs', a class of Illinois residents with Mental Illness living in Institutions for Mental Diseases ("IMDs"), filed tlns lawsuit on August 15, 2005, seeking declaratory and injunctive relief to redress violations of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131, 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). Plaintiffs allege that they are needlessly segregated and institutionalized in IMDs, where they are forced to live with dozens-and often hundreds-of other people with Mental Illness, in violation of the ADA and tlle Rehabilitation Act requirements to administer services in the most integrated appropriate setting. See generally Williams v. Blagojevich, 2006 WL 3332844 (N.D. Ill. Nov. 13,2006). Plaintiffs allege that Defendants have denied them the opportunity to live in integrated settings where they could lead more independent and more productive lives in their own communities. Plaintiffs seek injunctive relief (1) requiring Defendants to inform Plaintiffs that they may be eligible for community services and have a choice of such services, (2) requiring Defendants to promptly determine eligibility for such services, (3) prohibiting Defendants from arbitrarily denying eligibility for services, and (4) requiring Defendants to promptly provide appropriate services tllat allow Plaintiffs to live in the most integrated setting appropriate. Defendants deny liability and specifically deny that they have violated the ADA or the Rehabilitation Act. Therefore, upon all of the foregoing, and the Court being otherwise fully advised, the Court hereby ORDERS, ADJUDGES and DECREES as follows:
I Capitalized terms set forth herein are defined in Section IV, "Definition of Terms." Noncapitalized terms will have tlle meaning ordinarily attributed to tllem and shall be separate and apart from the terms defined in Section IV, "Definition of Terms."
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DECREE

I. JURISDICTION

1.

The Court has jurisdiction over this litigation pursuant to 28 U.S.C. § 1331 and

28 U.S.C. § 1343.

II. PURPOSE

2. The purpose of this Consent Decree is to assure that Defendants provide

Plaintiffs with the opportunity to receive the services they need in the most integrated setting

appropriate and to promote and ensure the development of integrated settings that maximize

individuals' independence, choice, opportunities to develop and use independent living skills,

and afford the opportunity to live similar lives to individuals without disabilities.

III. CLASS DEFINITION

3. The Class is defmed as:

All Illinois residents who are eighteen (18) years old or older and who:

(a) have a Mental Illness;

(b) are institutionalized in a privately owned Institution for Mental Diseases; and

(c) with appropriate supports and services may be able to live in an integrated community setting.

IV. DEFINITION OF TERMS

4. As used herein, the following terms have the following meanings:

i)

"Class" and "Class Members" mean the persons who, as of the date of

Approval of the Consent Decree or at any time in the future wlnle this

lawsuit is pending and during the time covered by the Decree, meet the

definition set forth in Section III, above.

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ii) "Community-Based Services" means those servIces provided under the Illinois Medicaid State Plan, as well as the services described in the Medicaid Community Mental Health Services Progranl administered by the Illinois Department of Human Services' Division of Mental Health and authorized pursuant to 59 Ill. Adm. Code Part 132 (hereafter referenced as Rule 132), in effect as of the date of Approval of the Decree, including any anlendments thereto.
iii) "Conuuunity-Based Setting" means the most integrated setting appropriate for a person with Mental Illness, where the setting is designed to promote independence in daily living, economic self-sufficiency and the ability to interact with non-disabled persons to the fullest extent possible. A Community-Based Setting may include: (1) Permanent Supportive Housing; (2) independent housing with the Class Member's family or friends; (3) other independent housing not owned or operated by a social service entity; or (4) any supported or supervised residential service within the DMH service taxonomy.
iv) "Community-Service Provider" or "Provider" means a provider certified by the Illinois Department of Human Services for the provision of Community-Based Services.
v) "Court" means the United States District Court for the Northern District of Illinois, Eastern Division.
vi) "Decree" means this Consent Decree.
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vii) "Defendants" means the Governor of the State of Illinois, the Secretary of the Illinois Department of Human Services, the Director of the Division of Mental Health of the Illinois Department of Human Services, the Director of the Illinois Department of Public Health, the Director of the Illinois Department of Healthcare and Family Services, and any of their successors.
viii) "Evaluation" means an assessment provided by a Qualified Professional under contract with the State to residents of IMDs or potential residents of IMDs, and includes Evaluations conducted (i) to implement this Decree, (ii) as part of a PASRR Process, (iii) in response to a report of significant change in a resident's physical or mental condition, (iv) in response to a request from a resident, or (v) as part of a regular assessment of residents. Each Evaluation shall include, although not be limited to, an assessment of the Class Member's medical condition as it bears on his or her appropriateness for placement in a Community-Based Setting, a consultation with the Class Member's psychiatrist and/or other professional staff where appropriate, and a consnltation with other appropriate people ofthe Class Member's choosing.
ix) "Implementation Plan" means the plan set forth in Subsection Vill.ll. below.
x) "Illinois Medicaid State Plan" or "State Plan" means the plan that was submitted by the State of Illinois to the United States Department of Health and Human Services, Centers for Medicare and Medicaid Services,
4

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in accordance with Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396v, in effect as of the date of the Approval of the Decree, including any amendments. xi) "Institution for Mental Diseases" or "!MO" means a privately owned long-tem1 care facility classified as an Institution for Mental Diseases for purposes of claiming Federal Medicaid matching ftmds. xii) "Mental Illness" means serious mental illness as defined in 77 Illinois Administrative Code, Chapter I, Section 300.4000. xiii) "Monitor" means the person or entity appointed by the COUli pursuant to Section IX hereof to perfonn the ftmctions more fully described therein. xiv) "Nan1ed Plaintiffs" means the following people, each of whom the Court certified as a class representative in the litigation: Ethel Willian1s, Jan Wrightsell, Edward Brandon, and Gilbert Parham. xv) "Parties" means Plaintiffs and Defendants, collectively. xvi) "Plaintiffs" means the Named Plaintiffs and Class Members, collectively. xvii) "Pre-Admission Screening and Resident Review (PASRR) Agency" means any independent agency that (1) contracts with the State to perfonn, in confonmll1ce with federal screening requirements, preadmission screening and resident reviews on persons with Mental Illness who may be placed or currently reside in an IMD, and (2) as a condition of its contract with the State, has received sufficient training and/or has sufficient experience providing services to demonstrate a comprehensive
5

Case: 1:05-cv-04673 Document #: 326 Filed: 09/29/10 Page 9 of 24 PageID #:6768
understanding of the available residential options, including Permanent Supportive Housing, and Community-Based Services. xviii) "Pre-Admission Screening and Resident Review (PASRR) Process" means the eligibility, admission and assessment process for individuals who may be or have been placed in an IMO. xix) "Qualified Professional" means persons who are appropriately licensed, credentialed, trained and employed by a PASRR Agency. xx) "Permanent Supportive Housing" or "PSH" refers to integrated permanent housing with tenancy rights, linked with flexible CommunityBased Services that are available to consumers when they need them, but are not mandated as a condition of tenancy. For purposes of this Decree, PSH includes scattered-site housing as well as apartments clustered in a single building, but no more than 25% of the units in one building with more than four (4) units may be used to serve PSH clients lmown to have Mental Illness. For buildings with two (2) to four (4) units, no more than 50% of the units may be used to serve PSH clients lmown to have Mental Illness. However, during the first five years after finalization of the Implementation Plan, up to 75 Class Members may be placed in buildings where more than 25% of the units serve PSH clients lmown to have Mental Illness if those buildings were used to serve PSH clients prior to March 1, 2010. After the first five (5) years following the finalization of the Implementation Plan, all Class Members who are being served in PSH
6

Case: 1:05-cv-04673 Document #: 326 Filed: 09/29/10 Page 10 of 24 PageID #:6769
shall be offered the opportunity to reside in buildings that comply with the 25% or 50% unit limits set forth above in tllis subparagraph. xxi) "Service Plan" as used in this Decree means a plan containing a description of goals, including transition to Community-Based Settings, and strategies tlmt will be employed and services provided to acllieve tll0se goals. xxii) "State" means the State of Illinois. V. THE MENTAL HEALTH SERVICES SYSTEM 5. Development of Community Capacity. Defendants shall ensure the availability of services, supports and other resources of sufficient quality, scope and variety to meet tlleir obligations under the Decree and the Implementation Plan. Defendants shall implement sufficient measures, consistent witll the preferences, strengths and needs of Class Members, to provide Community-Based Settings and Community-Based Services pursuant to the Decree. VI. INDIVIDUALIZED EVALUATIONS AND PLANNING FOR INDIVIDUALS RESIDING IN IMDS 6. Evaluatious. a) Within two (2) years of the finalization of the Implementation Plan described below, evelY Class Member will receive an independent, professionally appropriate and person-centered Evaluation of llis or her preferences, strengths and needs in order to determine the CommunityBased Services required for llim or her to live in PSH or another appropriate Conmlunity-Based Setting. Any Class Member has the right to decline to talce part in such Evaluation. Any Class Member who has
7

Case: 1:05-cv-04673 Document #: 326 Filed: 09/29/10 Page 11 of 24 PageID #:6770

declined to be evaluated has the right to receive an Evaluation any time

thereafter on request.

b) Defendants shall ensure that Evaluations are conducted by Qualified

Professionals as defined in this Decree.

c) Defendants shall ensure, as provided in the Implementation Plan, that all

Class Members shall be informed about Community-Based Settings,

including Permanent Supportive Housing, and Community-Based

Services available to assist individuals in these settings, and the financial

support Class Members may receive in these settings.

d) After the second year following finalization of the Implementation Plan,

the Evaluations described in Subsection 6(a) shall be conducted annually.

As part of each Class Member's annual Evaluation, the reasons for any

Class Member's opposition to moving out of an IMD to a Community-

Based Setting will be fully explored and appropriately addressed as

described in Section VII. Any Class Member who has received an

Evaluation but has declined to move to a Community-Based Setting may

request to be reassessed for transition to a Community-Based Setting any

time thereafter.

7.

Service Plans.

a) Based on the results of the Evaluations described above, Defendants shall

promptly develop Service Plans specific to each Class Member who is

assessed as appropriate for transition to a Community-Based Setting. Each

Service Plan shall be periodically updated to reflect any changes in needs

8

Case: 1:05-cv-04673 Document #: 326 Filed: 09/29/10 Page 12 of 24 PageID #:6771
and preferences of the Class Member, including his or her desire to move to a Community-Based Setting after declining to do so, and shall incorporate services where appropriate to assist in acquisition of basic and instrumental activities of daily living skills and illness self-management. Acquisition of such skills shall not be a prerequisite for transitioning out of the IMD. b) For each Class Member who does not oppose moving to a CommunityBased Setting, the Service Plan shall, at a minimum, describe the Community-Based Services the Class Member requires in a CommunityBased Setting, including the services the Class Member will need to transition to a Community-Based Setting, and a timetable for completing that transition. If there has been a detemlination that a Class Member is not cun'ently appropriate for PSH, the Service Plan shall specify what services the Class Member needs that could not be provided in PSH and shall describe the Community-Based Services the Class Member needs to live in another Community-Based Setting that is the most integrated setting appropriate. c) The Service Plan shall be developed by a Qualified Professional in conjunction with the Class Member and his or her legal representative. The Qualified Professional also shall consult with other appropriate people of the Class Member's choosing. d) Each Service Plan shall focus on the Class Member's personal vision, preferences, strengths and needs in home, community and work
9

Case: 1:05-cv-04673 Document #: 326 Filed: 09/29/10 Page 13 of 24 PageID #:6772

environments and shall reflect the value of supporting the individual with

relationships, productive work, participation in community life, and

personal decision-making.

e) The Service Plan shall not be limited by the current availability of

Community-Based Services and Settings; provided, however, that nothing

in this subparagraph obligates Defendants to provide any type of

Community-Based Service beyond the types of Community-Based

Services included in the State Plan and Rule 132.

f)

The Service Plan shall be completed within sufficient time to provide

appropriate and sufficient transitions for Class Members in accordance

with the benchmarks set forth in the Decree.

S. Benchmarks for Transitions for Individuals Residing in IMDs.

a) Within five (5) years of the finalization of the Implementation Plan, all

Class Members who have been assessed as appropriate for living in a

Community-Based Setting will be offered the opportunity to move to a

Commtmity-Based Setting.

b) Within one (1) year of finalization of the Implementation Plan, no

individual with Mental Illness shall be admitted to an IMD without a pre-

screening having first been conducted through the PASRR Process and an

initial Service Plan completed. Defendants will ensure that the PASRR

Process: identifies and assesses individuals who may be appropriate for

placement in a Commtmity-Based Setting; identifies Community-Based

Services that would facilitate that placement; and ensures that approved

10

Case: 1:05-cv-04673 Document #: 326 Filed: 09/29/10 Page 14 of 24 PageID #:6773
admissions to IMDs are for only those IMDs that can provide treatment consistent with the individual's initial Service Plan and consistent with the goal of transition to a Community-Based Setting. After the first five (5) years following the finalization of the Implementation Plan, no individual with Mental Illness whose Service Plan provides for placement in Community-Based Settings shall be housed or offered placement in an IMD at public expense unless, after being fully informed, he or she declines the Opporhmity to receive services in a Commlmity-Based Setting. c) By the end of the first year after the finalization of the Implementation Plan, Defendants will have: (I) offered placement in a Community-Based Setting to a minimlm1 of 256 Class Members who are assessed as appropriate for living in a Commlmity-Based Setting and who do not oppose moving to a Community-Based Setting; and (2) developed 256 PSH lmits for the benefit of Class Members. d) By the end of the second year after the finalization of the Implementation Plan, Defendants will have: (1) offered placement in a Community-Based Setting to a minimlill1 of 640 Class Members (including the 256 referenced in subparagraph S(c) above) who are assessed as appropriate for living in a Community-Based Setting and who do not oppose moving to a Community-Based Setting; and (2) developed 640 PSH units for the benefit of Class Members.
11

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e) By the end of the third year after the finalization of the Implementation Plan, Defendants will have: (I) offered placement to at least forty percent (40%) of all individuals who are assessed as appropriate for living in a Community-Based Setting and who do not oppose moving to a Community-Based Setting; and (2) developed the corresponding number of PSH units or other Community-Based Settings sufficient for tIlese individuals. For purposes of tlus subparagraph, tIlese individuals include the total of (1) all Class Members as of tile end of the second year after tile finalization of the Implementation Plan who are assessed as appropriate for living in a Community-Based Setting and who do not oppose moving to a Community-Based Setting, and (2) all former Class Members who have already transitioned from the IMD to a Commllluty-Based Setting or to anotIler community setting since finalization of the Implementation Plan.
1) By tile end of tile fourth year after the finalization of the Implementation Plan, Defendants will have: (l) offered placement to at least seventy percent (70%) of all individuals who are assessed as appropriate for living in a Community-Based Setting and who do not oppose moving to a Community-Based Setting; and (2) developed the corresponding nmnber of PSH units or other Community-Based Settings sufficient for these individuals. For purposes of this subparagraph, these individuals include the total of (I) all Class Members as of the end of tile third year after the finalization of the Implementation Plan who are assessed as appropriate
12

Case: 1:05-cv-04673 Document #: 326 Filed: 09/29/10 Page 16 of 24 PageID #:6775
for living in a Community-Based Setting and who do not oppose moving to a Community-Based Setting, and (2) all fomler Class Members who have already transitioned from the IMD to a Community-Based Setting or to another community setting since finalization of the Implementation Plan. g) By the end of the fifth year after the finalization of the Implementation Plan, Defendants will have: (I) offered placement to one hundred percent (l 00%) of all individuals who are assessed as appropriate for living in a Community-Based Setting and who do not oppose moving to a Community-Based Setting; and (2) developed the corresponding number of PSH units or other Community-Based Settings sufficient for these individuals. For purposes of this subparagraph, these individuals include the total of (1) all Class Members as of the end of the fourth year after the finalization of the Implementation Plan who are assessed as appropriate for living in a Community-Based Setting and who do not oppose moving to a Community-Based Setting, and (2) all former Class Members who have already transitioned from the IMD to a Community-Based Setting or to another community setting since the finalization of the Implementation Plan. h) After the end of the fifth year following finalization of the Implementation Plan, Class Members who are assessed as appropriate for living in a Community-Based Setting, who do not oppose transition to a CommunityBased Setting and whose Service Plans provide for placement in
!3

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Community-Based Settings shall be offered the opportunity to move to those settings and shall receive appropriate services consistent with the Service Plan within one hundred and twenty (120) days of the date of the Service Plan. 9. Community-Based Settings and Community-Based Services a) PSH will be considered the most integrated setting appropriate for Class Members except that, (1) for any Class Members (i) who have severe dementia or other severe cognitive impairments requiring such a high level of staffing to assist with activities of daily living or self-care management that they cannot effectively be served in PSH, (ii) who have medical needs requiring a high level of skilled nursing care that may not safely be provided in PSH, or (iii) who present an imminent danger to themselves or others, the evaluator will determine the most integrated setting appropriate, which may be PSH or another setting, and (2) nothing in this paragraph shall prevent Class Members who can and wish to live with family or friends or in other independent housing that is not connected with a service provider from doing so. Those Class Members not transitioning from IMDs into PSH will have ongoing reassessments with treatment objectives to prepare them for subsequent transition to the most integrated setting appropriate, including PSH. b) Class Members who move to a Community-Based Setting will have access to all appropriate Community-Based Services, including but not limited to reasonable measures to ensure that their housing remains
14

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available in the event that they are temporarily placed in a hospital or other treatment facility. c) Qualified Professionals shall infmID Class Members of their options pursuant to subparagraphs 6(a), 6(d), and 7(b) of this Decree. Class Members shall not be subjected to any form of retaliation in response to any option selected nor shall they be pressured to refrain from exploring appropriate alternatives to IMDs. VII. OUTREACH 10. Defendants shall ensure that Class Members have the opportunity to receive complete and accurate information regarding their rights to live in Comrmmity-Based Settings and/or to receive Community-Based Services, and the available options and opportunities for doing so. The Implementation Plan shall describe the methods by which such information will be disseminated, the process by which Class Members may request services, and the manner in which Defendants will maintain current records of these requests. In addition to providing information, Defendants shall ensure that the Qualified Professionals conducting the Evaluations
engage residents who express concerns about leaving the IMD with appropriate frequency. The
Implementation Plan shall describe methods for engaging residents, including where appropriate, providing reasonable opportlmities for residents to visit and observe Community-Based Settings. All costs for outreach shall be borne by Defendants. VIII. IMPLEMENTATION
11. Overview and Contents of the Implementation Plan. Defendants, with the
15

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input of the Monitor and Plaintiffs, shall create and implement an Implementation Plan to accomplish the obligations and objectives set forth in the Decree. The Implementation Plan must, at a minimum:
a) Establish specific tasks, timetables, goals, programs, plans, strategies and protocols to assure that Defendants fulfill the requirements of the Decree;
b) Describe the hiring, training and supervision of the personnel necessary to implement the Decree;
c) Describe the activities required to develop CO!11!11unity-Based Services and CO!11!11unity-Based Settings, including inter-agency agreements, requests for proposals and other actions necessary to implement the Decree;
d) IdentifY, based on information known at the time the Implementation Plan is finalized and updated on a regular basis, any services or supports anticipated or required in Service Plans formulated pursuant to the Decree that are not currently available in the appropriate quantity, quality or geographic location;
e) IdentifY, based on information lmown at the time the Implementation Plan is fmalized and updated on a regular basis, any services and supports which, based on demographic or other data, are expected to be required within one year to meet the obligations of the Decree;
f) IdentifY any necessary changes to regulations that govern IMDs in order to strengthen and clarifY requirements for services to persons with Mental
16

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Illness and to provide for effective oversight and enforcement of all regulations and laws; g) Describe the methods by which Defendants shall ensure compliance with their obligations under Paragraph 6 of this Decree; and h) Describe the mechanisms by which Defendants shall ensure compliance with their obligations under Paragraph 10 of this Decree. 12. Within 135 days of Approval of the Decree, Defendants shall provide the Monitor and Plaintiffs with a draft Implementation Plan. The Monitor and Plaintiffs will participate in developing and finalizing the Implementation Plan, which shall be finalized within nine (9) months following Approval of the Decree. In the event the Monitor or Plaintiffs disagree with the Defendants' proposed Implementation Plan, the matter may be submitted to the Court for resolution. 13. The Implementation Plan shall be updated and amended annually, or at such earlier intervals as Defendants deem necessary or appropriate. The Monitor and Plaintiffs may review and comment upon any such updates or amendments. In the event the Monitor or Plaintiffs disagree with the Defendants' proposed updates or anlendments, the matter may be submitted to the Court for resolution. 14. The Implementation Plan, and all amendments or updates thereto, shall be incorporated into, and become enforceable as part of the Decree. 15. ill the event that any IMD seeks to discharge any Class Member before appropriate housing is available, including but not limited to circumstances in which an IMD decides to close, Defendants will ensure that those individuals are not left without appropriate housing options based on their preferences, strengths and needs.
17

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IX. MONITORING AND COMPLIANCE 16. Appointment of a Monitor. The Court will appoint an independent and
impartial Monitor who is Imowledgeable concerning the management and oversight of programs serving individuals with Mental Illnesses. The Parties wiII attempt to agree on the selection of a Monitor to propose to the Court. If the Parties are unable to reach agreement, each party wiII nominate one person to serve as Monitor and the Court will select the Monitor. Within twentyone (21) days of Approval of the Decree, the Parties shaIl submit their joint recommendation or separate nominations for a Monitor to the Court. In the event the Monitor resigns or otherwise becomes unavailable, the process described above wiII be used to select a replacement.
17. Duties and Reporting. The Monitor's duties include evaluating Defendants' compliance with the Decree, identifying actual and potential areas of non-compliance with the Decree, mediating disputes between the Parties, and bringing issues and recommendations for their resolution to the Court. Within 60 days after the end of each year of service, the Monitor will report to the Court and the Parties regarding compliance with the Decree. Such reports shall include the information necessary, in the Monitor's professional judgment, for the Court and Plaintiffs to evaluate Defendants' compliance or non-compliance with the terms of the Decree. The Monitor may file additional reports as necessary. Reports of the Monitor shaIl be served on all Parties.
18. Review and Evaluation of Data and Information. The Monitor shall review and evaluate Defendants' compliance with the terms of the Decree. Not less than every six (6) months, Defendants shaIl provide the Monitor and Plaintiffs with a detailed report containing data and information sufficient to evaluate Defendants' compliance with the Decree and Defendants' progress towards achieving compliance, with the Parties and Monitor agreeing in
18

Case: 1:05-cv-04673 Document #: 326 Filed: 09/29/10 Page 22 of 24 PageID #:6781
advance of the first report of the data and information that must be included in such report. Defendants will not refi.Jse any request by the Monitor for documents or other information that are reasonably related to the Monitor's review and evaluation of Defendants' compliance with the Decree, and Defendants will, upon reasonable notice, permit confidential interviews of Defendants' staff or consultants, except their attorneys. The Monitor will have access to all Class Members and their records and files, as well as to those service providers, facilities, buildings and premises that serve, or are otherwise pertinent to, Class Members, where such access is reasonably related to the Monitor's review and evaluation of Defendants' compliance with the Decree. The Defendants shall comply with Plaintiffs' requests for infornlation that are reasonably related to Defendants' compliance with the Decree, including without limitation requests for records and other relevant documents pertinent to implementation of the Decree or to Class Members. Plaintiffs also shall be permitted to review the information provided to the Monitor. All information provided to the Monitor and/or Plaintiffs pursuant to the Decree shall be subj ect to the Protective Order.
19. Compliance. In the event the Monitor finds Defendants not in compliance with the Decree, the Monitor shall promptly meet and confer with the Parties in an effort to agree on steps necessary to achieve compliance. In the event that Plaintiffs believe that Defendants are not complying with the tenns of the Decree, Plaintiffs shall notifY the Monitor and Defendants of Defendants' potential non-compliance. The Monitor then shall review Plaintiffs' claims of actual or potential non-compliance and, as the Monitor deems appropriate in his or her professional judgment, meet and confer with Defendants and Plaintiffs in an effort to agree on steps necessary to achieve compliance with the Decree. If the Monitor and Parties agree, such steps shall be memorialized in writing, filed with the Comt, and incorporated into, and become
19

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enforceable as part of, the Decree. In the event that the Monitor is lmable to reach agreement with Defendants and Plaintiffs, the Monitor or either Party may seek appropriate relief from the Court. In the event that Plaintiffs believe that Defendants are not in compliance with the Decree and that the Monitor has not requested appropriate relief from the Court, Plaintiffs may seek relief from the Court. The Monitor will not communicate with the Court without advance notice to the Parties.
20. Compensation of the Monitor. Defendants shall compensate the Monitor and his or her staff at their usual and customary rate subject to approval by the court. Defendants shall reimburse all reasonable expenses of the Monitor and the Monitor's staff, consistent with the guidelines set forth in the "Governor's Travel Control Board Travel Guide for State Employees." Defendants may seek relief from the Court if Defendants believe that any of the Monitor's charges is inappropriate or unreasonable. X. NAMED PLAINTIFFS
21. Within sixty (60) days of Approval ofthe Decree, Defendants shall offer each of the Nan1ed Plaintiffs the opportunity to receive appropriate services in the most integrated setting appropriate to his or her needs and wishes, including PSH. Provision of services to the Named Plaintiffs pursuant to this paragraph shall not be used to determine any other individual's eligibility for services under the terms of the Decree. Xl. ATTORNEYS' FEES AND COSTS
22. In full settlement of all attorneys' fees incurred to date in connection with the litigation, Defendants shall pay, subject to court review and approval, $1,990,000.00 to Class Counsel. In full settlement of all out-of-pocket costs and expenses (not to include attorneys' fees) incurred to date by Class Counsel, Defendants shall pay to Class Counsel such costs and
20

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expenses incurred by Class Counsel through and including the Approval of the Decree and any appeal thereof. Such amOlmts shall be distributed to Class Counsel in the manner set forth in written instructions provided by Class Counsel. Furthermore, such amounts shall be set forth in a Judgment Order to be entered by the Court. Defendants shall complete and submit all paperwork necessary for payment of such amounts, plus applicable statutory post-judgment interest, within five (5) business days after expiration of the time to appeal the fee award without the filing of a Notice to Appeal or after the issuance of the mandate by the highest reviewing court, whichever is later.
XII. MISCELLANEOUS PROVISIONS 23. Approval of the Decree. Approval of the Decree shall be deemed to occur on the date the Court enters the Decree. 24. Costs of Notices. The cost of all notices hereunder or otherwise ordered by the Court shall be borne by Defendants. 25. Signatories. Each undersigned representative of a Defendant to tills litigation and tile Attorney General for the State of Illinois certifies that he or she is authorized to enter into the terms and conditions of the Decree and to execute and bind legally such Defendant to this document. Each tmdersigned representative of Plaintiffs certifies that he or she is autllOrized to enter into the ternlS and conditions of tile Decree and to execute and bind legally the Plaintiffs to tills document.
SO ORDERED THIS ~DAY OF A~l..!.J~~, 20~.
, =
United States District Judge
21

 
 Case: 1:05-cv-04673 Document #: 325 Filed: 09/29/10 Page 1 of 24 PageID #:6736

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

ETHEL WILLIAMS, JAN WRIGHTSELL,

)

EDWARD BRANDON, and GILBERT

)

PARHAM, on behalf of themselves

)

and all others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

PAT QUINN, in his official capacity

)

as Governor of the State of Illinois,

)

MICHELLE R.B. SANDLER, in her official )

capacity as Secretary of the Illinois

)

Department of Human Services, LORRIE

)

RICKMAN-JONES, in her official

)

capacity as Director of the Division

)

of Mental Health of the Illinois

)

Department of Human Services,

)

DAMON T. ARNOLD, in his official

)

capacity as Director of the Illinois

)

Department of Public Health, and

)

BARRY S. MARAM, in his official

)

capacity as Director of the Illinois

)

Department of Healthcare and Family

)

Services,

)

)

Defendants.

)

No. 05 C 4673

OPINION AND ORDER
I. INTRODUCTION
This class action concerns the State of Illinois's alleged duty under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101(a) (2), 12101(a) (5), 12132, and § 504 of the

Case: 1:05-cv-04673 Document #: 325 Filed: 09/29/10 Page 2 of 24 PageID #:6737
Rehabilitation Act, 29 U.S.C. § 794(a), to provide persons with mental illnesses who reside in privately owned Institutions for Mental Diseases ("IMD") the opportunity to be placed in an integrated community setting. See generally Olmstead v. L.C., 527 U.S. 581 (1999). The defendants in this case, all sued in their official capacity, are the Governor of Illinois; the Secretary of the Illinois Department of Human Services; the Director of the Division of Mental Health of the Department of Human Services; the Director of the Illinois Department of Public Health; and the Director of the Illinois Department of Healthcare and Family Services.
There are 25 IMDs in Illinois with approximately 4300 residents. The IMDs are not parties in this litigation, but each IMD is potentially affected by the resolution of this case. The IMDs have cooperated with discovery and have expressed their views at hearings and in writing.
A Fed. R. Civ, P 23 (b) (2) class was certified "consisting of Illinois residents who: (a) have a mental illness; (b) are institutionalized in a privately owned Institution for Mental Diseases; and (c) with appropriate supports and services may be able to live in an integrated community setting." Williams v. Blagojevich, 2006 WL 3332844 *5 (N.D. Ill. Nov. 13, 2006) ("Williams I").
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The Class' and defendants have reached a Settlement, consisting of a proposed Consent Decree, as modified. See Order dated May 27, 2010 [Docket Entries 266-67].' Following preliminary approval, a Fairness Hearing to consider final approval of the Consent Decree was held on September 7, 2010. Notice of the Fairness Hearing and of the opportunity to comment in writing was distributed through various means. The IMDs distributed notices to IMD residents and their guardians and family. Notice was also published in newspapers and posted on the websites of various parties and organizations. Some, or all, of the IMDs distributed their own information sheets to residents and family members urging them to object to the Consent Decree.
Some of the written information distributed by the IMDs was found to be misleading. See Williams v. Ouinn, 2010 WL 3021576 *3-4 (N.D. Ill. July 27, 2010). After the IMDs' information sheets had circulated, the IMDs were directed to
'Arguments and other statements made by Class Counsel are referred to as statements of the Class, as distinguished from statements made by or on behalf of a group of Class Objectors represented by counsel and other individual members of the Class.
'There is no separate settlement agreement, only a proposed Consent Decree that was submitted by the parties and slightly modified before receiving preliminary approval. The Consent Decree as modified can be found at pages 4-28 of Docket Entry 267. The parties also agreed to forms of notice that were modified by the court. The remainder of today's ruling will refer to approval of the Consent Decree which is approval of a class settlement.
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refrain from further soliciting residents and family members to be represented by particular attorneys. Id. at *3. No order was entered requiring that the information sheets be retracted nor directing that any corrective notice be distributed. See id. at *4.
After the notices were distributed, Class Counsel held informational meetings in each IMD. At a few IMDs, an attorney representing objecting Class Members held informational meetings and some IMDs organized their own informational meetings. Also, some IMD staff had informal conversations with various residents, including when residents approached staff with questions after receiving the court-approved notices.
A large number of comments were received in response to the notices. The impact of the IMDs' opposition, in terms of both the number of total comments submitted and the number of negative comments, cannot be accurately measured. To the extent approval and implementation of the proposed Consent Decree could eventually result in a decrease of IMD residents and possible closure of some or many IMPs, the IMDs clearly have a financial interest in opposing, or delaying, approval and implementation of the Consent Decree. The IMDs may also be motivated by genuine concern for the well-being of their residents. Regardless of the IMDs' motivations, though, they raise valid concerns and have
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contributed to motivating residents, guardians of residents, and concerned family members or friends to raise valid concerns. Because they are important and pertinent issues, these concerns will be addressed.
Of the 1803 comments received by August 20, 2010, 1635 were submitted on forms the IMDs provided with their information sheets. The majority of comments expressed opposition to the Consent Decree.' Some persons who signed form comment sheets opposing the Consent Decree later submitted comments supporting the Consent Decree. No scientific poll of IMD residents, their guardians, and interested family or friends was conducted and, regardless, approval or disapproval of a class settlement is not decided by a vote of class members. It is clear, though, that a substantial segment of Class Members and non-party family, friends, and interested persons oppose or have concerns about the Consent Decree as proposed. As is set forth below, that is a
'Additionally, at the Fairness Hearing, sign-in sheets were provided on which each person attending could fill in: (a) the person's name; (b) identify oneself as an IMD resident, a relative of a resident, or other; (c) identify the resident's IMD, the IMD of a relative, or the IMD with which the signer was otherwise affiliated; and (d) note whether the person supported or opposed the proposed Consent Decree. 350 persons signed in with 158 (45.14%) noting opposition, 124 (35.43%) noting support, and 68 (19.43%) giving no indication. 59 of the signers identified themselves as IMD residents, with 21 (35.59%) noting opposition, 24 (40.68%) noting support, and 14 (23.73%) giving no indication.
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factor to consider in deciding whether to approve the proposed Consent Decree.
A substantial number of Class Members, including the Illinois State Guardian speaking on behalf of 120 wards who are in IMDs, expressed support for the Decree, including a desire for community placement opportunities. A group of objectors (the "Objector Group") retained counsel and filed a brief [Docket Entry 303] opposing approval of the Consent Decree in its present form. The objections raised by the Objector Group generally cover the objections separately raised in the numerous individual objections that were submitted.
Many of the individual comments (both unfavorable and favorable), as well as those orally stated at the Fairness Hearing, include individual accounts about difficulties Class Members (and their relatives) had in Class Members trying to function outside (as well as inside) institutional settings. These accounts have been taken into consideration. As was noted by Class Counsel at the Fairness Hearing, living with and treating mental illness is a challenge, one that lasts a lifetime. The challenge continues whether inside or outside institutional settings. The family members and friends who submitted comments and/or appeared at the Fairness Hearing showed a genuine concern for their loved ones and a commitment to
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continue to face the challenge. Their contributions are appreciated by the court and, whether they always are able to express it or not, by their loved ones as well. Discovering and providing the appropriate treatment for each individual is also a challenge to the professionals providing services and the administrators trying to determine the best way to deliver the services. Evidence before the court supports that a range of good and bad episodes in the treatment of Class Members has occurred both within institutional settings (including IMDs) and in various circumstances outside institutional settings.
Today's ruling will focus on the objections as stated in the briefs of the Objector Group and the IMDS.4
II. LEGAL STANDARD
Federal courts favor the settlement of class actions. The purpose of a fairness hearing is not to resolve the merits of the case, but to determine whether the settlement is fair, reasonable, and adequate when viewed in its entirety, and not a product of collusion. Mirfasihi v. Fleet Mortg. Corp., 450 F.3d
4The IMDs are not parties to this litigation. Advocacy groups that have submitted comments also are not parties. The input of nonparties, however, may be considered to the extent it is useful. See Gould v. Alleco, Inc., 883 F.2d 281, 284 n.3 (4th Cir. 1989); Wilson v. Sw. Airlines, Inc., 880 F.2d 807, 817 n.1. (5th Cir. 1989); San Francisco NAACP v. San Francisco Unified Sch. Dist., 59 F. Supp. 2d 1021, 1033 (N.D. Cal. 1999). The IMDs' brief objecting to the Consent Decree is Docket Entry 295.
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Case: 1:05-cv-04673 Document #: 325 Filed: 09/29/10 Page 8 of 24 PageID #:6743
745, 748 (7th Cir. 2006); Reynolds v. Beneficial Nat'l Bank, 288 F.3d 277, 279 (7th Cir.2002); Isby v. Bayh, 75 F.3d 1191, 1196, 1200 (7th Cir. 1996); Williams v. Rohm & Haas Pension Plan, 2010 WL 1490350 *2 (S.D. Ind. April 12, 2010); Meyenburg v. Exxon Mobil Corp., 2006 WL 5062697 *3 (S.D. Ill. June 5, 2006). This court must act in a fiduciary-like capacity for the class, carefully scrutinizing the Consent Decree to make sure that class counsel have properly exercised the fiduciary duties they owe to the class. Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781, 785 (7th Cir. 2004); Reynolds, 288 F.3d at 279-80. Factors that may be considered in determining whether a class settlement is fair, adequate, and reasonable include: (a) the strength of plaintiffs' case compared to the benefits of the settlement; (b) as regards a damages settlement, defendants' ability to pay; (c) the likely complexity, length, and expense of further litigation; (d) opposition to the settlement from members of the class; (e) any indications of collusion; (f) the opinions of counsel; (g) the stage of the proceeding and the amount of discovery completed at the time of settlement; and (h) the public interest. See Synfuel Tech., Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 653 (7th Cir. 2006); Mirfasihi, 450 F.3d at 748; Isby, 75 F.3d at 1199; Abrams v. Van Kampen Funds, Inc., 2006 WL 163023 *1 (N.D. Ill. Jan. 18, 2006). In determining whether to
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Case: 1:05-cv-04673 Document #: 325 Filed: 09/29/10 Page 9 of 24 PageID #:6744

approve a settlement, the Federal Rules of Evidence do not apply.

Case law supports that any information can be considered,

including affidavits and other items not normally admissible at

trial, that will aid the court in reaching an informed and

reasoned decision. See Mars Steel Corp. v. Cont'l Bank N.A.,

~-

,

880 F.2d 928, 937-38 (7th Cir. 1989) (dictum); Int'l Union,

UAW v. Gen. Motors Corp., 497 F.3d 615, 636 (6th Cir. 2007)

(collecting cases) .

III. TERMS OF THE DECREE

The Consent Decree provides procedures for evaluating IMD

residents for possible placement in community settings and

providing community placements and services for those who may

appropriately be placed in such settings and do not oppose such a

placement. The type of Community-Based Services to be considered

and offered are those set forth in 59 Ill. Adm. Code, Part 132

("Rule 132"). The Consent Decree provides a timetable for

evaluating and placing individuals that is measured from

defendants' finalization of an Implementation Plan. Within two

years after finalization of the Implementation Plan, all IMD

residents are to "receive an independent, professionally

appropriate and person-centered Evaluation of his or her

preferences, strengths and needs in order to determine the

Community-Based Services required for him or her to live in PSH

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[Permanent Supportive Housing] or another appropriate CommunityBased Setting." Decree ~ 6 (a) .
The evaluations are to be conducted by "Qualified Professionals," the definition of which incorporates provisions of state law. Based on the evaluations, an individualized Service Plan is to be developed by a Qualified Professional in conjunction with the resident and, if applicable, the resident's guardian and other persons of the resident's choosing. The Decree identifies certain items that are to be included in the Service Plan, general criteria to consider, and that each person's Service Plan is to be periodically updated. Id. ~ 7. There is a timetable, with intermediary benchmarks, setting forth that, within five years after the Implementation Plan is finalized, all those who qualify and do not oppose being transferred to a Community-Based Setting will be placed in such a setting. Id. ~ 10. Defendants agree to fund and provide sufficient services, in adequate quality, scope, and variety, to meet their obligations under the Decree. Id. ~ 5.
~_~ independent and impartial Monitor is to be appointed who will monitor compliance with the Decree; submit periodic reports to the court and parties; and seek to resolve any disputes that may arise regarding compliance and implementation. rd. ~~ 16-20. It is expressly provided that any unresolved
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disputes between the parties or between the Monitor and a party
is to be brought before the court. Id. ~ 19. The annual reports
that the Monitor files with the court are to be sufficient for
the court to evaluate compliance or noncompliance with the
Decree. Id. ~ 17. The Implementation Plan, id. ~ 14, and
certain compliance requirements, id. ~ 19, are to be deemed as
incorporated in the Decree and enforceable by the court.
Implicit in the reporting and incorporation provisions, as well
as the fact that the parties' settlement is being structured as a
consent decree, is that the implementation of the Consent Decree
is subject to court approval.'
Within nine months following approval of the Consent
Decree, the Implementation Plan is to be adopted. Id. ~ 12.
Defendants, with the input of the Monitor and Plaintiffs, shall create and implement an Implementation Plan to
'If the Monitor or plaintiffs cannot agree with defendants as to the Implementation Plan, it is to be submitted to the court for approval. Decree ~ 12. Even if agreement is reached as to the Implementation Plan, it shall be submitted to the court for approval. Although not mentioned by any of the parties, the Implementation Plan apparently would be an agency rule subject to Illinois's rulemaking procedures. See 5 ILCS 100/1-5, 1-20, 1-70, 5-5. That generally requires public notice and a period for comments. Id. § 5-40. Emergency rules permit immediate implementation of rules adopted pursuant to "[clonsent orders or other court orders adopting settlements negotiated by an agency." Id. § 5-45(b). Emergency rules may only be effective for up to 150 days and must be adopted using § 5-40 procedures in order to remain in effect beyond that time. Id. § 5-45(c); County of Du Page v. Ill. Labor Relations Bd., 358 Ill. App. 3d 174, 830 N.E.2d 709, 714 (2d Dist. 2005).
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accomplish the obligations and objectives set forth in the Decree. The Implementation plan must, at a minimum: a) Establish specific tasks, timetables,
goals, programs, plans, strategies and protocols to assure that Defendants fulfill the requirements of the Decree; b) Describe the hiring, training and supervision of the personnel necessary to implement the Decree; c) Describe the activities required to develop Community-Based Services and Community-Based Settings, including inter-agency agreements, requests for proposals and other actions necessary to implement the Decree; d) Identify, based on information known at the time the Implementation Plan is finalized and updated on a regular basis, any services or supports anticipated or required in Service Plans formulated pursuant to the Decree that are not currently available in the appropriate quantity, quality or geographic location; e) Identify, based on information known at the time the Implementation Plan is finalized and UPdated on a regular basis, any services and supports which, based on demographic or other data, are expected to be required within one year to meet the obligations of the Decree; f) Identify any necessary changes to regulations that govern IMDs in order to strengthen and clarify requirements for services to persons with Mental Illness and to provide for effective oversight and enforcement of all regulations and laws; and g) Describe the methods by which Defendants shall ensure compliance with their obligations under Paragraph 6 of this Decree[; and] h) Describe the mechanisms by which Defendants shall ensure compliance with
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their obligations under Paragraph 10 of this Decree.
The Consent Decree also contains the following provision: In the event that any IMD seeks to discharge
any Class Member before appropriate housing is available, including but not limited to circumstances in which an IMD decides to close, Defendants will ensure that those individuals are not left without appropriate housing options based on their preferences, strengths and needs.
Id. ~ 15. IV. OBJECTIONS
The principal concern expressed by objectors appears to be the possibility that implementation of the Consent Decree will eventually result in the closure of some or all IMDs and residents who do well in and/or prefer to stay in IMDs will be left without that option or be forced to move to a different IMD or other type of non-community facility, with the move itself causing turmoil or setbacks or the new IMD/facility not being as effective a placement as the current one. Closely related to this concern is a fear that residents will be out on the street when IMDs close. The latter is an unfounded concern. Paragraph 15 of the Decree expressly provides that residents will not be left without appropriate housing options due to an IMD closing and that no one will be discharged from an IMD prior to
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appropriate housing arrangements being made. Additionally, the Decree does not deprive residents of any rights to government subsidy and placement that they already have nor does it deprive them of existing procedural rights in the event of an IMD closure. The Decree itself will not result in any person being deprived of shelter, food, or medications.
There is a genuine concern that, if enough people leave IMDs for community placements, some of the IMDs will close due to not having enough residents to remain financially viable. The Class is broadly defined as including persons at IMDs who "may," with appropriate supports and services, be able to live in an integrated community setting. Based on the estimate of one of their experts, Class Plaintiffs contend that in the order of 90% of IMD residents could qualify for some form of community placement. Since the class definition only requires that a person might qualify in order to be a Member of the Class, most or virtually all IMD residents are Members of the Class.' Some of the Members of the Class could qualify for community placement, but presently have no interest in being transferred
'The Objector Class contends the class definition should be changed to expressly include all IMD residents. They complain the definition contains a subjective criteria that requires a lengthy evaluation to determine who is a Member. However, this definition was previously certified and is sufficiently definite. See Williams I, 2006 WL 3332844 at *4-5; Colbert v. Blagojevich, 2008 WL 4442597 *2-4 (N.D. Ill. Sept. 29, 2008).
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Case: 1:05-cv-04673 Document #: 325 Filed: 09/29/10 Page 15 of 24 PageID #:6750
out of an IMD. As expressed in a number of comments, many of .these Class Members and/or their family members believe they are getting good care in their present IMDs and presently want to stay there. The number of such residents is unknown. It is a significant number, but there is no indication it is close to a majority. Still, this is an interest of a significant number of Class Members and will be considered. Also, the Objector Group and a number of other independent objectors have expressly stated that, although they do not presently want to be transferred, they are not opposed to others having the right and opportunity to transfer to a community setting.
While the Objector Group and others who believe their particular IMD is providing them with good care do not want to lose the care they are presently receiving, there is no contention that they have a legal right to the particular placement they now have. There is no dispute, however, that Illinois has a legal obligation to provide sufficient opportunity for placement in the least restrictive environment, including a community placement if appropriate and not opposed. Even if the Consent Decree is not approved and Plaintiffs were required to proceed to the merits of their case, there would likely be relief granted requiring that Illinois provide adequate opportunities for community placement. Defendants have never contended that
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Case: 1:05-cv-04673 Document #: 325 Filed: 09/29/10 Page 16 of 24 PageID #:6751
Illinois presently satisfies federal requirements for providing
such opportunities nor do objectors contend Illinois does.
Instead, defendants raised a defense based on budgetary concerns
and the effect on other programs it offers. While the merits of
the case are not presently being resolved, the evidence before
the court is that community placement is less expensive for
Illinois, in large part due to the fact that there are larger
federal subsidies for such placements compared to an IMD. If
this case were to proceed to its merits, Illinois is unlikely to succeed on its financial defenses. 7 Even if the present
settlement were not to be approved, that does not mean that the
status quo will remain. One way or another change is likely to
occur in how Illinois delivers services to the mentally ill,
likely including less placements in IMDs. Approval of the
Consent Decree cannot be withheld based on the incorrect
assumption that lack of approval guarantees those who prefer IMDs
will stay in their particular IMDs whereas they will not if the
7While there is a fundamental-alteration defense in these types of lawsuits, see generally Radaszewski ex reI. Radaszewski v. Maram, 383 F.3d 599, 613-14 & n.5 (7th Cir. 2004), that defense does not necessarily come into play in the present situation of a settlement. Defendants are not presently contending that they do not want to pay for community placements because they would rather spend their limited resources on other services. In any event, community placement is less expensive for the state so it would not take resources away from being available for other services. Just as now, it would be left to the state to determine whether it wants to continue to commit resources to IMD placements.
- 16 -

Case: 1:05-cv-04673 Document #: 325 Filed: 09/29/10 Page 17 of 24 PageID #:6752
Consent Decree is approved. There is no legal basis for withholding approval because some IMDs may close nor is there a legal basis for requiring that the Consent Decree include a provision guaranteeing that persons who so desire can stay in their present placement at a particular IMD.
The Objector Group contends approval of the Consent Decree should be withheld until the details of the Implementation Plan are developed and incorporated in the Decree.' Consistent with comity and federalism, it is best to allow details of state programs, even ones developed pursuant to court order, to be initially developed by state actors subject to court oversight. See Lewis v. Casey, 518 U.S. 343, 362 (1996); Ass'n of Comm'y Org. for Reform Now v. Edgar, 56 F.3d 791, 797-98 (7th Cir. 1995); Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 312 (E.D.N.Y. 2009) ("DAI"). Contrary to contentions of objectors, the Decree sets forth details of the type of community services to be offered. Since Class Members have not yet been evaluated, they cannot presently know the specific services that will be offered to a particular Class Member, but the Decree does
'Class Plaintiffs contend objectors confuse wanting to know the details of their particular recommended placement with the details of the Implementation Plan. While that may be true of some objectors, the Objector Group and other objectors have complained that details of the Implementation plan itself have not yet been developed.
- 17 -

Case: 1:05-cv-04673 Document #: 325 Filed: 09/29/10 Page 18 of 24 PageID #:6753
inform Class Members as to what the range of services will be. The Decree does so by incorporating Rule 132.' The details to be developed in the Implementation Plan are not the particular types of services to be made available, but how to build the necessary services (hire, train, contract, requisition, etc.); how to fund this; how to determine the amount of need for different types of services; and how to ensure compliance with the benchmarks and other requirements of the Decree itself. The level of detail in the Decree itself is sufficient.
Another aspect of a claimed need for more details is the contention that details will be developed behind closed doors without the class notice and court approval required for the Decree itself. As previously discussed, however, the Implementation Plan is subject to court approval and will likely require state regulations which are published with an opportunity for public comment.
It is also questioned whether the provision of community services will be adequately funded. It is inappropriate to provide in the Decree that funding will come from a particular source. See United States v. Bd. of Educ. of Chicago, 717 F.2d 378, 384-85 (7th Cir. 1983). The Decree does require that
'Incorporating detailed Rule 132 does not intrude on federalism concerns since Rule 132 is a regulation already developed by a state agency.
- 18 -

Case: 1:05-cv-04673 Document #: 325 Filed: 09/29/10 Page 19 of 24 PageID #:6754
adequate resources will be provided and, if the state fails to meet this requirement, that is an enforceable provision of the Decree. Frew v. Hawkins, 540 U.S. 431, 440 (2004); Wis. Hosp, Ass'n v. Reivitz, 820 F.2d 863, 868 (7th Cir. 1987).
Objectors contend it should be required that psychiatrists and family participate in each resident's evaluation for placement in a Community-Based Setting. Objectors also contend residents should only be evaluated if they request to be evaluated. The Decree provides that the evaluations are to be conducted by a Qualified Professional, who is defined as a person "appropriately licensed, credentialed, trained and employed by a PASRR [Pre-Admission Screening and Resident Review] Agency." Decree" 4 (xix) ; 6(b). These are the same professionals who are responsible for determining if a person qualifies to be placed in an IMD. It is also provided that legal guardians are to participate in the evaluation. Id. , 7(c). Family, friends, or others may participate at the resident's request. Id." 4(viii), 7(c). The evaluation is to include an assessment of the resident's medical condition, including a consultation with the resident's psychiatrist and/or other professional staff "where appropriate." Id., 4 (viii) . Class Plaintiffs contend that this last provision will generally result in consultation with a psychiatrist, but leaves open the
- 19 -

Case: 1:05-cv-04673 Document #: 325 Filed: 09/29/10 Page 20 of 24 PageID #:6755
possibility that such a consultation is not always necessary,
particularly where the resident's designated psychiatrist has had
little contact with the resident.
The provisions of the Decree are consistent with the
mental health assessment provisions of Rule 132, which require
consideration of the person's family and medical history and
allow for the participation of family and physicians consistent
with confidentiality rules, but do not mandate that a family
member or psychiatrist participate in the assessment. See
59 Ill. Adm. Code § 132.148. These provisions of the Decree are
reasonable and consistent with state law.
The Objector Group contends only those who affirmatively
choose to be evaluated for community placements should be evaluated. 'D The language of the Decree, however, is consistent
with Olmstead, 527 U.S. at 607, which provides that community
lDThe Objector Group incorrectly contends the Decree is internally inconsistent regarding evaluations of residents who do not agree to participate or do not want to be placed in the community. The Decree provides that all Class Members are to be evaluated for Community-Based Services. Decree ~ 6(a). Each Class Member will be evaluated, but he or she is not required to participate in the evaluation. Id. If a Class Member is found to be appropriate for a Community-Based Setting, a service plan for such a transition is to be developed that reflects whether or not the Class Member desires to be placed in such a setting. Id. ~ 7(a). If the Class Member does not oppose a community placement, then the service plan must also include particulars as to necessary services and a timetable for the transition. Id. ~ 7(b).
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Case: 1:05-cv-04673 Document #: 325 Filed: 09/29/10 Page 21 of 24 PageID #:6756
placement that can be accommodated should be provided as long as it is not opposed by the recipient. See also Ligas ex reI. Foster v. Maram, 478 F.3d 771, 775 (7th Cir. 2007); Omega Healthcare Investors, Inc. v. Res-Care, Inc., 475 F.3d 853, 864 (7th Cir. 2007); Colbert, 2008 WL 4442597 at *1; Benjamin v. Dep't of Pub, Welfare of Commonwealth., 267 F.R.D. 456, 461-62 (M.D. Pa. 2010); DAI, 653 F. Supp. 2d at 267. The language of the Decree is also consistent with federal ADA regulations. ~ 29 C.F.R. § 35.130(e) (1) ("Nothing in this part shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit provided under the ADA or this part which such individual chooses not to accept.") (emphasis added). The opt-out nature of the evaluation procedure is consistent with applicable law.
V. GENERAL FACTORS Turning to the general factors, this settlement was reached after extensive discovery was taken in this case. Class Plaintiffs appear to have a strong case and, accordingly, the provisions of the Decree reflect achievement of the primary goals of this litigation. Despite potential strengths of the case, trial of this case would have been lengthy and expensive. Settlement avoided some of that expense. Competent counsel
- 21 -

Case: 1:05-cv-04673 Document #: 325 Filed: 09/29/10 Page 22 of 24 PageID #:6757
support the settlement and there is no indication of collusion. " The only factor that brings some pause in approving the settlement are the vigorous and heartfelt objections raised by many Class Members and their families. However, many of the objections are inconsistent with the terms of the Decree and/or the Decree is more consistent with the applicable law than proposed modifications. It is still a concern that those who are receiving appropriate and beneficial treatment in their current IMD placement might have to be moved to another IMD or elsewhere if some or many IMDs close down as a result of losing residents to community placements. But that could very well happen even if the Decree is not approved, moreover, and the Decree does not deprive Class Members of any right to their current placement that they otherwise have.
The United States Department of Justice has appeared and filed a statement of interest in this case. The Statement supports approval of the decree and notes that approval would be consistent with action taken in other states. See DAI, supra (E.D.N.Y.); Long v. Benson, 2008 WL 4571903 (N.D. Fla. Oct. 14, 2008), aff'd by published order, 2010 WL 2500349 (11th Cir.
"Magistrate Judge Denlow mediated settlement discussions between the parties. His efforts were valuable in achieving the settlement.
- 22 -

Case: 1:05-cv-04673 Document #: 325 Filed: 09/29/10 Page 23 of 24 PageID #:6758
June 22, 2010); Rolland v. Cellucci, 1999 WL 34815562 (D. Mass. Feb. 2, 1999).
For the foregoing reasons, the substantive provisions of the Decree will be approved.
The Decree provides for an award of $1,990,000 in attorneys fees, costs, and expenses. Decree ~ 22. This is substantially less than the lodestar for the work that was performed and represents a reasonable settlement. Also, this case does not involve a damages or other type of financial settlement in which money used to pay fees would otherwise be paid to the Class. Additionally, the fees will not be kept by any of the attorneys and instead will go to the advocacy groups that supported this litigation. The attorneys fees provision of the Decree is also approved.
In order to make today's ruling more readily available to Class Members, the entities that posted the Fairness Hearing notices on their websites are requested to promptly add a copy of today's ruling to those postings.
IT IS THEREFORE ORDERED that the settlement reached with the defendants in this case is found to be fair, adequate, and reasonable and is approved. The Clerk of the Court is directed to enter the Consent Decree. The Clerk of the Court is further directed to enter judgment in favor of Class Counsel and against
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Case: 1:05-cv-04673 Document #: 325 Filed: 09/29/10 Page 24 of 24 PageID #:6759

defendants in the amount of $1,990,000 representing attorney fees, costs, and expenses. The court retains jurisdiction to enforce the terms of the Consent Decree. Within 21 days, the parties shall submit their nominee(s) for Monitor, including the nominee(s) I curriculum vitae. A status hearing is set for October 28, 2010 at 11:00 a.m.

DATED:

SEPTEMBER

ENTER:

J ' ;;2

2010

!l;t)~ 7. ;J~t~
UNITED StATES DISTRICT JUDGE

- 24 -

 
 •

Case: 1:05-cv-04673 Document #: 337 Filed: 11/01/10 Page 1 of 1 PageID #:6806

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

ETHEL WILLIAMS, et aI.,
Plaintiffs, vs. PAT QUINN, et. aI., Defendants.

)

)

)

No. 05 C 4673

)

)

Judge Hart

)

Magistrate Judge DenIow

)

)

)

AGREED ORDER APPOINTING MONITOR IT IS HEREBY ORDERED that, pursuant to Paragraph 16 of the approved Consent
Decree in this case (Dkt. No. 326), the Court appoints Dennis Jones to serve as Monitor.

Dated: November _,,2010 Honorable William T. Hart

1

 
 Williams v. Blagojevich, Not Reported in F.Supp.2d (2006)

2006 WL 3332844 Only the Westlaw citation is currently available.
United States District Court, N.D. Illinois, Eastern Division.
Ethel WILLIAMS, Jan Wrightsell, Donell Hall, and Edward Brandon, on behalf of themselves and
all others similarly situated, Plaintiffs, v.
Rod BLAGOJEVICH, in his official capacity as Governor of the State of Illinois, Carol L. Adams, in her official capacity as Secretary of the Illinois Department of Human Services, Lorrie Stone, in her official capacity as Director of the Division of
Mental Health of the Illinois Department of Human Services, Eric E. Whitaker, in his official capacity as Director of the Illinois Department of Public Health, and Barry S. Maram, in his official capacity as Director of the Illinois Department of
Healthcare and Family Services, Defendants.
No. 05 C 4673. | Nov. 13, 2006.
Attorneys and Law Firms
Joseph Michael Russell, Kirkland & Ellis LLP, Amy F. Peterson, John Warren Whitcomb, Laura J. Miller, Equip For Equality, Benjamin S. Wolf, Roger Baldwin Foundation of Aclu, Inc., Kenneth M. Walden, Max P. Lapertosa, Access Living, Chicago, IL, for Plaintiffs.
Thomas A. Ioppolo, Karen Elaine Konieczny, Christopher Samuel Gange, Brent Douglas Stratton, Peter Chadwell Koch, Vihar R. Patel, Office of The Attorney General, Chicago, IL, Kerry R. Peck, Raymond Joseph Koenig, III, Peck, Bloom, Miller & Mitchell, Chicago, IL, for Defendants.
Opinion
MEMORANDUM OPINION AND ORDER
HART, J.
*1 The Americans with Disabilities Act (“ADA”) states that the isolation and segregation of individuals with disabilities is a form of discrimination. 42 U.S.C. §§ 12101(a)(2), (5). Title II of the ADA prohibits discrimination in the providing of public services, stating that no qualified individual with a disability shall, “by

reason of such disability,” be excluded from participation in, or be denied the benefits of, a public entity’s services, programs, or activities. Id. § 12132. Similarly, Section 504 of the Rehabilitation Act provides that no person with a disability shall “solely by reason of her or his disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
The ADA provides that the Attorney General shall issue regulations implementing Title II’s discrimination prohibitions. 42 U.S.C. § 12134(a). A regulation, known as the “integration regulation,” requires a “public entity [to] administer ... programs ... in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). A further provision, called the “reasonable-modifications regulation,” requires public entities to make reasonable modifications to avoid discrimination on the basis of disability, but does not require measures that would “fundamentally alter” the nature of the entity’s programs. Id. § 35.130(b)(7). See generally Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599, 607 (7th Cir.2004); Fisher v. Maram, 2006 WL 2505833 *3-4 (N.D.Ill. Aug.28, 2006).
Under the public services sections of the ADA, states are required to provide community based treatment for persons with mental disabilities when the state’s treatment professionals determine that such placement is appropriate, the affected person consents to the treatment, and placement can be reasonably accommodated, taking into account the resources available and the needs of others with mental disabilities. A reasonable accommodation can be “a reasonable modification to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services.” 42 U.S.C. § 12131(2); Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 783 (7th Cir.2002).
The four named plaintiffs in this class action are Illinois residents who have mental illnesses that substantially limit their ability to perform major life activities. They also have a record of such mental illnesses, and are regarded by defendants as having such mental illnesses. Plaintiffs, and others whom they claim to be similarly situated, are currently housed in intermediate care nursing homes classified by the Illinois Department of Healthcare and Family Services as Institutions for Mental Diseases (“IMDs”). These are institutions with more than 16 beds that are primarily engaged in providing diagnosis,
1

Williams v. Blagojevich, Not Reported in F.Supp.2d (2006)

treatment, or care of persons with mental disabilities. See 42 U.S.C. § 1396d(i). Plaintiffs are individuals with disabilities for purposes of the ADA and the Rehabilitation Act. See id. § 12102(2); 29 U.S.C. § 705(20). There are 27 IMDs in Illinois, each housing as many as 100 persons who have mental disabilities.
*2 The five defendants, all sued in their official capacity, are the Governor of the State of Illinois; the Secretary of the Illinois Department of Human Services; the Director of the Division of Mental Health of the Department of Human Services; the Director of the Illinois Department of Public Health; and the Director of the Illinois Department of Healthcare and Family Services.
Plaintiffs’ claims in their First Amended Complaint, stated to be on behalf of themselves and persons similarly situated, are: violation of the ADA mandate to administer services and programs in the most integrated setting (Count I); violation of the ADA prohibition on using methods of administration that subject plaintiffs to discrimination (Count II); failure to administer services in the most integrated setting appropriate in violation of the Rehabilitation Act (Count III); and violation of the Rehabilitation Act’s prohibition on using methods of administration that subject plaintiffs to discrimination (Count IV). Plaintiffs seek class certification; declaratory relief that defendants’ failure to provide plaintiffs with services in the most integrated setting appropriate to their needs violates the ADA and the Rehabilitation Act; and injunctive relief (i) requiring defendants to inform individuals with mental illnesses that they may be eligible for community services and have a choice of such service, (ii) requiring defendants to promptly determine eligibility for such service, (iii) prohibiting arbitrary denial of eligibility, and (iv) requiring prompt and appropriate services that allow plaintiffs and class members to live in the most integrated setting. Plaintiffs’ claims are based on a paradigmatic Supreme Court decision, Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), interpreting Title II of the ADA and Section 504 of the Rehabilitation Act.
Defendants have answered the First Amended Complaint, admitting some allegations and denying others. Defendants have also raised, as an affirmative defense, that the relief the plaintiffs seek would fundamentally alter Illinois’ mental health services and programs. Defendants also allege that the relief sought is not necessary because Illinois has already begun to implement a comprehensive deinstitutionalization program that will encompass plaintiffs and provide them with appropriate relief.

Presently before the court is plaintiffs Ethel Williams’ and Jan Wrightsell’s motion for class certification pursuant to Fed.R.Civ.P. 23(b)(2). The parties have conducted some discovery and submitted memoranda in support of and in opposition to the motion. Plaintiffs propose a class of all persons who: (1) have a mental illness; (2) with appropriate support and services, could live in the community; and (3) are institutionalized in privately-owned IMDs.
The Rule 23(a) requirements for certification of the proposed class are: (1) numerosity, which is not contested; (2) commonality of facts and law, which is not contested; (3) typicality between the class claims and those of the named parties, which is contested; and (4) adequacy of the representation by the named parties and the class counsel, which is not contested. Fed.R.Civ.P. 23(a). In addition, because plaintiffs seek to certify a class under Rule 23(b)(2), they must establish that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). This issue is not directly contested. Even as to those requirements that are not in dispute, the court has an independent duty to ensure the requirements are satisfied. Davis v. Hutchins, 321 F.3d 641, 649 (7th Cir.2003). It is found that numerosity, commonality, adequacy of counsel,1 and the Rule 23(b)(2) requirements are satisfied.

1

Although defendants do not expressly raise adequacy of

the class representatives, typicality is an issue that also

goes to adequacy of representation. See Robinson v.

Sheriff of Cook County, 167 F.3d 1155, 1157 (7th Cir.),

cert. denied, 528 U.S. 824, 120 S.Ct. 71, 145 L.Ed.2d

60 (1999). Adequacy of the representatives is addressed

below.

*3 In deciding whether the representatives seeking class certification have met their burden of proof, the court must make whatever legal and factual inquiries are necessary under Rule 23. However, the decision to certify a class generally does not depend on the strengths or weaknesses of the claims, but rather on whether the representatives and potential class satisfy the requirements of Rule 23. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 677 (7th Cir.), cert. denied, 534 U.S. 951, 122 S.Ct. 348, 151 L.Ed.2d 263 (2001); Ligas ex rel. Foster v. Maram, 2006 WL 644474 *2 (N.D.Ill. March 7, 2006).

2

Williams v. Blagojevich, Not Reported in F.Supp.2d (2006)

Defendants’ opposition to class certification is based upon their contentions that named plaintiffs are not adequate representatives of the class because they are not eligible for community living and because the proposed class definition is vague and overbroad.
In arguing that named plaintiffs are not eligible for community living and, therefore, are not entitled to relief or to represent the class, defendants refer to and analyze selected items contained in the medical records of the plaintiffs. Based on a legal analysis of the data, defendants argue that three of the plaintiffs have been found by treatment professionals to be in need of treatment at the intermediate level and that the fourth plaintiff desires to remain in an IMD. Plaintiffs contend that this argument improperly goes to the merits of the case, that some of the references are inaccurate, and that the conclusions suggested are wrong.
Defendants’ memorandum is a lay interpretation of parts of records prepared for and by medical professionals. The data goes into the merits of the individual situations and cannot be evaluated by the court at this stage of the proceedings without appropriate foundational and expert testimony. Moreover, the references do not appear to be directly related to whether or not plaintiffs are eligible for community living. There is no clear evidence that the possibility or option of community living has been disclosed to any plaintiff or that a medical professional has evaluated each plaintiff for this purpose. If any named plaintiff’s claim is extremely week and clearly without merit, that plaintiff would likely be an inadequate representative. See Robinson, 167 F.3d at 1157-58; Cavin v. Home Loan Center, Inc., 236 F.R.D. 387, 389 & n. 4 (N.D.Ill.2006). However, here there is no indication that the issues raised by defendants are atypical of the class as a whole. Nor can it be found that any named plaintiff has little chance of qualifying for community placement.
In any event, whether a particular plaintiff qualifies for community living is not essential to plaintiffs’ claims. Plaintiffs claim that defendants do not perform the necessary evaluations to make proper determinations regarding community placement. The requested relief is, first, that defendants perform a proper evaluation. Second, relief is requested in the form of requiring proper support and services for those qualified and agreeing to be placed in the community. To be entitled to the second form of relief, but not the first, at least some class members must qualify for community placement. The issues raised regarding the merits of named plaintiffs’ claims do not prevent named plaintiffs from being typical and adequate representatives. Cf. Cavin, 236 F.R.D. at 389.

*4 Should the evidence show, on summary judgment or at trial, that defendants are correct that a named plaintiff does not qualify for declaratory or injunctive relief because of facts distinct from those of the class in general, representation of the class by that plaintiff will not be permitted to continue. See Fed.R.Civ.P. 23(c)(1)(C). If all named plaintiffs are disqualified, other qualified class members (if they exist) will be substituted. See Robinson, 167 F.3d at 1158.
Defendants rely on Szabo, 249 F.3d at 675-76, a Rule 23(b)(3) application, for an investigation of the merits at this stage of the proceedings. There the court denied a nationwide class action asserting claims of breach of warranty, fraud, and negligent misrepresentation, because of issues of commonality, manageability, and individual damages. By contrast, plaintiffs bringing an action under Rule 23(b)(2) need merely show that defendants acted on grounds generally applicable to the class for which they seek declaratory and injunctive relief. As recently stated by Judge Holderman in a case making similar claims, “[w]here a defendant’s standardized conduct is at issue, this court does not require that the putative class members all suffer the same injury.” Ligas, 2006 WL 644474 at *3. Plaintiffs have alleged that defendants’ practices and policies effectively deny named plaintiffs and putative class members the opportunity to move from IMDs to more integrated community settings. Defendants do not deny that their conduct is generally applicable to the class as a whole. Because they do not involve individualized inquiry for the determination of damage awards, declaratory and injunctive actions often present common questions satisfying the standards for certification under Rule 23(b)(2). Baby Neal by Kanter v. Casey, 43 F.3d 48, 57 (3d Cir.1994); Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure Civil 3d § 1763 at 26-29 (2005); Ligas, 2006 WL 644474 at *3. Commonality and the Rule 23(b)(2) requirement are satisfied.
Defendants also contend that the proposed class definition is vague and overbroad, stating that mentally disabled persons residing at an Illinois IMD suffer from a wide array of ailments, and treatment depends on diverse circumstances. Further they state that it is unclear what medical and mental threshold the IMD residents must meet to be deemed able to live in the community with “appropriate supports and services.” Also, they observe that non-consenting patients do not have to be moved into the community.
As was previously discussed, the relief requested does not require that each member of the class be placed in the community. It only requires that a proper evaluation be
3

Williams v. Blagojevich, Not Reported in F.Supp.2d (2006)

offered and made and that appropriate support and services be available for those who qualify for and choose community placement. Therefore, it is not a requirement for class membership that the class member be willing to consent to community placement. A decision to consent to the recommended placement need not be made until after an appropriate evaluation is performed and the individual knows what type of placement is being recommended. Consent will not be made a requirement for class membership.
*5 Also, the first aspect of the relief requested is that the individual be provided a proper evaluation. A proper evaluation does not necessarily mean that the individual will qualify for community placement. Therefore, it is unnecessary to make qualification for community placement a requirement for membership in the class. It is sufficient to define class members as persons who, with appropriate support and services, may be able to live in an integrated community setting. That is a sufficient definition, particularly in a case like this where defendants’ conduct toward the class largely defines the class. See Ligas, 2006 WL 644474 at *4.
Taking each of the objections into consideration, the court will define a class for declaratory and injunctive relief consisting of Illinois residents who: (1) have a mental illness; (2) are institutionalized in a privately owned

Institution for Mental Diseases; and (3) with appropriate supports and services may be able to live in an integrated community setting.
IT IS THEREFORE ORDERED that:
(1) Plaintiffs’ motion for class certification is granted.
(2) Plaintiffs Ethel Williams and Jan Wrightsell are found to be adequate class representatives.
(3) Joseph M. Russell of Kirkland & Ellis, LLP and Benjamin S. Wolf of the Roger Baldwin Foundation of the American Civil Liberties Union are appointed class counsel.
(4) This case is certified as a class action with a class consisting of Illinois residents who: (a) have a mental illness; (b) are institutionalized in a privately owned Institution for Mental Diseases; and (c) with appropriate supports and services may be able to live in an integrated community setting.
(4) A status hearing will be held on December 6, 2006 at 11:00 a.m.
	  

4

 
 ADC4Sa0(sReev:. S1/8:50)J5u-dcgmve-n0t 4in6a7Ci3vilDCaosecument #: 335 Filed: 11/01/10 Page 1 of 1 PageID #:6804
United States District Court
Northern District of Illinois
Eastern Division

Ethel Williams, et al.
v.
Pat Quinn, et al.

AMENDED JUDGMENT IN A CIVIL CASE Case Number: 05 C 4673

D Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury rendered its verdict.

•

Decision by Court. This action came to hearing before the Court. The issues have

been heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that judgment is entered in favor of Class Counsel and against defendants in the amount of $1 ,990,000 representing attorney fees.

Date: 111112010

Michael W. Dobbins, Clerk of Court
/s/ Carol Wing, Deputy Clerk

 
 Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 1 of 38
DENLOW, PROTO, TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 4.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:05−cv−04673

Williams et al v. Quinn et al Assigned to: Honorable William T. Hart Cause: 42:12101 Americans with Disabilities Act
Plaintiff

Date Filed: 08/15/2005 Date Terminated: 09/29/2010 Jury Demand: Plaintiff Nature of Suit: 443 Civil Rights: Accommodations Jurisdiction: Federal Question

Ethel Williams

represented by Joseph Michael Russell Kirkland &Ellis LLP (Chicago) 300 N. LaSalle Chicago, IL 60654 (312)861−2379 Email: jrussell@kirkland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy F. Peterson Equip for Equality 20 North Michigan Suite 300 Chicago, IL 60602 (312) 341−0022 Email: amy@equipforequality.org ATTORNEY TO BE NOTICED

Angela Dickson Marston Kirkland &Ellis LLP (Chicago) 300 N. LaSalle Chicago, IL 60654 312 469 7335 Email: amarston@kirkland.com ATTORNEY TO BE NOTICED

Benjamin S. Wolf Roger Baldwin Foundation of ACLU, Inc. 180 North Michigan Avenue Suite 2300 Chicago, IL 60601−7401 (312) 201−9740 Email: bwolf@aclu−il.org ATTORNEY TO BE NOTICED

Edward B. Mullen , III Access Living 115 W. Chicago Ave. Chicago, IL 60610 312 640 2131 Email: emullen@accessliving.org ATTORNEY TO BE NOTICED

Elizabeth J. Kappakas Kirkland &Ellis LLP (Chicago) 300 N. LaSalle Chicago, IL 60654 312 469 7329 Email: bkappakas@kirkland.com TERMINATED: 09/21/2010

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 2 of 38
Ira Abraham Burnim Bazelon Center for Mental Health Law 1101 15th Street NW Suite 1212 Washington, DC 20005 (202)467−5730 ext 129
Jennifer Mathis Bazelon Center for Mental Health Law 1101 15th Street NW Suite 1212 Washington, DC 20005 (202)467−5730 ext 122 Email: jenniferm@bazelon.org ATTORNEY TO BE NOTICED
John Warren Whitcomb Equip for Equality 20 North Michigan Suite 300 Chicago, IL 60602 (312) 341−0022 Email: john@equipforequality.org ATTORNEY TO BE NOTICED
Karen B. Bower Bardon Center for Mental Health Law 1101 15th Street, NW Suite 1212 Washington, DC 20005 202 467 5730 ext 132 ATTORNEY TO BE NOTICED
Kendra Nicole Thompson Roger Baldwin Foundation of ACLU, Inc. 180 N. Michigan Avenue Suite 2300 Chicago, IL 60601 (312) 201−9740 Email: kthompson@aclu−il.org ATTORNEY TO BE NOTICED
Kenneth M Walden Access Living 115 West Chicago Avenue Chicago, IL 60654 (312) 640 − 2136 Fax: (312) 640 − 2139 Email: kwalden@accessliving.org ATTORNEY TO BE NOTICED
Laura J. Miller Equip for Equality 20 North Michigan Suite 300 Chicago, IL 60602 (312) 341−0022 Email: laura@equipforequality.org ATTORNEY TO BE NOTICED
Lori Nicole Turner ACLU Of Iliinois 180 N. Michigan Ave Suite 2300

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 3 of 38

Chicago, IL 60601 (312) 301−9740 ext. 336 Email: lturner@aclu−il.org ATTORNEY TO BE NOTICED

Max P Lapertosa U.S. Department of Justice 1800 G Street NW Room 7033 Washington, DC 20006 (202) 305−1077 Fax: (202 514−1116 Email: Max.Lapertosa@accessliving.org TERMINATED: 05/19/2008

Patricia A. Werner Access Living 115 West Chicago Ave. Chicago, IL 60654 312/640−2148 Fax: 312/640−2139 Email: pwerner@accessliving.org ATTORNEY TO BE NOTICED

Plaintiff Jan Wrightsell

represented by Joseph Michael Russell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy F. Peterson (See above for address) ATTORNEY TO BE NOTICED

Angela Dickson Marston (See above for address) ATTORNEY TO BE NOTICED

Benjamin S. Wolf (See above for address) ATTORNEY TO BE NOTICED

Edward B. Mullen , III (See above for address) ATTORNEY TO BE NOTICED

Elizabeth J. Kappakas (See above for address) TERMINATED: 09/21/2010

Ira Abraham Burnim (See above for address)

Jennifer Mathis (See above for address) ATTORNEY TO BE NOTICED

John Warren Whitcomb (See above for address) ATTORNEY TO BE NOTICED

Karen B. Bower (See above for address) ATTORNEY TO BE NOTICED

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 4 of 38

Plaintiff Gilbert Parham
Plaintiff Edward Brandon on behalf of themselves and all others similarly situated
Plaintiff Danny McLean

Kendra Nicole Thompson (See above for address) ATTORNEY TO BE NOTICED
Kenneth M Walden (See above for address) ATTORNEY TO BE NOTICED
Laura J. Miller (See above for address) ATTORNEY TO BE NOTICED
Lori Nicole Turner (See above for address) ATTORNEY TO BE NOTICED
Max P Lapertosa (See above for address) TERMINATED: 05/19/2008
Patricia A. Werner (See above for address) ATTORNEY TO BE NOTICED
represented by Patricia A. Werner (See above for address) ATTORNEY TO BE NOTICED
represented by Patricia A. Werner (See above for address) ATTORNEY TO BE NOTICED
represented by Tonya Gentry Newman Neal, Gerber &Eisenberg Two North LaSalle Street Suite 1700 Chicago, IL 60602 312 269 8000 Email: tnewman@ngelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Choslovsky Neal, Gerber &Eisenberg Two North LaSalle Street Suite 1700 Chicago, IL 60602 (312)269−8049 Email: wchoslovsky@ngelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven F. Pflaum Neal, Gerber &Eisenberg Two North LaSalle Street Suite 1700 Chicago, IL 60602 (312) 269−8000 Email: spflaum@ngelaw.com

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 5 of 38

ATTORNEY TO BE NOTICED

Plaintiff David Twomey

represented by Tonya Gentry Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Michelle Alper

represented by William Choslovsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Tonya Gentry Newman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Melissa Lee Meyers

represented by William Choslovsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Tonya Gentry Newman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Darnell Jones

represented by Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Tonya Gentry Newman (See above for address) ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Theda Goldstein

represented by Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 6 of 38

Plaintiff Jacqueline Lewis
Plaintiff Donna Blaha
Plaintiff Leah Wilson
Plaintiff Lois Yesinowski
Plaintiff

Tonya Gentry Newman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) ATTORNEY TO BE NOTICED
represented by Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED
Tonya Gentry Newman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) ATTORNEY TO BE NOTICED
represented by Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED
Tonya Gentry Newman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) ATTORNEY TO BE NOTICED
represented by Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED
Tonya Gentry Newman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) ATTORNEY TO BE NOTICED
represented by Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED
Tonya Gentry Newman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) ATTORNEY TO BE NOTICED

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 7 of 38

Jason Sherrell

represented by Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Tonya Gentry Newman (See above for address) ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Tom White

represented by Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Tonya Gentry Newman (See above for address) ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Denise Battle

represented by Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Tonya Gentry Newman (See above for address) ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Zena Swets

represented by Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Tonya Gentry Newman (See above for address) ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Lisa Swan

represented by Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Tonya Gentry Newman (See above for address) ATTORNEY TO BE NOTICED

William Choslovsky (See above for address)

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 8 of 38

ATTORNEY TO BE NOTICED

Plaintiff John Arado

represented by Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Tonya Gentry Newman (See above for address) ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Irene Hafner

represented by Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Tonya Gentry Newman (See above for address) ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Christopher Allen

represented by Tonya Gentry Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Brian Bonner

represented by Tonya Gentry Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Greg Brechon

represented by Tonya Gentry Newman (See above for address) LEAD ATTORNEY

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 9 of 38

ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Henry Thomas Coleman

represented by Tonya Gentry Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ilyse Friedman

represented by Tonya Gentry Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Father Julian Von Duerbeck

represented by Tonya Gentry Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Barbara Levin

represented by Tonya Gentry Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 10 of 38

William Choslovsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Alex Jenkins

represented by Tonya Gentry Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Peter Wilkins

represented by Tonya Gentry Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Paul Magit

represented by Tonya Gentry Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Harry Schneider

represented by Tonya Gentry Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Choslovsky (See above for address)

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 11 of 38

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ursula Levy

represented by Tonya Gentry Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Tom Withey

represented by Tonya Gentry Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Patricia Martin

represented by Tonya Gentry Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Choslovsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven F. Pflaum (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Pat Quinn in his official capacity as Governor of the State of Illinois

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

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 12 of 38

ATTORNEY TO BE NOTICED

Brent Douglas Stratton Office of the Attorney General 100 West Randolph Street Chicago, IL 60601 (312)814−2560 Email: bstratton@atg.state.il.us ATTORNEY TO BE NOTICED

Kerry R. Peck Peck, Bloom, Miller &Mitchell 105 West Adams 31st Floor Chicago, IL 60603 (312) 201−0900 Email: kpeck@peckbloom.com TERMINATED: 06/18/2009

Peter Chadwell Koch Office of the Attorney General 100 West Randolph Street Chicago, IL 60601 (312)814−6534 Email: pkoch@atg.state.il.us ATTORNEY TO BE NOTICED

Raymond Joseph Koenig , III Peck, Bloom, Austriaco &Mitchell, LLC 105 West Adams 31st Floor Chicago, IL 60603 (312)201−0900 Email: rkoenig@peckbloom.com TERMINATED: 06/18/2009

Timothy J. Ritchey Peck, Bloom, Austriaco &Mitchell, LLC 105 W. Adams 31st Floor Chicago, IL 60603 (312)201−0900 Email: tritchey@peckbloom.com TERMINATED: 06/18/2009

Vihar R Patel Enterprise Law Group, LLP 70 W. Madison Street, Suite 740 Chicago, IL 60602 312−578−0200 Fax: 312−578−0202 Email: vihar@enterpriselg.com ATTORNEY TO BE NOTICED

Defendant
Carol L Adams in her official capacity as Secretary of the Illinois Department of Human Services TERMINATED: 08/03/2010

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

Brent Douglas Stratton (See above for address) ATTORNEY TO BE NOTICED

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 13 of 38

Peter Chadwell Koch (See above for address) ATTORNEY TO BE NOTICED

Vihar R Patel (See above for address) ATTORNEY TO BE NOTICED

Defendant
Lorrie Stone in her official capacity as Director of the Division of Mental Health of Illinois Department of Human Services TERMINATED: 08/03/2010

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

Peter Chadwell Koch (See above for address) ATTORNEY TO BE NOTICED

Vihar R Patel (See above for address) ATTORNEY TO BE NOTICED

Defendant
Eric E Whitaker in his official capacity as Director of the Illinois Department of Public Health TERMINATED: 08/03/2010

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

Brent Douglas Stratton (See above for address) ATTORNEY TO BE NOTICED

Peter Chadwell Koch (See above for address) ATTORNEY TO BE NOTICED

Vihar R Patel (See above for address) ATTORNEY TO BE NOTICED

Defendant
Barry S Maram in his official capacity as Director of the Illinois Department of Healthcare and Family Services

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

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

Christopher Samuel Gange Illinois Attorney General's Office 160 North LaSalle Street

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 14 of 38

Suite N−1000 Chicago, IL 60601 (312)793−2380 Email: Christopher.Gange@illinois.gov ATTORNEY TO BE NOTICED

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

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

Brent Douglas Stratton (See above for address) ATTORNEY TO BE NOTICED

Peter Chadwell Koch (See above for address) ATTORNEY TO BE NOTICED

Vihar R Patel (See above for address) ATTORNEY TO BE NOTICED

Defendant
Lorrie Rickman−Jones in her official capacity as Director of the Division of Mental Health of Illinois Department of Human Services

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

Brent Douglas Stratton (See above for address) ATTORNEY TO BE NOTICED

Peter Chadwell Koch (See above for address) ATTORNEY TO BE NOTICED

Vihar R Patel (See above for address) ATTORNEY TO BE NOTICED

Defendant
Damon T. Arnold in his official capacity as Director of the Illinois Department of Public Health

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

Brent Douglas Stratton (See above for address) ATTORNEY TO BE NOTICED

Peter Chadwell Koch (See above for address) ATTORNEY TO BE NOTICED

Vihar R Patel (See above for address) ATTORNEY TO BE NOTICED

V.

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 15 of 38

Respondent Columbus Manor Residential Care

represented by Thomas Day Decker Thomas D. Decker &Associates, Ltd. 2100 W. 35th Street Chicago, IL 60609 (312) 922−4180 Fax: 773−252−7221 Email: deckerlawoffice@ameritech.net ATTORNEY TO BE NOTICED

Respondent Abbott House, LLC

represented by Robert K Neiman Much Shelist Denenberg Ament &Rubenstein, PC 191 N. Wacker Drive Suite 1800 Chicago, IL 60606 (312) 521−2000 Email: rneiman@muchshelist.com ATTORNEY TO BE NOTICED

Respondent Albany Care, Inc.

represented by Robert K Neiman (See above for address) ATTORNEY TO BE NOTICED

Respondent Belmont Nursing Home, Inc.

represented by Robert K Neiman (See above for address) ATTORNEY TO BE NOTICED

Respondent Bryn Mawr Care, Inc.

represented by Robert K Neiman (See above for address) ATTORNEY TO BE NOTICED

Respondent Central Plaza Residential Home, Inc.

represented by Robert K Neiman (See above for address) ATTORNEY TO BE NOTICED

Respondent Grasmere Place, LLC

Respondent Lydia Healthcare, LLC

Respondent
Monroe Pavilion Health Treatment Center, Inc.

Respondent Somerset Place, LLC

Respondent Wilson Care, Inc.

represented by Robert K Neiman (See above for address) ATTORNEY TO BE NOTICED

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 16 of 38

Respondent Clayton Residential Home, Inc.
Respondent Thornton Heights Terrace, Ltd.
Respondent Sharon Health Care Woods, Inc.
Respondent Greenwood Care, Inc.
Respondent Somerset Place, LLC Respondent Bayside Terrace, LLC
Movant United States of America

represented by Robert K Neiman (See above for address) ATTORNEY TO BE NOTICED
represented by Robert K Neiman (See above for address) ATTORNEY TO BE NOTICED
represented by Robert K Neiman (See above for address) ATTORNEY TO BE NOTICED
represented by Robert K Neiman (See above for address) ATTORNEY TO BE NOTICED
represented by Robert K Neiman (See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/15/2005 08/15/2005 08/15/2005 08/15/2005 08/15/2005 08/15/2005 08/26/2005 08/26/2005 09/22/2005
10/14/2005

# Docket Text
1 COMPLAINT filed by Ethel Williams, Jan Wrightsell; Jury Demand.(lcw, ) (Entered: 08/17/2005)
2 CIVIL Cover Sheet. (lcw, ) (Entered: 08/17/2005)
3 ATTORNEY Appearance for Plaintiffs Ethel Williams, Jan Wrightsell by Joseph Michael Russell. (lcw, ) (Entered: 08/17/2005)
4 ATTORNEY Appearance for Plaintiffs Ethel Williams, Jan Wrightsell by Benjamin S. Wolf. (lcw, ) (Entered: 08/17/2005)
5 ATTORNEY Appearance for Plaintiffs Ethel Williams, Jan Wrightsell by Amy F. Peterson. (lcw, ) (Entered: 08/17/2005)
7 SUMMONS Issued as to Defendants Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram. (lcw, ) (Entered: 08/17/2005)
8 ATTORNEY Appearance for Defendant Barry S Maram by Christopher Samuel Gange (Gange, Christopher) (Entered: 08/26/2005)
9 ATTORNEY Appearance for Defendant Barry S Maram by Karen Elaine Konieczny (Konieczny, Karen) (Entered: 08/26/2005)
10 ATTORNEY Appearance for Defendants Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker by Brent Douglas Stratton, Vihar R Patel, Peter Chadwell Koch, Thomas A. Ioppolo. (lcw, ) (Entered: 09/27/2005)
11 MOTION by Defendants Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram for extension of time to Answer or Otherwise Plead (Ioppolo, Thomas)

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 17 of 38

10/14/2005 10/14/2005 10/14/2005 10/14/2005
10/14/2005 10/14/2005
10/19/2005
10/19/2005 11/10/2005 11/10/2005 11/10/2005 11/14/2005 11/15/2005 11/16/2005
12/07/2005 12/07/2005 12/07/2005

(Entered: 10/14/2005)
12 NOTICE of Motion by Thomas A. Ioppolo for presentment of motion for extension of time 11 before Honorable William T. Hart on 10/19/2005 at 09:30 AM. (Ioppolo, Thomas) (Entered: 10/14/2005)
13 Amended NOTICE of Motion by Thomas A. Ioppolo for presentment of motion for extension of time 11 before Honorable William T. Hart on 10/19/2005 at 11:00 AM. (Ioppolo, Thomas) (Entered: 10/14/2005)
14 MOTION by Defendant Rod Blagojevich for leave to file am additional appearance (gma, ) (Entered: 10/14/2005)
15 NOTICE of Motion by Rod Blagojevich for presentment of MOTION by Defendant Rod Blagojevich for leave to file am additional appearance 14 before Honorable William T. Hart on 10/19/2005 at 11:00 AM. (gma, ) (Entered: 10/14/2005)
16 MOTION by Defendant Rod Blagojevich for extension of time to respond to complaint for relief(gma, ) (Entered: 10/14/2005)
17 NOTICE of Motion by Rod Blagojevich for presentment of MOTION by Defendant Rod Blagojevich for extension of time to respond to complaint for relief 16 before Honorable William T. Hart on 10/19/2005 at 11:00 AM. (gma, ) (Entered: 10/14/2005)
18 MINUTE entry before Judge William T. Hart : Motion of Kerry R. Peck for leave to file an appearance as additional counsel for defendant Blagojevich is granted. Defendant Blagojevich's motion for extension of time to respond to complaint is granted. Defendants Adams, Stone, Whitaker and Maram's motion for extension of time to answer or otherwise plead is granted. All defendants are given to 11/14/05 to answer or otherwise plead. Status hearing set for 11/16/05 at 11:00 a.m. Mailed notice (cdy, ) (Entered: 10/21/2005)
19 ATTORNEY Appearance for Defendant Rod Blagojevich by Raymond Joseph Koenig, III, Kerry R. Peck; Notice of Filing. (cem, ) Modified on 10/24/2005 (cem, ). (Entered: 10/24/2005)
20 MOTION by Defendants Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram for extension of time to Answer or Otherwise Plead (Ioppolo, Thomas) (Entered: 11/10/2005)
21 NOTICE of Motion by Thomas A. Ioppolo for presentment of motion for extension of time 20 before Honorable William T. Hart on 11/16/2005 at 11:00 AM. (Ioppolo, Thomas) (Entered: 11/10/2005)
24 SECOND MOTION by defendant Rod Blagojevich for extension of time to respond to complaint for relief; Notice. (cdy, ) (Entered: 11/15/2005)
22 RESPONSE in Opposition to Defendants' Motion for Extension of Time (Russell, Joseph) (Entered: 11/14/2005)
23 CERTIFICATE of Service by Plaintiffs Ethel Williams, Jan Wrightsell regarding response in opposition to motion 22 (Russell, Joseph) (Entered: 11/15/2005)
25 MINUTE entry before Judge William T. Hart : Motion for extension of time 20 is granted. Motion for extension of time 24 is granted. All defendants are given to 12/7/2005 to answer or otherwise plead. Status hearing reset for 12/14/2005 at 11:00 AM. Mailed notice (clw, ) (Entered: 11/17/2005)
26 Defendants' ANSWER to Complaint by Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram(Ioppolo, Thomas) (Entered: 12/07/2005)
27 NOTICE by Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram re answer to complaint 26 (Ioppolo, Thomas) (Entered: 12/07/2005)
28 ANSWER to plaintiffs' complaint by Rod Blagojevich; Notice.(cdy, ) . (Entered: 12/12/2005)

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 18 of 38

12/14/2005 01/18/2006 01/30/2006 01/30/2006 03/21/2006 04/12/2006
04/24/2006 04/24/2006 04/24/2006 04/25/2006 04/25/2006 04/26/2006 04/26/2006 04/26/2006 04/26/2006
04/27/2006 05/24/2006 05/24/2006
05/31/2006

29 MINUTE entry before Judge William T. Hart : Status hearing held on 12/14/2005. Status hearing set for 1/18/2006 at 11:00 AM. (clw, ) (Entered: 12/14/2005)
30 MINUTE entry before Judge William T. Hart : Status hearing held on 1/18/2006. Status hearing set for 3/29/2006 at 11:00 AM. (clw, ) (Entered: 01/18/2006)
31 MINUTE entry before Judge William T. Hart : Enter agreed protective order. Mailed notice (mjc, ) (Entered: 02/01/2006)
32 AGREED PROTECTIVE Order Signed by Judge William T. Hart on 1/30/2006.(mjc, ) (Entered: 02/01/2006)
33 MINUTE entry before Judge William T. Hart : Status hearing reset for 4/12/2006 at 11:00 AM. (clw, ) (Entered: 03/21/2006)
34 MINUTE entry before Judge William T. Hart : Status hearing held on 4/12/2006. Plaintiffs will notice up for 4/26/2006 a motion for leave to file an amended complaint. Motion for class certification is to be filed by 4/26/2006; answer due 5/24/2006; reply due 6/14/2006. Status hearing set for 4/26/2006 at 11:00 AM. (clw, ) (Entered: 04/12/2006)
35 ATTORNEY Appearance for Plaintiffs Ethel Williams, Jan Wrightsell by John Warren Whitcomb (Whitcomb, John) (Entered: 04/24/2006)
36 ATTORNEY Appearance for Plaintiffs Ethel Williams, Jan Wrightsell by Laura J. Miller (Miller, Laura) (Entered: 04/24/2006)
37 MOTION by Plaintiffs Ethel Williams, Jan Wrightsell for leave to file Amended Complaint (Russell, Joseph) (Entered: 04/24/2006)
38 ATTORNEY Appearance for Plaintiffs Ethel Williams, Jan Wrightsell by Max P Lapertosa (Lapertosa, Max) (Entered: 04/25/2006)
39 NOTICE of Motion by Joseph Michael Russell for presentment of motion for leave to file 37 before Honorable William T. Hart on 4/26/2006 at 11:00 AM. (Russell, Joseph) (Entered: 04/25/2006)
40 FIRST AMENDED complaint by Ethel Williams, Jan Wrightsell against all defendants (Russell, Joseph) (Entered: 04/26/2006)
41 NOTICE by all plaintiffs of Motion for Certification of Class and Memorandum of Law (Attachments: # 1 Motion for Certification of Class and Memorandum of Law)(Russell, Joseph) (Entered: 04/26/2006)
42 MOTION by Plaintiffs Ethel Williams, Jan Wrightsell to certify class (Russell, Joseph) (Entered: 04/26/2006)
43 MINUTE entry before Judge William T. Hart : Status hearing held. Plaintiffs' motion for leave to file first amended complaint attached to said motion 37 is granted; defendants are given to 5/24/2006 to answer or otherwise plead. Mailed notice (cdy, ) (Entered: 04/27/2006)
44 ATTORNEY Appearance for Plaintiffs Ethel Williams, Jan Wrightsell by Kenneth M Walden (cdy, ) (Entered: 05/02/2006)
45 JOINT MOTION by Defendants for extension of time to respond to first amended complaint for relief and motion for certification of class (gma, ) (Entered: 05/25/2006)
46 NOTICE of Motion by all defendants for presentment of JOINT MOTION by Defendants for extension of time to respond to first amended complaint for relief and motion for certification of class 45 before Honorable William T. Hart on 5/31/2006 at 11:00 AM. (gma, ) (Entered: 05/25/2006)
47 MINUTE entry before Judge William T. Hart : Motion hearing held. Defendants' joint motion for extension of time 45 is granted in part and denied in part. Defendants are given to 6/7/2006 to respond to the first amended complaint. All class discovery is to be completed by 6/30/2006. Defendants are given an extension of time to 7/14/2006 to respond to the motion for class certification; reply is extended to 7/25/2006. Status hearing set for 7/26/2006 at 11:00 AM. (clw, )

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 19 of 38

06/07/2006 06/07/2006 06/07/2006 06/07/2006 06/28/2006 06/28/2006
06/28/2006 06/29/2006 06/30/2006 06/30/2006
07/07/2006
07/07/2006 07/28/2006 07/28/2006 07/28/2006 07/28/2006 07/28/2006 08/07/2006 08/07/2006

(Entered: 05/31/2006)
48 ANSWER to amended complaint by Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram(Ioppolo, Thomas) (Entered: 06/07/2006)
49 NOTICE by Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram re answer to amended complaint 48 (Ioppolo, Thomas) (Entered: 06/07/2006)
50 ANSWER to amended complaint by Rod Blagojevich(Koenig, Raymond) (Entered: 06/07/2006)
51 NOTICE by Rod Blagojevich re answer to amended complaint 50 (Koenig, Raymond) (Entered: 06/07/2006)
52 MOTION by Defendants Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram To Permit Release of Documents Relating to the Named Plaintiffs (Ioppolo, Thomas) (Entered: 06/28/2006)
53 EXHIBIT by Defendants Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram Agreed Order regarding MOTION by Defendants Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram To Permit Release of Documents Relating to the Named Plaintiffs 52 (Ioppolo, Thomas) (Entered: 06/28/2006)
54 NOTICE of Motion by Thomas A. Ioppolo for presentment of motion for miscellaneous relief 52 before Honorable William T. Hart on 7/5/2006 at 11:00 AM. (Ioppolo, Thomas) (Entered: 06/28/2006)
55 MINUTE entry before Judge William T. Hart : Defendants' agreed motion to permit release of documents relating to the named plaintiffs 52 is reset to 7/7/2006 at 11:00 AM. (clw, ) (Entered: 06/29/2006)
56 JOINT MOTION by Defendants for extension of time to respond to plaintiffs' motion for certification of class(gma, ) (Entered: 07/05/2006)
NOTICE of Motion by defendants for presentment of JOINT MOTION by Defendants for extension of time to respond to plaintiffs' motion for certification of class 56 before Honorable William T. Hart on 7/7/2006 at 11:00 AM. (gma, ) (Entered: 07/05/2006)
57 MINUTE entry before Judge William T. Hart : Motion hearing held. Defendants' joint motion for extension of time to respond to plaintiffs' motion for certification of class is granted; response is extended to 7/28/06; reply is extended to 8/11/2006. Status hearing set for 7/26/06 is stricken. Defendants' agreed motion to permit release of documents relating to the named plaintiffs is granted. Enter Agreed Order. Mailed (vmj, ) (Entered: 07/11/2006)
58 AGREED ORDER Signed by Judge William T. Hart on 7/7/2006(vmj, ) (Entered: 07/11/2006)
59 RESPONSE to Motion for Certification of Class (Koenig, Raymond) (Entered: 07/28/2006)
60 NOTICE by Rod Blagojevich re response in opposition to motion 59 for certification of class (Koenig, Raymond) (Entered: 07/28/2006)
61 MEMORANDUM by Rod Blagojevich in Support of response in opposition to motion 59 for certification of class (Koenig, Raymond) (Entered: 07/28/2006)
62 RESPONSE by Defendants Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram to Plaintiff's Motion for Class Certification (Ioppolo, Thomas) (Entered: 07/28/2006)
63 NOTICE by Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram re Response 62 (Ioppolo, Thomas) (Entered: 07/28/2006)
64 MOTION by Plaintiff Ethel Williams for extension of time for reply brief (Russell, Joseph) (Entered: 08/07/2006)
65 Presentment NOTICE of Motion by Joseph Michael Russell for presentment of motion for extension of time 64 before Honorable William T. Hart on 8/9/2006 at

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 20 of 38

08/09/2006 08/18/2006 08/18/2006 11/13/2006
11/13/2006 12/06/2006 12/20/2006 12/20/2006 12/20/2006 12/20/2006 01/03/2007
01/10/2007 01/31/2007 03/05/2007 03/05/2007 03/06/2007

11:00 AM. (Russell, Joseph) (Entered: 08/07/2006)
66 MINUTE entry before Judge William T. Hart : Plaintiffs' agreed motion for extension of time 64 is granted. Reply to motion for certification of class 42 is extended to 8/18/2006. (clw, ) (Entered: 08/09/2006)
67 REPLY by Plaintiffs Ethel Williams, Jan Wrightsell to response in opposition to motion 59 (Russell, Joseph) (Entered: 08/18/2006)
68 NOTICE by Ethel Williams, Jan Wrightsell re reply 67 (Russell, Joseph) (Entered: 08/18/2006)
69 MINUTE entry before Judge William T. Hart : Plaintiff's motion for class certification 42 is granted. Plaintiffs Ethel Williams and Jan Wrightsell are found to be adequate class representatives. Joseph M. Russell of Kirkland &Ellis, LLP and Benjamin S. Wolf of the Roger Baldwin Foundation of the American Civil Liberties Union are appointed class counsel. This case is certified as a class action with a class consisting of Illinois residents who: (a) have a mental illness; (b) are institutionalized in a privately owned Institution for Mental Diseases; and (c) with appropriate supports and services may be able to live in an integrated community setting. A status hearing will be held on 12/6/2006 at 11:00 AM. (td, ) (Entered: 11/16/2006)
70 MEMORANDUM Opinion and Order Signed by Judge William T. Hart on 11/13/2006.(td, ) (Entered: 11/16/2006)
71 MINUTE entry before Judge William T. Hart : Status hearing held on 12/6/2006. Discovery plan is due by 12/20/2006. Status hearing set for 1/3/2007 at 11:00 AM. Mailed notice (clw, ) (Entered: 12/06/2006)
72 Defendants' Joint Proposed Discovery Schedule by Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram (Ioppolo, Thomas) (Entered: 12/20/2006)
73 NOTICE by Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram re other 72 (Ioppolo, Thomas) (Entered: 12/20/2006)
74 Plaintiffs' Proposed Discovery Plan by Ethel Williams, Jan Wrightsell (Russell, Joseph) (Entered: 12/20/2006)
75 NOTICE by Ethel Williams, Jan Wrightsell re other 74 Plaintiffs' Proposed Discovery Plan (Russell, Joseph) (Entered: 12/20/2006)
76 MINUTE entry before Judge William T. Hart :Status hearing held and continued to April 18, 2007 at 11:00 a.m. Rule 26(a)(1) disclosures by January 31, 2007. Initial Rule 30(b)(6) depositions to be scheduled by February 15, 2007. First requests for documents and first interrogatories to be issued by April 2, 2007. Fact discovery to be completed by October 1, 2007. Experts' reports due by December 3, 2007. Experts' discovery to be completed by February 4, 2008. Parties are limited to 30 depositions each. Parties are limited to 60 interrogatories each. Parties are limited to 30 requests for admissions each. Parties may refer to Ligas v. Maram documents (05 C 4331) in response to any discovery requests. Additional parties may not be added after September 28, 2007. Mailed notice (clw, ) (Entered: 01/03/2007)
77 TRANSCRIPT of proceedings for the following dates: 12/6/2006; Before the Honorable William T. Hart. (td, ) (Entered: 01/11/2007)
78 ATTORNEY Appearance for Plaintiffs Ethel Williams, Jan Wrightsell by Lori Nicole Turner (Turner, Lori) (Entered: 01/31/2007)
79 MOTION by Plaintiffs Ethel Williams, Jan Wrightsell to compel discovery (Attachments: # 1 Exhibit Exhibits 1−6)(Wolf, Benjamin) (Entered: 03/05/2007)
80 NOTICE of Motion by Benjamin S. Wolf for presentment of motion to compel 79 before Honorable William T. Hart on 3/7/2007 at 11:00 AM. (Wolf, Benjamin) (Entered: 03/05/2007)
81 MINUTE entry before Judge William T. Hart :Hearing on plaintiffs' motion to compel discovery 79 is reset to 3/21/2007 at 11:00 AM.Mailed notice (clw, )

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 21 of 38

03/19/2007 03/19/2007 03/21/2007
04/05/2007 04/05/2007 04/13/2007
04/13/2007 04/17/2007
05/02/2007 09/10/2007 09/10/2007 09/10/2007 09/10/2007 09/12/2007
10/02/2007 10/02/2007 10/05/2007

(Entered: 03/06/2007)
82 MOTION by Plaintiffs Ethel Williams, Jan Wrightsell to compel (Second Motion to Compel) (Attachments: # 1 Exhibit 1−3)(Wolf, Benjamin) (Entered: 03/19/2007)
83 NOTICE of Motion by Benjamin S. Wolf for presentment of motion to compel 82 before Honorable William T. Hart on 3/21/2007 at 11:00 AM. (Wolf, Benjamin) (Entered: 03/19/2007)
84 MINUTE entry before Judge William T. Hart :Motion hearing held. Plaintiffs' motion to compel discovery 79 is granted; Rule 30(b)(6) depositions are to take place by 4/30/2007. Plaintiffs' second motion to compel discovery 82 is granted; documents are to be produced by 4/11/2007. Plaintiffs are to submit a signature order.Status hearing reset to 5/23/2007 at 11:00 AM.Mailed notice (clw, ) (Entered: 03/22/2007)
85 MINUTE entry before Judge William T. Hart : Enter Order regarding Rule 30(b)(6) witnesses and production of documents. Mailed notice (td, ) (Entered: 04/10/2007)
86 ORDER Signed by Judge William T. Hart on 4/5/2007. (td, ) (Entered: 04/10/2007)
87 MOTION by Defendants Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram for extension of time to Respond to Interrogatories and Document Production Request (Attachments: # 1 Exhibit A−Letter to Mr. Wolf)(Ioppolo, Thomas) (Entered: 04/13/2007)
88 NOTICE of Motion by Thomas A. Ioppolo for presentment of extension of time, 87 before Honorable William T. Hart on 4/18/2007 at 11:00 AM. (Ioppolo, Thomas) (Entered: 04/13/2007)
89 MINUTE entry before Judge William T. Hart :Motion hearing set for 4/18/2007 is stricken. Defendants' motion for extension of time to 4/26/2007 to respond to interrogatories and document production request 87 is granted.Status hearing set for 5/2/2007 at 11:00 AM.Mailed notice (clw, ) (Entered: 04/17/2007)
90 MINUTE entry before Judge William T. Hart :Status hearing held on 5/2/2007. Parties are to submit a written status report by 9/10/2007.Status hearing set for 9/12/2007 at 11:00 AM.Mailed notice (clw, ) (Entered: 05/02/2007)
91 STATUS Report (Plaintiffs') by Ethel Williams, Jan Wrightsell (Wolf, Benjamin) (Entered: 09/10/2007)
92 JOINT MOTION by Parties for extension of time to conduct discovery; Notice. (td, ) (Entered: 09/12/2007)
93 NOTICE of Motion by Kerry R. Peck for presentment of motion for extension of time to conduct discovery 92 before Honorable William T. Hart on 9/12/2007 at 11:00 AM. (td, ) (Entered: 09/12/2007)
94 STATUS Report by Rod Blagojevich. (td, ) (Entered: 09/12/2007)
95 MINUTE entry before Judge William T. Hart :Status hearing held. Joint motion for extension of time to conduct discovery 92 is granted as to extending fact discovery to 12/31/2007.Status hearing set for 1/9/2008 at 11:00 AM.Mailed notice (clw, ) (Entered: 09/12/2007)
96 MOTION by Defendants Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram for Entry of Supplemental Protective Order (Attachments: # 1 Exhibit A)(Ioppolo, Thomas) (Entered: 10/02/2007)
97 NOTICE of Motion by Thomas A. Ioppolo for presentment of motion for miscellaneous relief 96 before Honorable William T. Hart on 10/10/2007 at 11:00 AM. (Ioppolo, Thomas) (Entered: 10/02/2007)
98 ATTORNEY Appearance for Columbus Manor Residential Care, subpoena respondent (Decker, Thomas) (Entered: 10/05/2007)

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 22 of 38

10/05/2007 10/05/2007 10/09/2007 10/09/2007 10/09/2007 10/10/2007
10/10/2007 10/15/2007 10/15/2007 10/16/2007 10/16/2007 10/17/2007
10/19/2007
10/19/2007 10/22/2007 10/22/2007

99 MOTION by Respondent Columbus Manor Residential Care to quash subpoena (Decker, Thomas) (Entered: 10/05/2007)
100 NOTICE of Motion by Thomas Day Decker for presentment of motion to quash 99 before Honorable William T. Hart on 10/10/2007 at 11:00 AM. (Decker, Thomas) (Entered: 10/05/2007)
101 ATTORNEY Appearance for Defendant Rod Blagojevich by Timothy J. Ritchey (Ritchey, Timothy) (Entered: 10/09/2007)
102 MOTION by Defendants Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram to quash Subpoenas (Attachments: # 1 Exhibit Exhibits A − C)(Ritchey, Timothy) (Entered: 10/09/2007)
103 NOTICE by Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram re MOTION by Defendants Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram to quash Subpoenas 102 (Ritchey, Timothy) (Entered: 10/09/2007)
104 MINUTE entry before Judge William T. Hart : Motion hearing held. Defendants' agreed Motion for entry of supplemental protective order 96 is granted. Motion of movant Columbus Manor Residential Care for leave to file motion to quash subpoena 99 is denied without prejudice. Briefing schedule set on defendants' joint motion to quash subpoenas 102 as follows: response due 10/16/2007; reply due 10/23/2007. Status hearing reset to 10/31/07 at 11:00 a.m. Enter Agreed Order Supplementing Protective Order.Mailed notice (kw, ) (Entered: 10/15/2007)
105 AGREED ORDER Supplementing Protective Order Signed by Judge William T. Hart on 10/10/2007.(kw, ) (Entered: 10/15/2007)
106 MOTION by Respondent Columbus Manor Residential Care to file instanter (Attachments: # 1 Exhibit Dr. Rubin Letter)(Decker, Thomas) (Entered: 10/15/2007)
107 NOTICE of Motion by Thomas Day Decker for presentment of motion to file instanter 106 before Honorable William T. Hart on 10/17/2007 at 11:00 AM. (Decker, Thomas) (Entered: 10/15/2007)
108 RESPONSE by Ethel Williams, Jan Wrightsellin Opposition to MOTION by Defendants Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram to quash Subpoenas 102 (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit c)(Russell, Joseph) (Entered: 10/16/2007)
109 NOTICE by all plaintiffs re response in opposition to motion, 108 (Russell, Joseph) (Entered: 10/16/2007)
110 MINUTE entry before Judge William T. Hart :Motion hearing held. Movant Columbus Manor Residential Care's motion for leave to file instanter motion to quash or modify subpoena 106 is granted. Response to motion to quash or modify subpoena is due by 10/19/2007; reply due 10/23/2007; rule by mail.Mailed notice (clw, ) (Entered: 10/17/2007)
111 RESPONSE by Ethel Williams, Jan Wrightsellin Opposition to MOTION by Defendants Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram to quash Subpoenas 102 Opposition to Motion by Columbus Manor to Quash Subpoena (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Russell, Joseph) (Entered: 10/19/2007)
112 NOTICE by all plaintiffs re response in opposition to motion, 111 Opposition to Columbus Manor Motion to Quash (Russell, Joseph) (Entered: 10/19/2007)
113 INCORRECT document was linked.(Wolf, Benjamin) Modified by Clerk's Office on 10/23/2007. (Entered: 10/22/2007)
114 NOTICE of Motion by Benjamin S. Wolf for presentment of motion for leave to file 113 before Honorable William T. Hart on 10/24/2007 at 11:00 AM. (Wolf, Benjamin) (Entered: 10/22/2007)

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 23 of 38

10/22/2007 10/22/2007 10/22/2007
10/22/2007 10/23/2007 10/23/2007 10/23/2007 10/23/2007 10/23/2007 10/23/2007 10/29/2007 10/31/2007
10/31/2007 10/31/2007 10/31/2007 11/01/2007

115 CERTIFICATE of Service by Benjamin S. Wolf on behalf of all plaintiffs regarding notice of motion 114 , MOTION by Plaintiffs Ethel Williams, Jan Wrightsell for leave to file Revised Declaration 113 (Wolf, Benjamin) (Entered: 10/22/2007)
116 MOTION by Plaintiffs Ethel Williams, Jan Wrightsell for leave to file Revised Declaration (refiled Document #113) (Attachments: # 1 Revised Declaration of Jacob Kraemer Tebes, Madelon Visitainer Baranoski and Paul Thomas Amble)(Wolf, Benjamin) (Entered: 10/22/2007)
117 MOTION by Respondents Abbott House, LLC, Albany Care, Inc., Belmont Nursing Home, Inc., Bryn Mawr Care, Inc., Central Plaza Residential Home, Inc., Grasmere Place, LLC, Lydia Healthcare, LLC, Monroe Pavilion Health Treatment Center, Inc., Somerset Place, LLC, and Wilson Care, Inc. to quash (Levinson, Thomas) Modified by Clerk's Office on 10/23/2007 to reflect proper filers. (Entered: 10/22/2007)
118 NOTICE of Motion by Thomas M. Levinson for presentment of motion to quash 117 before Honorable William T. Hart on 10/31/2007 at 11:00 AM. (Levinson, Thomas) (Entered: 10/22/2007)
119 NOTICE of Correction regarding MOTION by Plaintiffs Ethel Williams, Jan Wrightsell for leave to file Revised Declaration 113 . (td, ) (Entered: 10/23/2007)
120 REPLY by Respondent Columbus Manor Residential Care to notice of motion 107 , notice of motion 100 in support of its Motion to Quash or Modify Subpoena (Attachments: # 1 Exhibit letter# 2 Exhibit Curriculum vitae)(Decker, Thomas) (Entered: 10/23/2007)
121 NOTICE by Columbus Manor Residential Care re reply 120 (Decker, Thomas) (Entered: 10/23/2007)
122 REPLY by Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram to response in opposition to motion, 108 to quash subpoenas (Ritchey, Timothy) (Entered: 10/23/2007)
123 NOTICE by all defendants re reply to response to motion 122 to quash subpoenas (Ritchey, Timothy) (Entered: 10/23/2007)
124 REPLY Memorandum in Support of Joint Motion to Quash Subpoenas (Levinson, Thomas) (Entered: 10/23/2007)
125 TRANSCRIPT of proceedings for the following dates: 9/12/2007; Before the Honorable William T. Hart. (Document not scanned) (td, ) (Entered: 10/31/2007)
126 MINUTE entry before Judge William T. Hart :Motion hearing held. Plaintiffs' agreed motion for leave to file revised declaration 116 is granted. Briefing schedule set on subpoena respondents' joint motion to quash or modify subpoenas 117 ; response due by 11/14/2007; reply due by 11/21/2007; rule by mail.Mailed notice (clw, ) (Entered: 10/31/2007)
129 APPLICATION for Leave to Appear Pro Hac Vice on behalf of Ethel Williams, Jan Wrightsell by Karen B. Bower; Order entered granting leave by Judge William T. Hart. Filing fee $ 50 paid, receipt number 1115298. (td, ) (Entered: 11/05/2007)
130 APPLICATION for Leave to Appear Pro Hac Vice on behalf of Ethel Williams, Jan Wrightsell by Jennifer Mathis; Order entered granting leave by Judge William T. Hart. Filing fee $ 50 paid, receipt number 1115298. (td, ) (Entered: 11/05/2007)
131 APPLICATION for Leave to Appear Pro Hac Vice on behalf of Ethel Williams, Jan Wrightsell by Ira Abraham Burnim; Order entered granting leave by Judge William T. Hart. Filing fee $50 paid, receipt number 1115298. (td, ) (Entered: 11/05/2007)
127 DECLARATION of Jacob Kraemer Tebes, Madelon Visitainer Baranoski, Paul Thomas Amble regarding response in opposition to motion, 111 by Ethel Williams (Russell, Joseph) (Entered: 11/01/2007)

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 24 of 38

11/01/2007 11/13/2007 11/13/2007 11/14/2007 11/14/2007 11/19/2007
11/19/2007 11/21/2007
11/30/2007 11/30/2007 12/03/2007 12/03/2007 12/05/2007
12/06/2007 12/07/2007 12/11/2007
01/02/2008

128 NOTICE by Ethel Williams re declaration 127 (Russell, Joseph) (Entered: 11/01/2007)
132 MOTION by Plaintiff Ethel Williams to amend/correct protective order 32 , order 105 (Attachments: # 1 # 2 # 3)(Russell, Joseph) (Entered: 11/13/2007)
133 NOTICE of Motion by Joseph Michael Russell for presentment of motion to amend/correct, motion for relief, 132 before Honorable William T. Hart on 11/21/2007 at 11:00 AM. (Russell, Joseph) (Entered: 11/13/2007)
134 RESPONSE by Ethel Williams to MOTION by Plaintiffs Ethel Williams, Jan Wrightsell to quash 117 (Attachments: # 1 Exhibit A# 2 Exhibit B)(Russell, Joseph) (Entered: 11/14/2007)
135 NOTICE by Ethel Williams re response to motion 134 (Russell, Joseph) (Entered: 11/14/2007)
136 MINUTE entry before Judge William T. Hart : Motion hearing set for 11/21/2007 is stricken. Plaintiffs' agreed motion to amend the protective order 132 is granted. Enter Second Agreed Order Supplementing Protective Order. Mailed notice (td, ) (Entered: 11/21/2007)
137 SECOND AGREED ORDER SUPPLEMENTING PROTECTIVE Order Signed by Judge William T. Hart on 11/19/2007. (td, ) (Entered: 11/21/2007)
138 REPLY by Respondents Abbott House, LLC, Albany Care, Inc., Belmont Nursing Home, Inc., Bryn Mawr Care, Inc., Central Plaza Residential Home, Inc., Grasmere Place, LLC, Lydia Healthcare, LLC, Monroe Pavilion Health Treatment Center, Inc., Somerset Place, LLC, Wilson Care, Inc. to motion to quash, 117 in support of Joint Motion to quash or modify subpoenas (Neiman, Robert) (Entered: 11/21/2007)
139 MOTION by Plaintiff Ethel Williams for extension of time to complete discovery (Russell, Joseph) (Entered: 11/30/2007)
140 NOTICE of Motion by Joseph Michael Russell for presentment of motion for extension of time to complete discovery 139 before Honorable William T. Hart on 12/5/2007 at 11:00 AM. (Russell, Joseph) (Entered: 11/30/2007)
141 MOTION by Plaintiff Ethel Williams for leave to file (Attachments: # 1 Supplement Attachment A)(Russell, Joseph) (Entered: 12/03/2007)
142 NOTICE of Motion by Joseph Michael Russell for presentment of motion for leave to file 141 before Honorable William T. Hart on 12/12/2007 at 11:00 AM. (Russell, Joseph) (Entered: 12/03/2007)
143 MINUTE entry before Judge William T. Hart :Motion hearings set for 12/5/2007 and 12/12/2007 are stricken. Joint motion for extension of time to conduct discovery 139 is granted. Fact discovery is extended to 3/31/2008. Experts' reports are extended to 6/2/2008. Experts' discovery is extended to 8/4/2008. Plaintiffs' motion for leave to file supplemental authority 141 is advanced and is granted. Mailed notice (clw, ) (Entered: 12/05/2007)
144 INCORRECT PDF LINKED (Russell, Joseph) (Entered: 12/06/2007)
145 Supplemental Authority by Ethel Williams (Russell, Joseph) (Entered: 12/07/2007)
146 RESPONSE by Respondents Abbott House, LLC, Albany Care, Inc., Belmont Nursing Home, Inc., Bryn Mawr Care, Inc., Central Plaza Residential Home, Inc., Grasmere Place, LLC, Lydia Healthcare, LLC, Monroe Pavilion Health Treatment Center, Inc., Somerset Place, LLC, Wilson Care, Inc., Clayton Residential Home, Inc., Thornton Heights Terrace, Ltd., Sharon Health Care Woods, Inc., Greenwood Care, Inc., Bayside Terrace, LLC Regarding Plaintiffs' Motion for Leave to File Supplemental Authority (Neiman, Robert) (Entered: 12/11/2007)
147 MINUTE entry before Judge William T. Hart : Motions of defendants and the non−party IMDs to quash and/or modify subpoenas 102 106 117 are granted in part and denied in part as described herein. Within 14 days, the parties shall meet and adopt a schedule for the requested interviews and document inspections at the

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 25 of 38

01/02/2008 01/16/2008
01/16/2008 01/16/2008 02/04/2008 02/04/2008 02/13/2008
03/10/2008 03/10/2008 03/12/2008
03/25/2008 03/25/2008 04/02/2008 04/21/2008 05/16/2008 05/16/2008

IMDs. A status hearing will be held on April 2, 2008 at 11:00 a.m. (td, ) (Entered: 01/04/2008)
148 OPINION and Order Signed by Judge William T. Hart on 1/2/2008. (td, ) (Entered: 01/04/2008)
149 MOTION by Respondents Somerset Place, LLC, Clayton Residential Home, Inc., Thornton Heights Terrace, Ltd., Sharon Health Care Woods, Inc., Greenwood Care, Inc., Somerset Place, LLC, Bayside Terrace, LLC to quash Subpoenas (Neiman, Robert) (Entered: 01/16/2008)
150 NOTICE of Motion by Robert Kaiser Neiman for presentment of motion to quash 149 before Honorable William T. Hart on 10/10/2007 at 11:00 AM. (Neiman, Robert) (Entered: 01/16/2008)
151 MEMORANDUM in Support of Joint Motion to Quash Subpoenas (Neiman, Robert) (Entered: 01/16/2008)
152 ATTORNEY Appearance for Plaintiffs Ethel Williams, Jan Wrightsell by Angela Dickson Marston (Marston, Angela) (Entered: 02/04/2008)
153 ATTORNEY Appearance for Plaintiffs Ethel Williams, Jan Wrightsell by Elizabeth J. Kappakas (Kappakas, Elizabeth) (Entered: 02/04/2008)
154 MINUTE entry before Judge William T. Hart :Motion to quash subpoenas 149 is the filing of a document that movants had only provided a judge's copy for but not filed electronically. See footnote 2 on page 5 of 1/2/2008 opinion. Motion to quash subpoenas 149 was granted in part and denied in part by 1/2/2008 Order.Mailed notice (clw, ) (Entered: 02/13/2008)
155 MOTION by Defendants Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram for extension of time to complete discovery (Ritchey, Timothy) (Entered: 03/10/2008)
156 NOTICE of Motion by Timothy J. Ritchey for presentment of motion for extension of time to complete discovery 155 before Honorable William T. Hart on 3/12/2008 at 11:00 AM. (Ritchey, Timothy) (Entered: 03/10/2008)
157 MINUTE entry before Judge William T. Hart :Motion hearing held. Defendants' uncontested motion for extension of time to conduct discovery 155 is granted. Fact discovery is extended to 5/30/2008. Experts' reports are extended to 8/1/2008. Expert discovery is extended to 10/3/2008. Status report is to be filed by 6/16/2008. Status hearing reset to 6/18/2008 at 11:00 AM.Mailed notice (clw, ) (Entered: 03/12/2008)
158 MOTION by Plaintiff Ethel Williams to compel (Attachments: # 1 Exhibit A − Letter, # 2 Exhibit B − Letter, # 3 Exhibit C − Subpoena, # 4 Exhibit D − Letter)(Marston, Angela) (Entered: 03/25/2008)
159 NOTICE of Motion by Angela Dickson Marston for presentment of motion to compel 158 before Honorable William T. Hart on 4/2/2008 at 11:00 AM. (Marston, Angela) (Entered: 03/25/2008)
160 MINUTE entry before Judge Honorable William T. Hart:Motion hearing held on 4/2/2008. Plaintiffs' motion to compel 158 is continued to 4/23/2008 at 11:00 AM.Mailed notice (clw, ) (Entered: 04/02/2008)
161 MINUTE entry before Judge Honorable William T. Hart:Motion hearing set for 4/23/2008 is stricken. Plaintiffs' motion to compel 158 is withdrawn.Mailed notice (clw, ) (Entered: 04/21/2008)
162 MOTION by counsel for Plaintiffs Ethel Williams, Jan Wrightsell to withdraw as attorney for Plaintiffs (Lapertosa, Max) (Entered: 05/16/2008)
163 NOTICE of Motion by Max P Lapertosa for presentment of motion to withdraw as attorney 162 before Honorable William T. Hart on 5/21/2008 at 11:00 AM. (Lapertosa, Max) (Entered: 05/16/2008)

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 26 of 38

05/19/2008
05/30/2008 05/30/2008 06/09/2008
06/09/2008 06/16/2008 06/16/2008 06/16/2008 06/16/2008 06/18/2008
07/02/2008
07/07/2008 07/07/2008 07/09/2008 07/16/2008 07/25/2008 07/28/2008 07/28/2008

164 MINUTE entry before the Honorable William T. Hart: Motion hearing set for 5/21/2008 is stricken. Motion of Max P. Lapertosa for leave to withdraw as one ofthe attorneys for plaintiffs 162 is granted. Mailed notice (gmr, ) (Entered: 05/20/2008)
165 MOTION by Defendants Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram for extension of time to complete discovery (Ritchey, Timothy) (Entered: 05/30/2008)
166 NOTICE of Motion by Timothy J. Ritchey for presentment of motion for extension of time to complete discovery 165 before Honorable William T. Hart on 6/18/2008 at 11:00 AM. (Ritchey, Timothy) (Entered: 05/30/2008)
167 RESPONSE by Ethel Williamsin Opposition to MOTION by Defendants Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram for extension of time to complete discovery 165 (Attachments: # 1 Exhibit A)(Marston, Angela) (Entered: 06/09/2008)
168 NOTICE by all plaintiffs re response in opposition to motion 167 (Marston, Angela) (Entered: 06/09/2008)
169 STATUS Report by Ethel Williams (Kappakas, Elizabeth) (Entered: 06/16/2008)
170 STATUS Report and Reply to Plaintiffs Response to Motion to Extend Discovery by Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram (Ritchey, Timothy) (Entered: 06/16/2008)
171 NOTICE by all defendants re status report 170 (Ritchey, Timothy) (Entered: 06/16/2008)
172 NOTICE by Ethel Williams re status report 169 (Kappakas, Elizabeth) (Entered: 06/16/2008)
173 MINUTE entry before the Honorable William T. Hart:Status hearing held. Defendants' motion for extension of time to conduct discovery 165 is entered and continued. Status hearing set for 7/2/2008 at 11:00 AM. Mailed notice (clw, ) (Entered: 06/18/2008)
174 MINUTE entry before the Honorable William T. Hart:Status hearing held on 7/2/2008. Defendants shall file a statement regarding expert discovery by 8/25/2008. Status hearing set for 8/27/2008 at 11:00 AM. Mailed notice (clw, ) (Entered: 07/02/2008)
175 MOTION by Plaintiff Ethel Williams for discovery Motion to Compel (Attachments: # 1 Exhibit No. 1, # 2 Exhibit No. 2)(Russell, Joseph) (Entered: 07/07/2008)
176 NOTICE of Motion by Joseph Michael Russell for presentment of motion for discovery 175 before Honorable William T. Hart on 7/9/2008 at 11:00 AM. (Russell, Joseph) (Entered: 07/07/2008)
177 MINUTE entry before the Honorable William T. Hart:Motion hearing held on 7/9/2008. Plaintiffs' motion to compel discovery 175 is continued to 7/16/2008 at 11:00 AM. Mailed notice (clw, ) (Entered: 07/09/2008)
178 MINUTE entry before the Honorable William T. Hart:Motion hearing held. Plaintiffs' motion to compel discovery 175 is granted; defendants are to comply by 7/30/2008.Mailed notice (clw, ) (Entered: 07/16/2008)
179 STIPULATION AND PROTECTIVE ORDER REGARDING EXPERT DISCOVERY (Russell, Joseph) (Entered: 07/25/2008)
180 MOTION by Plaintiff Ethel Williams for extension of time to file expert report (Kappakas, Elizabeth) (Entered: 07/28/2008)
181 NOTICE of Motion by Elizabeth J. Kappakas for presentment of extension of time 180 before Honorable William T. Hart on 7/30/2008 at 11:00 AM. (Kappakas, Elizabeth) (Entered: 07/28/2008)

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 27 of 38

07/30/2008 08/01/2008 08/01/2008 08/01/2008 08/11/2008 08/15/2008 08/25/2008
08/25/2008 09/08/2008
09/08/2008 09/10/2008
09/22/2008

182 MINUTE entry before the Honorable William T. Hart:Motion hearing held. Plaintiffs' motion for extension of time to 9/8/2008 to submit expert report on fundamental alteration 180 is granted. Status hearing reset to 9/10/2008 at 11:00 AM. Mailed notice (clw, ) (Entered: 07/30/2008)
183 MOTION by Defendant Rod Blagojevich for extension of time to complete discovery in light of preliminary report of defendants' expert witness (Attachments: # 1 Exhibit Preliminary Report of Expert R. Gregory Kipper)(Koenig, Raymond) (Entered: 08/01/2008)
184 NOTICE of Motion by Raymond Joseph Koenig, III for presentment of motion for extension of time to complete discovery 183 before Honorable William T. Hart on 8/6/2008 at 11:00 AM. (Koenig, Raymond) (Entered: 08/01/2008)
185 MINUTE entry before the Honorable William T. Hart: The presentation of defendant's motion for extension of time to conduct limited discovery 183 is reset from 8/6/2008 to 8/13/2008 at 11:00 a.m. Mailed notice (hp, ) (Entered: 08/04/2008)
186 MINUTE entry before the Honorable William T. Hart:Defendants' joint motion for extension of time to conduct limited discovery 183 is reset from 8/13/2008 to 9/10/2008 at 11:00 AM. Mailed notice (clw, ) (Entered: 08/11/2008)
187 ATTORNEY Appearance for Plaintiffs Ethel Williams, Jan Wrightsell by Edward B. Mullen, III (Mullen, Edward) (Entered: 08/15/2008)
188 MEMORANDUM by Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram in support of motion for extension of time to complete discovery 165 , motion for extension of time to complete discovery 183 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Ritchey, Timothy) (Entered: 08/25/2008)
189 NOTICE by all defendants re memorandum in support of motion, 188 (Ritchey, Timothy) (Entered: 08/25/2008)
190 RESPONSE by Ethel Williamsin Opposition to MOTION by Defendants Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram for extension of time to complete discovery 165 , MOTION by Defendant Rod Blagojevich for extension of time to complete discovery in light of preliminary report of defendants' expert witness 183 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Marston, Angela) (Entered: 09/08/2008)
191 NOTICE by Ethel Williams re response in opposition to motion, 190 (Marston, Angela) (Entered: 09/08/2008)
192 MINUTE entry before the Honorable William T. Hart:Status hearing held. Defendants' motion for extension of time to complete discovery 165 is denied without prejudice as moot. Defendants' motion for extension of time to complete discovery 183 is granted as stated in open court to 12/10/2008. Status hearing set for 12/17/2008 at 11:00 AM. Mailed notice (clw, ) (Entered: 09/11/2008)
193 TRANSCRIPT OF PROCEEDINGS held on September 10, 2008 before the Honorable William T. Hart. Court Reporter Contact Information: Carolyn Cox, 312−435−5639, carolyn_cox@ilnd.uscourts.gov.

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

11/07/2008

Redaction Request due 10/14/2008. Redacted Transcript Deadline set for 10/23/2008. Release of Transcript Restriction set for 12/22/2008. (Cox, Carolyn) (Entered: 09/22/2008)
194 MOTION by Defendants Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram for extension of time to complete discovery and file

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 28 of 38

11/07/2008 11/10/2008 11/10/2008 11/10/2008 11/12/2008 11/26/2008
11/26/2008 12/01/2008 12/01/2008 12/02/2008
12/02/2008

expert reports (Ritchey, Timothy) (Entered: 11/07/2008)
195 NOTICE of Motion by Timothy J. Ritchey for presentment of motion for extension of time to complete discovery 194 before Honorable William T. Hart on 11/12/2008 at 11:00 AM. (Ritchey, Timothy) (Entered: 11/07/2008)
196 MOTION by Plaintiff Ethel Williams for protective order (Attachments: # 1 Text of Proposed Order)(Marston, Angela) (Entered: 11/10/2008)
197 MEMORANDUM by Ethel Williams in support of motion for protective order 196 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Marston, Angela) (Entered: 11/10/2008)
198 NOTICE of Motion by Angela Dickson Marston for presentment of motion for protective order 196 before Honorable William T. Hart on 11/12/2008 at 11:00 AM. (Marston, Angela) (Entered: 11/10/2008)
199 MINUTE entry before the Honorable William T. Hart:Motion hearing held. Defendants' motion for extension of time to complete discovery 194 is granted. Discovery is extended to 2/27/2009. Plaintiffs' motion for protective order 196 is granted in part and denied in part as stated in open court. Status hearing reset to 1/21/2009 at 11:00 AM. Mailed notice (clw, ) (Entered: 11/12/2008)
200 MOTION by Defendants Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram for reconsideration regarding order on motion for extension of time to complete discovery, order on motion for protective order, terminate hearings, motion hearing, set case scheduling order,,,,, 199 (Attachments: # 1 Exhibit Memo in Support, # 2 Exhibit Exhibit A to Memo in Support of Motion, # 3 Exhibit Exhibit B to Memo in Support of Motion, # 4 Exhibit Exhibit C to Memo in Support of Motion)(Ritchey, Timothy) (Entered: 11/26/2008)
201 NOTICE of Motion by Timothy J. Ritchey for presentment of motion for reconsideration, motion for relief,,,,,,,,,,,,,,,, 200 before Honorable William T. Hart on 12/3/2008 at 11:00 AM. (Ritchey, Timothy) (Entered: 11/26/2008)
202 MOTION by Defendants Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram for discovery ruling (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Ritchey, Timothy) (Entered: 12/01/2008)
203 NOTICE of Motion by Timothy J. Ritchey for presentment of motion for discovery 202 before Honorable William T. Hart on 12/3/2008 at 11:00 AM. (Ritchey, Timothy) (Entered: 12/01/2008)
204 TRANSCRIPT OF PROCEEDINGS held on November 12, 2008 before the Honorable William T. Hart. Court Reporter Contact Information: Laura LaCien, 312−408−5032, laura_lacien@ilnd.uscourts.gov.
IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.
Redaction Request due 12/23/2008. Redacted Transcript Deadline set for 1/2/2009. Release of Transcript Restriction set for 3/2/2009. (Lacien, Laura) (Entered: 12/02/2008)
205 RESPONSE by Ethel Williams to MOTION by Defendants Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram for reconsideration regarding order on motion for extension of time to complete discovery, order on motion for protective order, terminate hearings, motion 200 , MOTION by Defendants Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram for discovery ruling 202 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Kappakas, Elizabeth) (Entered: 12/02/2008)

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 29 of 38

12/02/2008 12/03/2008
01/05/2009 01/05/2009 01/06/2009
01/06/2009 01/07/2009 02/12/2009 03/19/2009

206 NOTICE by Ethel Williams re response to motion,, 205 (Kappakas, Elizabeth) (Entered: 12/02/2008)
207 MINUTE entry before the Honorable William T. Hart:Motion hearing held. Defendants' motion for reconsideration 200 is denied. Defendants' motion for discovery 202 is granted in part and denied in part. Discovery extended to 4/15/2009. Status hearing reset to 4/15/2009 at 11:00 AM. Mailed notice (clw, ) (Entered: 12/03/2008)
208 MOTION by Plaintiff Ethel Williams for protective order (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Kappakas, Elizabeth) (Entered: 01/05/2009)
209 NOTICE of Motion by Elizabeth J. Kappakas for presentment of motion for protective order 208 before Honorable William T. Hart on 1/7/2009 at 11:00 AM. (Kappakas, Elizabeth) (Entered: 01/05/2009)
210 RESPONSE by Rod Blagojevich, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maramin Opposition to MOTION by Plaintiff Ethel Williams for protective order 208 (Attachments: # 1 Exhibit A)(Ritchey, Timothy) (Entered: 01/06/2009)
211 NOTICE by all defendants re response in opposition to motion 210 (Ritchey, Timothy) (Entered: 01/06/2009)
212 MINUTE entry before the Honorable William T. Hart:Motion hearing held. Plaintiffs' motion for protective order 208 is denied. Mailed notice (clw, ) (Entered: 01/07/2009)
213 MINUTE entry before the Honorable William T. Hart: Status hearing reset to 4/16/2009 at 11:00 AM. Mailed notice (clw, ) (Entered: 02/12/2009)
214 TRANSCRIPT OF PROCEEDINGS held on December 3, 2008 before the Honorable William T. Hart. Court Reporter Contact Information: Joene Hanhardt, Official Court Reporter, 219 S. Dearborn Street, Suite 1744−A, Chicago, Illinois 60604 (312) 435−6874.

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

04/14/2009 04/16/2009
06/15/2009 06/15/2009 06/18/2009

Redaction Request due 4/9/2009. Redacted Transcript Deadline set for 4/20/2009. Release of Transcript Restriction set for 6/17/2009. (Hanhardt, Joene) Modified on 3/20/2009 (gmr, ). (Entered: 03/19/2009)
215 NOTICE by Angela Dickson Marston of Change of Address (Marston, Angela) (Entered: 04/14/2009)
216 MINUTE entry before the Honorable William T. Hart: Status hearing held and continued to 7/23/2009 at 11:00 a.m.. Discovery is extended to 7/16/2009. It is hereby ordered that Patrick J. Quinn, in his official capacity as Governor of the State of Illinois, is substituted as party defendant for Rod Blagojevich. The Clerk is directed to reflect said substitution on the docket sheet including case title. Mailed notice (gmr, ) (Entered: 04/20/2009)
217 MOTION by counsel for Defendant Patrick J Quinn to withdraw as attorney (Ritchey, Timothy) (Entered: 06/15/2009)
218 NOTICE of Motion by Timothy J. Ritchey for presentment of motion to withdraw as attorney 217 before Honorable William T. Hart on 6/18/2009 at 11:00 AM. (Ritchey, Timothy) (Entered: 06/15/2009)
219 MINUTE entry before the Honorable William T. Hart: Motion of Kerry R. Peck, Timothy J. Ritchey and Raymond J. Koenig for leave to withdraw as counsel for defendant Quinn 217 is granted. Mailed notice (gmr, ) (Entered: 06/19/2009)

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 30 of 38

06/23/2009 06/23/2009 06/25/2009 09/03/2009 09/24/2009 09/24/2009 09/28/2009
09/29/2009 10/01/2009 10/27/2009 11/17/2009 11/24/2009

220 MOTION by Defendants Patrick J Quinn, Carol L Adams, Lorrie Stone, Eric E Whitaker, Barry S Maram for extension of time to complete discovery (Stratton, Brent) (Entered: 06/23/2009)
221 NOTICE of Motion by Brent Douglas Stratton for presentment of motion for extension of time to complete discovery 220 before Honorable William T. Hart on 6/25/2009 at 11:00 AM. (Stratton, Brent) (Entered: 06/23/2009)
222 MINUTE entry before the Honorable William T. Hart:Motion hearing held. Defendants' motion for extension of time to complete discovery 220 is granted in part and denied in part. Discovery is extended to 8/31/2009. No further extensions will be granted. Status hearing set for 9/3/2009 at 11:00 AM. Mailed notice (clw, ) (Entered: 06/26/2009)
223 MINUTE entry before the Honorable William T. Hart:Status hearing held on 9/3/2009. Plaintiffs are to distribute proposed decree by 9/17/2009. Proposed Findings of Fact and Conclusions of Law is due by 10/19/2009; objections due by 11/16/2009. Status hearing set for 9/24/2009 at 11:00 AM. Mailed notice (clw, ) (Entered: 09/03/2009)
224 MINUTE entry before the Honorable William T. Hart:Status hearing held on 9/24/2009. Date for submission of Proposed Findings of Fact and Conclusions of Law is stricken. Status hearing set for 11/19/2009 at 11:00 AM. Mailed notice (clw, ) (Entered: 09/25/2009)
225 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable Morton Denlow for the purpose of holding proceedings related to: settlement conference.(clw, )Mailed notice. (Entered: 09/25/2009)
226 MINUTE entry before the Honorable Morton Denlow:This case has been referred to Judge Denlow to conduct a settlement conference. The parties are directed to review and to comply with Judge Denlow's Standing Order Setting Settlement Conference. Copies are available in chambers or through Judge Denlow's web page at www.ilnd.uscourts.gov. Judge Denlow requires full compliance with this standing order before conducting a settlement conference. Failure to comply with the provisions of the Court's Standing Order Setting Settlement Conference may result in the unilateral cancellation of the settlement conference by the Court. The parties shall jointly contact the courtroom deputy, Donna Kuempel at 312/435−5857, with mutually agreeable dates or appear at 10:00 a.m. on 10/27/09 to set a settlement conference date. Because of the volume of settlement conferences conducted by Judge Denlow, once a settlement conference date has been agreed upon, no continuance will be granted without a motion showing extreme hardship. Parties are required to deliver to chambers or fax to chambers (312/554−8547) copies of their most recent settlement demands and offers at least three (3) business days prior to the settlement conference.Mailed notice (dmk, ) (Entered: 09/28/2009)
227 ATTORNEY Appearance for Plaintiffs Ethel Williams, Jan Wrightsell by Kendra Nicole Thompson (Thompson, Kendra) (Entered: 09/29/2009)
228 MINUTE entry before the Honorable Morton Denlow:Settlement Conference set for 10/27/2009 at 10:30 AM. Status hearing set for 10/27/09 at 10:00 am. is stricken.Mailed notice (dmk, ) (Entered: 10/01/2009)
229 MINUTE entry before the Honorable Morton Denlow:Settlement conference held on 10/27/2009. Progress made. Plaintiff to submit a proposed consent decree on or by 11/3/09. Defendant to provide responses to Plaintiff with a copy to the Court on or by 11/17/09. Status hearing set for 11/24/2009 at 10:00 AM.Mailed notice (dmk, ) (Entered: 10/27/2009)
230 MINUTE entry before the Honorable William T. Hart: Status hearing reset to 12/3/2009 at 11:00 AM. )Mailed notice (clw, ) (Entered: 11/17/2009)
231 MINUTE entry before the Honorable Morton Denlow:Magistrate Judge Status hearing held on 11/24/2009. Status hearing set for 1/21/2010 at 10:00 AM.Mailed notice (dmk, ) (Entered: 11/24/2009)

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 31 of 38

12/01/2009 01/21/2010 01/26/2010 02/04/2010
02/18/2010 02/19/2010 03/15/2010
03/15/2010 03/15/2010 03/16/2010 03/16/2010 03/17/2010 03/17/2010
03/22/2010 03/22/2010

232 MINUTE entry before the Honorable William T. Hart: Status hearing reset to 1/26/2010 at 11:00 AM. Mailed notice (clw, ) (Entered: 12/01/2009)
233 MINUTE entry before Honorable Morton Denlow:Magistrate Judge Status hearing held on 1/21/2010. Status hearing set for 2/4/2010 at 10:00 AM.Mailed notice (dmk, ) (Entered: 01/21/2010)
234 MINUTE entry before Honorable William T. Hart:Status hearing held on 1/26/2010. Status report is to be filed by 2/18/2010.Mailed notice (clw, ) (Entered: 01/26/2010)
235 MINUTE entry before Honorable Morton Denlow: The parties having represented that they have reached an agreement in principle and they will present documents to Judge Hart, the referral of this action having been resolved, the case is returned to the assigned judge. Status hearing set for 2/4/2010.Case no longer referred to Honorable Morton Denlow.Mailed notice (dmk, ) (Entered: 02/04/2010)
236 Joint Status Report by Ethel Williams, Jan Wrightsell (Wolf, Benjamin) (Entered: 02/18/2010)
237 MINUTE entry before Honorable William T. Hart:By 3/15/2010, parties shall file motion for preliminary approval of settlement including a proposed notice to the class.Mailed notice (clw, ) (Entered: 02/19/2010)
238 MOTION by Defendants Barry S Maram, Patrick J Quinn, Lorrie Stone, Plaintiffs Ethel Williams, Jan Wrightsell to approve consent judgment (Attachments: # 1 Exhibit A (Proposed Consent Decree), # 2 Exhibit B (Notice Plan), # 3 Exhibit B−1 (Proposed Publication Notice), # 4 Exhibit B−2 (Proposed Mailed Notice), # 5 Exhibit C (Proposed Order))(Marston, Angela) (Entered: 03/15/2010)
239 MEMORANDUM by Barry S Maram, Patrick J Quinn, Lorrie Stone, Ethel Williams, Jan Wrightsell in support of motion to approve consent judgment, 238 (Marston, Angela) (Entered: 03/15/2010)
240 NOTICE of Motion by Angela Dickson Marston for presentment of motion to approve consent judgment, 238 before Honorable William T. Hart on 3/18/2010 at 11:00 AM. (Marston, Angela) (Entered: 03/15/2010)
241 MOTION by Plaintiff Ethel Williams to substitute party (Marston, Angela) (Entered: 03/16/2010)
242 NOTICE of Motion by Angela Dickson Marston for presentment of motion to substitute party 241 before Honorable William T. Hart on 3/18/2010 at 11:00 AM. (Marston, Angela) (Entered: 03/16/2010)
243 MINUTE entry before Honorable William T. Hart:Motion hearing set for 3/18/2010 is stricken. Joint motion for preliminary approval of consent decree and approval of notice plan 238 is taken under advisementMailed notice (clw, ) (Entered: 03/17/2010)
244 MINUTE entry before Honorable William T. Hart: Plaintiffs' agreed motion for substitution of named plaintiff and for leave to file an amended complaint 241 is granted. It is hereby ordered that Gilbert Purham is substituted for Donell Hall as one of the named plaintiffs in this case. The Clerk is directed to reflect said substitution on the docket sheet. Mailed notice (gmr, ) (Entered: 03/18/2010)
245 MINUTE entry before Honorable William T. Hart:The parties are directed to submit copies of all expert reports that have been produced in this case to Judge Hart's Chambers, Room 2246 by 4/1/2010. Status hearing set for 4/15/2010 at 11:30 AM.Mailed notice (clw, ) (Entered: 03/22/2010)
246 MOTION by Respondents Abbott House, LLC, Albany Care, Inc., Bayside Terrace, LLC, Belmont Nursing Home, Inc., Bryn Mawr Care, Inc., Central Plaza Residential Home, Inc., Clayton Residential Home, Inc., Greenwood Care, Inc., Sharon Health Care Woods, Inc., Thornton Heights Terrace, Ltd., Wilson Care, Inc. to set a briefing schedule on the parties' joint motion for preliminary approval of consent decree (Neiman, Robert) (Entered: 03/22/2010)

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 32 of 38

03/22/2010 03/24/2010 03/26/2010 03/26/2010
03/31/2010 04/15/2010 04/15/2010
04/29/2010 04/29/2010 04/29/2010 04/29/2010 05/13/2010 05/13/2010 05/13/2010 05/13/2010 05/13/2010 05/13/2010 05/13/2010

247 NOTICE of Motion by Robert K Neiman for presentment of motion by filer to set a briefing schedule, 246 before Honorable William T. Hart on 3/25/2010 at 11:00 AM. (Neiman, Robert) (Entered: 03/22/2010)
248 MINUTE entry before Honorable William T. Hart:Motion hearing set for 3/25/2010 is stricken. Motion to set a briefing schedule 246 is denied without prejudice.Mailed notice (clw, ) (Entered: 03/24/2010)
249 ATTORNEY Appearance for Plaintiffs Danny McLean, David Twomey by Tonya Gentry Newman (Newman, Tonya) (Entered: 03/26/2010)
250 RESPONSE by Plaintiffs Danny McLean, David Twomey to motion to approve consent judgment, 238 Class Members' Combined Response to the Parties' Joint Motion for Preliminary Approval of Consent Decree and Request for Hearing (Newman, Tonya) (Entered: 03/26/2010)
251 Second AMENDED complaint by Ethel Williams against Carol L Adams, Barry S Maram, Patrick J Quinn, Lorrie Stone, Eric E Whitaker and terminating Donell Hall (Marston, Angela) (Entered: 03/31/2010)
252 ATTORNEY Appearance for Plaintiffs Danny McLean, David Twomey, Michelle Alper, Melissa Lee Meyers by William Choslovsky (Choslovsky, William) (Entered: 04/15/2010)
253 MINUTE entry before Honorable William T. Hart:Status hearing held on 4/15/2010. Reply to motion for preliminary approval of consent decree 238 is due by 4/29/2010; sur−reply due by 5/13/2010. Status hearing set for 5/27/2010 at 11:00 AM.Mailed notice (clw, ) (Entered: 04/16/2010)
254 RESPONSE by Defendants Carol L Adams, Barry S Maram, Pat Quinn, Lorrie Stone, Eric E Whitaker to Response, 250 (Ioppolo, Thomas) (Entered: 04/29/2010)
255 NOTICE by Carol L Adams, Barry S Maram, Pat Quinn, Lorrie Stone, Eric E Whitaker re Response 254 (Ioppolo, Thomas) (Entered: 04/29/2010)
256 REPLY by Plaintiff Ethel Williams to motion to approve consent judgment, 238 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Marston, Angela) (Entered: 04/29/2010)
257 NOTICE by Ethel Williams re reply 256 (Marston, Angela) (Entered: 04/29/2010)
258 ATTORNEY Appearance for Plaintiffs Darnell Jones, Theda Goldstein, Jacqueline Lewis, Donna Blaha, Leah Wilson by William Choslovsky (Choslovsky, William) (Entered: 05/13/2010)
259 ATTORNEY Appearance for Plaintiffs Lois Yesinowski, Jason Sherrell, Tom White, Denise Battle, Zena Swets by William Choslovsky (Choslovsky, William) (Entered: 05/13/2010)
260 ATTORNEY Appearance for Plaintiffs Lisa Swan, John Arado, Irene Hafner by William Choslovsky (Choslovsky, William) (Entered: 05/13/2010)
261 ATTORNEY Appearance for Plaintiffs Donna Blaha, Theda Goldstein, Darnell Jones, Jacqueline Lewis, Leah Wilson by Tonya Gentry Newman (Newman, Tonya) (Entered: 05/13/2010)
262 ATTORNEY Appearance for Plaintiffs Denise Battle, Jason Sherrell, Zena Swets, Tom White, Lois Yesinowski by Tonya Gentry Newman (Newman, Tonya) (Entered: 05/13/2010)
263 ATTORNEY Appearance for Plaintiffs Michelle Alper, John Arado, Irene Hafner, Melissa Lee Meyers, Lisa Swan by Tonya Gentry Newman (Newman, Tonya) (Entered: 05/13/2010)
264 REPLY by Plaintiffs Michelle Alper, John Arado, Denise Battle, Donna Blaha, Theda Goldstein, Irene Hafner, Darnell Jones, Jacqueline Lewis, Danny McLean, Melissa Lee Meyers, Jason Sherrell, Lisa Swan, Zena Swets, David Twomey, Tom White, Leah Wilson, Lois Yesinowski to motion to approve consent judgment, 238 and Request for Hearing (Attachments: # 1 Errata 1)(Newman, Tonya) (Entered: 05/13/2010)

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 33 of 38

05/24/2010 05/27/2010
05/27/2010 07/07/2010 07/07/2010 07/07/2010
07/07/2010 07/08/2010 07/15/2010
07/15/2010 07/20/2010
07/20/2010

265 STATEMENT by United States of America (Attachments: # 1 Exhibit A)(Johnson, Patrick) (Entered: 05/24/2010)
266 MINUTE entry before Honorable William T. Hart: Status hearing held. Joint motion for preliminary approval of consent decree and approval of notice plan 238 is granted as modified. Fairness Hearing set for 9/7/2010 at 10:00 a.m. All class members, guardians or others who wish to participate in the fairness hearing or comment on or object to the proposed decree may file a written submission by 8/10/2010; responses due by 8/24/2010. (For further detail see separate order(s).) Mailed notice (gmr, ) (Entered: 06/02/2010)
267 ORDER Signed by the Honorable William T. Hart on 5/27/2010. (gmr, ) (Entered: 06/02/2010)
268 ATTORNEY Appearance for Plaintiffs Michelle Alper, John Arado, Denise Battle, Donna Blaha, Theda Goldstein, Irene Hafner, Darnell Jones, Jacqueline Lewis, Danny McLean, Melissa Lee Meyers, Jason Sherrell, Lisa Swan, Zena Swets, David Twomey, Tom White, Leah Wilson, Lois Yesinowski by Steven F. Pflaum (Pflaum, Steven) (Entered: 07/07/2010)
269 other document by Edward Brandon, Gilbert Parham, Ethel Williams, Jan Wrightsell (Letter from Plaintiffs' counsel Benjamin Wolf to Judge William T. Hart (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Wolf, Benjamin) (Entered: 07/07/2010)
270 MOTION by Plaintiffs Michelle Alper, John Arado, Denise Battle, Donna Blaha, Theda Goldstein, Irene Hafner, Darnell Jones, Jacqueline Lewis, Danny McLean, Melissa Lee Meyers, Jason Sherrell, Lisa Swan, Zena Swets, David Twomey, Tom White, Leah Wilson, Lois Yesinowski Motion by Objecting Class Members Regarding Communications with Other Class Members (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Choslovsky, William) (Entered: 07/07/2010)
271 NOTICE of Motion by William Choslovsky for presentment of motion for miscellaneous relief, 270 before Honorable William T. Hart on 7/8/2010 at 11:00 AM. (Choslovsky, William) (Entered: 07/07/2010)
272 MINUTE entry before Honorable William T. Hart:Motion hearing held on 7/8/2010. Briefing schedule set on motion by objecting class members regarding communications with other class members 270 : response due by 7/15/2010; reply due by 7/20/2010; rule by mail.Mailed notice (clw, ) (Entered: 07/09/2010)
273 RESPONSE by Ethel Williams, Jan Wrightsellin Opposition to MOTION by Plaintiffs Michelle Alper, John Arado, Denise Battle, Donna Blaha, Theda Goldstein, Irene Hafner, Darnell Jones, Jacqueline Lewis, Danny McLean, Melissa Lee Meyers, Jason Sherrell, Lisa Swan, Zena Swets, David Twomey, Tom White, Leah Wilson, L 270 (Attachments: # 1 Plaintiffs' Response, # 2 Exhibit to Plaintiffs' Response)(Turner, Lori) (Entered: 07/15/2010)
274 NOTICE of Motion by Lori Nicole Turner for presentment of motion for miscellaneous relief, 270 before Honorable William T. Hart on 7/29/2010 at 11:00 AM. (Turner, Lori) (Entered: 07/15/2010)
275 REPLY by Respondents Abbott House, LLC, Albany Care, Inc., Bayside Terrace, LLC, Belmont Nursing Home, Inc., Bryn Mawr Care, Inc., Central Plaza Residential Home, Inc., Clayton Residential Home, Inc., Greenwood Care, Inc., Sharon Health Care Woods, Inc., Thornton Heights Terrace, Ltd., Wilson Care, Inc. Reply Brief of Certain IMDs in Support of Motion by Objecting Class Members Regarding Communications With Other Class Members (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Neiman, Robert) (Entered: 07/20/2010)
276 REPLY by Plaintiffs Michelle Alper, John Arado, Denise Battle, Donna Blaha, Theda Goldstein, Irene Hafner, Darnell Jones, Jacqueline Lewis, Danny McLean, Melissa Lee Meyers, Jason Sherrell, Lisa Swan, Zena Swets, David Twomey, Tom White, Leah Wilson, Lois Yesinowski to motion for miscellaneous relief, 270 in Support of Motion by Objecting Class Members Regarding Communications with Other Class Members (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Certificate of Service)(Choslovsky, William) (Entered: 07/20/2010)

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 34 of 38

07/21/2010 07/23/2010 07/23/2010 07/23/2010 07/23/2010
07/23/2010 07/23/2010 07/27/2010
07/27/2010 08/03/2010
08/10/2010 08/10/2010

277 MINUTE entry before Honorable William T. Hart:Plaintiffs' motion for leave to file a 20−page response to the Motion by Objecting Class Members regarding communications with other class members is granted. No court appearance required on 7/29/2010.Mailed notice (slb, ) (Entered: 07/21/2010)
278 MOTION by Plaintiffs Ethel Williams, Jan Wrightsell to strike reply,, 275 brief of certain IMDs in support of motion by objecting class members regarding communications with other class members (Turner, Lori) (Entered: 07/23/2010)
279 NOTICE of Motion by Lori Nicole Turner for presentment of motion to strike, motion for relief 278 before Honorable William T. Hart on 7/29/2010 at 11:00 AM. (Turner, Lori) (Entered: 07/23/2010)
280 MINUTE entry before Honorable William T. Hart: Motion hearing reset to 8/5/2010 at 11:00a.m. on plaintiffs' motion to strike reply brief of certain IMDs in support of motion by Objecting Class Members regarding communications with other class members 278 . No court appearance required on 7/29/2010.Mailed notice (slb, ) (Entered: 07/23/2010)
281 MOTION by Respondents Abbott House, LLC, Albany Care, Inc., Bayside Terrace, LLC, Belmont Nursing Home, Inc., Bryn Mawr Care, Inc., Central Plaza Residential Home, Inc., Clayton Residential Home, Inc., Greenwood Care, Inc., Sharon Health Care Woods, Inc., Thornton Heights Terrace, Ltd., Wilson Care, Inc. for leave to file Certain IMDs' Motion for Leave to File Appearance and Reply Brief Instanter (Attachments: # 1 Appearance, # 2 Reply Brief in Support of Motion by Objecting Class Members Regarding Communications With Other Class Members)(Neiman, Robert) (Entered: 07/23/2010)
282 NOTICE of Motion by Robert K Neiman for presentment of motion for leave to file,, 281 before Honorable William T. Hart on 7/29/2010 at 11:00 AM. (Neiman, Robert) (Entered: 07/23/2010)
283 MINUTE entry before Honorable William T. Hart: Motion hearing reset to 8/5/2010 at 11:00a.m. on third parties' motion 281 for leave to file their appearance instanter and for leave to file their reply brief in support of motion by Objecting Class Members regarding communications with other class members. No court appearance required on 7/29/2010.Mailed notice (slb, ) (Entered: 07/23/2010)
284 MINUTE entry before Honorable William T. Hart: It is found that misleading statements have been distributed to IMD residents and their families. Objecting Class Plaintiffs' motion regarding communications 270 is denied. William Choslovsky and other attorneys representing Objecting Class Plaintiffs shall not initiate contact with additional class members. Class Plaintiffs' motion to strike reply brief 278 is denied. Certain IMDs' motion to file reply and appearance of attorney 281 is granted. August 5, 2010 motion hearing date is stricken. (For further detail see attached Opinion and Order.) Judicial staff notice (gmr, ) (Entered: 07/29/2010)
285 OPINION and Order Signed by the Honorable William T. Hart on 7/27/2010. (gmr, ) (Entered: 07/29/2010)
286 MINUTE entry before Honorable William T. Hart: In accordance with Fed. R. Civ. P. 25(d), the following officials in their official capacity are substituted into this case: (a) Michelle R.B. Saddler for Carol L. Adams; (b) Lorrie Rickman−Jones for Lorrie Stone; and (c) Damon T. Arnold for Eric E. Whitaker. The Clerk of the Court is directed to amend the docket accordingly. Mailed notice. (jj, ) (Entered: 08/04/2010)
287 ATTORNEY Appearance for Respondents Abbott House, LLC, Albany Care, Inc., Bayside Terrace, LLC, Belmont Nursing Home, Inc., Bryn Mawr Care, Inc., Central Plaza Residential Home, Inc., Clayton Residential Home, Inc., Greenwood Care, Inc., Sharon Health Care Woods, Inc., Thornton Heights Terrace, Ltd., Wilson Care, Inc. by Robert K Neiman (Neiman, Robert) (Entered: 08/10/2010)
288 comments by the United States in support of final apporval of the proposed joint sonsent decree STATEMENT by United States of America (Johnson, Patrick) (Entered: 08/10/2010)

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 35 of 38

08/10/2010 08/10/2010 08/10/2010 08/10/2010 08/10/2010 08/10/2010 08/10/2010 08/10/2010
08/10/2010
08/10/2010 08/10/2010 08/11/2010 08/16/2010

289 ATTORNEY Appearance for Plaintiffs Christopher Allen, Brian Bonner, Greg Brechon, Henry Thomas Coleman, Ilyse Friedman by William Choslovsky (Choslovsky, William) (Entered: 08/10/2010)
290 ATTORNEY Appearance for Plaintiffs Father Julian Von Duerbeck, Barbara Levin, Alex Jenkins, Peter Wilkins, Paul Magit, Harry Schneider, Ursula Levy, Tom Withey, Patricia Martin by William Choslovsky (Choslovsky, William) (Entered: 08/10/2010)
291 ATTORNEY Appearance for Plaintiffs Christopher Allen, Brian Bonner, Greg Brechon, Henry Thomas Coleman, Ilyse Friedman by Steven F. Pflaum (Pflaum, Steven) (Entered: 08/10/2010)
292 ATTORNEY Appearance for Plaintiffs Alex Jenkins, Barbara Levin, Ursula Levy, Paul Magit, Patricia Martin, Harry Schneider, Father Julian Von Duerbeck, Peter Wilkins, Tom Withey by Steven F. Pflaum (Pflaum, Steven) (Entered: 08/10/2010)
293 ATTORNEY Appearance for Plaintiffs Christopher Allen, Brian Bonner, Greg Brechon, Henry Thomas Coleman, Ilyse Friedman by Tonya Gentry Newman (Newman, Tonya) (Entered: 08/10/2010)
294 ATTORNEY Appearance for Plaintiffs Alex Jenkins, Barbara Levin, Ursula Levy, Paul Magit, Patricia Martin, Harry Schneider, Father Julian Von Duerbeck, Peter Wilkins, Tom Withey by Tonya Gentry Newman (Newman, Tonya) (Entered: 08/10/2010)
295 OBJECTIONS CERTAIN IMDs' OBJECTIONS TO PROPOSED SETTLEMENT AND CONSENT DECREE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Neiman, Robert) (Entered: 08/10/2010)
296 NOTICE by Ethel Williams, Jan Wrightsell Notice of Filing of Objections and Comments Regarding Proposed Settlement (Attachments: # 1 Exhibit A−1, # 2 Exhibit A−2, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G−1, # 9 Exhibit G−2, # 10 Exhibit G−3, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Exhibit K, # 15 Exhibit L−1, # 16 Exhibit L−2, # 17 Exhibit L−3, # 18 Exhibit L−4, # 19 Exhibit L−5, # 20 Exhibit L−6, # 21 Exhibit L−7, # 22 Exhibit M−1, # 23 Exhibit M−2, # 24 Exhibit N−1, # 25 Exhibit N−2, # 26 Exhibit N−3, # 27 Exhibit N−4, # 28 Exhibit N−5, # 29 Exhibit N−6, # 30 Exhibit N−7, # 31 Exhibit N−8, # 32 Exhibit N−9, # 33 Exhibit N−10, # 34 Exhibit O−1, # 35 Exhibit O−2, # 36 Exhibit P, # 37 Exhibit Q−1, # 38 Exhibit Q−2)(Wolf, Benjamin) (Entered: 08/10/2010)
297 MOTION by Plaintiffs Christopher Allen, Michelle Alper, John Arado, Denise Battle, Donna Blaha, Brian Bonner, Greg Brechon, Henry Thomas Coleman, Ilyse Friedman, Theda Goldstein, Irene Hafner, Alex Jenkins, Darnell Jones, Barbara Levin, Ursula Levy, Jacqueline Lewis, Paul Magit, Patricia Martin, Danny McLean, Melissa Lee Meyers, Harry Schneider, Jason Sherrell, Lisa Swan, Zena Swets, David Twomey, Father Julian Von Duerbeck, Tom White, Peter Wilkins, Leah Wilson, Tom Withey, Lois YesinowskiMiscellaneous Relief (Attachments: # 1 Exhibit Memorandum, # 2 Exhibit 1−2 to Memorandum, # 3 Exhibit 3−9 to Memorandum)(Choslovsky, William) Modified on 8/11/2010 (kj, ). (Entered: 08/10/2010)
298 NOTICE by Ethel Williams, Jan Wrightsell re notice of filing,,, 296 of corrected Exhibit K (Attachments: # 1 Exhibit K (corrected))(Wolf, Benjamin) (Entered: 08/10/2010)
299 NOTICE of Motion by William Choslovsky for presentment of motion for miscellaneous relief,, 297 before Honorable William T. Hart on 8/12/2010 at 11:00 AM. (Choslovsky, William) (Entered: 08/10/2010)
300 MINUTE entry before Honorable William T. Hart: Motion hearing reset to 8/19/2010 at 11:00a.m. on Objectors' motion for an extension of page limitation. No court appearance required on 8/12/2010.Mailed notice (slb, ) (Entered: 08/11/2010)
301 NOTICE by Ethel Williams, Jan Wrightsell re notice of filing,,, 296 (Attachments: # 1 Supplement Objections)(Wolf, Benjamin) (Entered: 08/16/2010)

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 36 of 38

08/17/2010 08/17/2010
08/17/2010 08/17/2010 08/17/2010 08/17/2010 08/18/2010
08/18/2010
08/18/2010
08/19/2010

302 MINUTE entry before Honorable William T. Hart: Objector's motion 297 for an extension of page limitation is granted. Leave of court is given to the Objectors to file instanter a 25−page memorandum in support of their objections to the proposed Consent Decree. Mailed notice (slb, ) (Entered: 08/17/2010)
303 MEMORANDUM by Christopher Allen, Michelle Alper, John Arado, Denise Battle, Donna Blaha, Brian Bonner, Greg Brechon, Henry Thomas Coleman, Ilyse Friedman, Theda Goldstein, Irene Hafner, Alex Jenkins, Darnell Jones, Barbara Levin, Ursula Levy, Jacqueline Lewis, Paul Magit, Patricia Martin, Danny McLean, Melissa Lee Meyers, Harry Schneider, Jason Sherrell, Lisa Swan, Zena Swets, David Twomey, Father Julian Von Duerbeck, Tom White, Peter Wilkins, Leah Wilson, Tom Withey, Lois Yesinowski in Support of Objections to Proposed Consent Decree by Absent Class Members and Family Members (Attachments: # 1 Exhibit Exhibits 1−2 to Memorandum, # 2 Exhibit Exhibits 3−9 to Memorandum)(Choslovsky, William) (Entered: 08/17/2010)
304 MOTION by Plaintiffs Ethel Williams, Jan WrightsellEstablish Procedures for Hearing (Wolf, Benjamin) (Entered: 08/17/2010)
305 NOTICE of Motion by Benjamin S. Wolf for presentment of motion for miscellaneous relief 304 before Honorable William T. Hart on 8/19/2010 at 11:00 AM. (Wolf, Benjamin) (Entered: 08/17/2010)
306 MOTION by Plaintiffs Ethel Williams, Jan Wrightsell to strike memorandum,, 303 to strike expert reports submitted by absent class members and familiy members (Wolf, Benjamin) (Entered: 08/17/2010)
307 NOTICE of Motion by Benjamin S. Wolf for presentment of (Wolf, Benjamin) (Entered: 08/17/2010)
308 RESPONSE by Christopher Allen, Michelle Alper, John Arado, Denise Battle, Donna Blaha, Brian Bonner, Greg Brechon, Henry Thomas Coleman, Ilyse Friedman, Theda Goldstein, Irene Hafner, Alex Jenkins, Darnell Jones, Barbara Levin, Ursula Levy, Jacqueline Lewis, Paul Magit, Patricia Martin, Danny McLean, Melissa Lee Meyers, Harry Schneider, Jason Sherrell, Lisa Swan, Zena Swets, David Twomey, Father Julian Von Duerbeck, Tom White, Peter Wilkins, Leah Wilson, Tom Withey, Lois Yesinowski to MOTION by Plaintiffs Ethel Williams, Jan WrightsellEstablish Procedures for Hearing 304 (Attachments: # 1 Exhibit 1)(Choslovsky, William) (Entered: 08/18/2010)
309 NOTICE by Christopher Allen, Michelle Alper, John Arado, Denise Battle, Donna Blaha, Brian Bonner, Greg Brechon, Henry Thomas Coleman, Ilyse Friedman, Theda Goldstein, Irene Hafner, Alex Jenkins, Darnell Jones, Barbara Levin, Ursula Levy, Jacqueline Lewis, Paul Magit, Patricia Martin, Danny McLean, Melissa Lee Meyers, Harry Schneider, Jason Sherrell, Lisa Swan, Zena Swets, David Twomey, Father Julian Von Duerbeck, Tom White, Peter Wilkins, Leah Wilson, Tom Withey, Lois Yesinowski re response to motion,, 308 (Choslovsky, William) (Entered: 08/18/2010)
310 RESPONSE by Abbott House, LLC, Albany Care, Inc., Bayside Terrace, LLC, Belmont Nursing Home, Inc., Bryn Mawr Care, Inc., Central Plaza Residential Home, Inc., Clayton Residential Home, Inc., Greenwood Care, Inc., Sharon Health Care Woods, Inc., Thornton Heights Terrace, Ltd., Wilson Care, Inc. to MOTION by Plaintiffs Ethel Williams, Jan WrightsellEstablish Procedures for Hearing 304 CERTAIN IMDs' RESPONSE BRIEF TO PLAINTIFFS' MOTION TO ESTABLISH PROCEDURES FOR HEARING (Attachments: # 1 Exhibit A)(Neiman, Robert) (Entered: 08/18/2010)
311 MINUTE entry before Honorable William T. Hart: Plaintiffs' motion to strike memorandum 306 is denied. Plaintiff's motion to establish procedures 304 is granted in part and denied in part. The September 7, 2010 fairness hearing will be held in Courtroom 2525. The times allotted for presentations are as follows: (a) Class Plaintiffs (including class counsel, experts, and residents, guardians, or family members): 80 minutes; (b) Defendants: 15 minutes; (c) Objector Plaintiffs Group: counsel 10 minutes and 5 residents or guardians 3 minutes each; (d) 5 objecting residents, guardians, or resident family members: 3 minutes each; (e) IMDs: 10 minutes; (f) United States: 5 minutes; and (g) Class Plaintiffs: 10

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 37 of 38

08/20/2010 08/24/2010 08/25/2010
08/25/2010 08/25/2010 08/27/2010
09/01/2010 09/07/2010 09/09/2010 09/21/2010 09/21/2010 09/21/2010 09/29/2010

minutes rebuttal. Class Plaintiffs shall post a sign−in sheet outside the courtroom(s) on which those attending the fairness hearing can list their name; whether a resident, relative, or other; IMD in which the signer or a relative lives; and whether the signer supports or opposes the Settlement.Mailed notice (slb, ) (Entered: 08/19/2010)
312 NOTICE by Ethel Williams, Jan Wrightsell (Attachments: # 1 Supplement comments regarding modified proposed consent decree received by plaintiffs' counsel on or after August 16, 2010)(Wolf, Benjamin) (Entered: 08/20/2010)
313 RESPONSE by Defendants Damon T. Arnold, Barry S Maram, Pat Quinn, Lorrie Rickman−Jones, Michelle R.B. Saddler to memorandum,, 303 , objections 295 to consent decree (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3)(Stratton, Brent) (Entered: 08/24/2010)
314 MOTION by Plaintiffs Ethel Williams, Jan Wrightsell for leave to file excess pages (Attachments: # 1 Plaintiffs' Supplemental Memorandum in Support of Approval of Consent Decree and Resposnse to Objections, # 2 List of Exhibits, # 3 Exhibit 1, # 4 Exhibit 1, part 2, # 5 Exhibit 2, # 6 Exhibit 2, part 2, # 7 Exhibit 3, # 8 Exhibit 3, part 2, # 9 Exhibit 3, part 3, # 10 Exhibit 3, part 4, # 11 Exhibit 3, part 5, # 12 Exhibit 3, part 6, # 13 Exhibit 3, part 7, # 14 Exhibit 3, part 8, # 15 Exhibit 3, part 9, # 16 Exhibit 3, part 10, # 17 Exhibit 3, part 11, # 18 Exhibit 4, # 19 Exhibit 5)(Wolf, Benjamin) (Entered: 08/25/2010)
315 NOTICE of Motion by Benjamin S. Wolf for presentment of motion for leave to file excess pages,, 314 before Honorable William T. Hart on 8/26/2010 at 11:00 AM. (Wolf, Benjamin) (Entered: 08/25/2010)
316 MINUTE entry before Honorable William T. Hart: Plaintiffs' motion for leave to file a 34−page Supplemental Memorandum in Support of Approval of Consent Decree andResponse to Objections is granted. No court appearance required on 8/26/2010. Mailed notice (slb, ) (Entered: 08/25/2010)
317 Supplemental Memorandum by Ethel Williams, Jan Wrightsell in Support of Approval of Consent Decree and Response to Objections (Attachments: # 1 List of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, part 1, # 5 Exhibit 3, part 2, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Certificate of Service)(Wolf, Benjamin) (Entered: 08/27/2010)
318 NOTICE by Ethel Williams, Jan Wrightsell of 3rd supplemental filing of comments regarding proposed modified consent decree (Attachments: # 1 3rd supplemental filing − objecitons/comments to proposed consent decree)(Wolf, Benjamin) (Entered: 09/01/2010)
319 MINUTE entry before Honorable William T. Hart:Fairness hearing held on 9/7/2010. Mailed notice (slb, ) (Entered: 09/08/2010)
320 NOTICE by Gilbert Parham, Ethel Williams, Jan Wrightsell of filing sign−in sheets and summary (Attachments: # 1 Summary and sign in sheets from 9−7−10 fairness hearing)(Turner, Lori) (Entered: 09/09/2010)
321 MOTION by counsel for Plaintiffs Ethel Williams, Jan Wrightsell to withdraw as attorney Elizabeth J. Kappakas (Marston, Angela) (Entered: 09/21/2010)
322 NOTICE of Motion by Angela Dickson Marston for presentment of motion to withdraw as attorney 321 before Honorable William T. Hart on 9/23/2010 at 11:00 AM. (Marston, Angela) (Entered: 09/21/2010)
323 MINUTE entry before Honorable William T. Hart: Motion hearing set for 9/23/2010 is stricken. Plaintiffs unopposed motion for leave to withdraw Elizabeth J. Kappakas as one of the attorneys for plaintiffs 321 is granted. Mailed notice (gmr, ) (Entered: 09/22/2010)
324 MINUTE entry before Honorable William T. Hart: The settlement reached with the defendants in this case is found to be fair, adequate, and reasonable and is approved. The Clerk of the Court is directed to enter the Consent Decree. The Clerk of the Court is further directed to enter judgment in favor of Class Counsel and against defendants in the amount of $1,990,000 representing attorney fees,

Case: 1:05-cv-04673 As of: 02/02/2011 09:07 AM CST 38 of 38

09/29/2010 09/29/2010 09/29/2010 10/20/2010
10/20/2010 10/21/2010 10/21/2010 10/28/2010
11/01/2010
11/01/2010 11/01/2010 11/01/2010 11/01/2010 01/28/2011

costs, and expenses. The court retains jurisdiction to enforce the terms of the Consent Decree. Within 21 days, the parties shall submit their nominee(s) for Monitor, including the nominee(s)' curriculum vitae. A status hearing is set for October 28, 2010 at 11:00 a.m. Civil case terminated. (For further detail see attached Opinion and Order.) Judicial staff notice (gmr, ) (Entered: 09/30/2010)
325 OPINION and Order Signed by the Honorable William T. Hart on 9/29/2010. (gmr, ) (Entered: 09/30/2010)
326 CONSENT Decree Signed by the Honorable William T. Hart on 9/29/2010. (gmr, ) (Entered: 09/30/2010)
327 ENTERED JUDGMENT. (gmr, ) (Entered: 09/30/2010)
328 MOTION by Defendants Carol L Adams, Damon T. Arnold, Barry S Maram, Pat Quinn, Lorrie Rickman−Jones, Michelle R.B. Saddler, Lorrie Stone, Plaintiffs Edward Brandon, Gilbert Parham, Ethel Williams, Jan WrightsellJoint Motion to Appoint Monitor (Attachments: # 1 Exhibit CV of Dennis Jones)(Wolf, Benjamin) (Entered: 10/20/2010)
329 NOTICE of Motion by Benjamin S. Wolf for presentment of motion for miscellaneous relief, 328 before Honorable William T. Hart on 10/28/2010 at 11:00 AM. (Wolf, Benjamin) (Entered: 10/20/2010)
330 MOTION by Plaintiffs Edward Brandon, Gilbert Parham, Ethel Williams, Jan Wrightsell to amend/correct entered judgment 327 (Wolf, Benjamin) (Entered: 10/21/2010)
331 NOTICE of Motion by Benjamin S. Wolf for presentment of (Wolf, Benjamin) (Entered: 10/21/2010)
332 MINUTE entry before Honorable William T. Hart:Status hearing held. Joint motion to appoint monitor 328 is granted. Plaintiffs' motion to amend judgment 330 is granted. Counsel is to submit signature orders. Status hearing set for 3/24/2011 at 11:00 AM.Mailed notice (clw, ) (Entered: 11/01/2010)
333 MINUTE entry before Honorable William T. Hart:The judgment entered on 9/29/2010 is amended to reflect that the award of $1,990,000 represents attorneys' fees only and does not include any costs or expenses incurred by the class counsel. Enter Order to Amend Judgment. [For further detail see separate order(s).]Mailed notice (lp, ) (Entered: 11/03/2010)
334 ORDER To Amend Judgment Signed by the Honorable William T. Hart on 11/1/2010:(lp, ) (Entered: 11/03/2010)
335 ENTERED AMENDED JUDGMENT. (lp, ) (Entered: 11/03/2010)
336 MINUTE entry before Honorable William T. Hart: The Court appoints Dennis Jones to serve as Monitor. Enter Agreed Order Appointing Monitor. [For further detail see separate order(s).]Mailed notice (lp, ) (Entered: 11/03/2010)
337 AGREED Order Appointing Monitor Signed by the Honorable William T. Hart on 11/1/2010:(lp, ) (Entered: 11/03/2010)
338 ATTORNEY Appearance for Plaintiffs Edward Brandon, Gilbert Parham, Ethel Williams, Jan Wrightsell by Patricia A. Werner (Werner, Patricia) (Entered: 01/28/2011)