Case: 1:10-cv-03121 Document #: 12 Filed: 06/02/10 Page 1 of 5 PageID #:142

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

WILLIAM R. HAMPE, by and through his

mother I guardian Jill Hampe, individually

and on behalf of a class,

Plaintiff,

vs.

JULIE HAMOS, in her official capacity as Director of the Illinois Department of Healthcare and Family Services,
Defendant.

)

)

)

) ) No.

10-3121

) ) Judge: William J. Hibler

)

) Magistrate: Arlander Keys

)

)

)

PLAINTIFFS MOTION FOR CLASS CERTIFICATION
Now comes the Plaintiffs, by and through their attorney, Robert H. Farley, Jr., Ltd., and
requests that this Court pursuant to Rule 23 ofthe F.R.C.P. to certify a class of Plaintiffs. In
support ofthis motion, the Plaintiffs state as follows:
1. Plaintiffs seek certification of this action as a class action pursuant to Rule 23(b)(2) of
the Federal Rules of Civil Procedure.
2. The Class consists ofthe following:
All persons who are enrolled or will be enrolled or were enrolled in the State of Illinois Medically Fragile, Technology Dependent Medicaid Waiver Program (MF/TD) or Medicaid and when they obtain the age of21 years are subjected to reduce Medicaid funding which reduces the medical level of care which they had been receiving prior to obtaining 21 years.
3. The Class is so numerous that joinder of all persons is impracticable. As of September
1, 2009, 504 children were receiving services in the MF/TD program on that specific date. From

1

Case: 1:10-cv-03121 Document #: 12 Filed: 06/02/10 Page 2 of 5 PageID #:143
July 1, 2007 through June 30, 2008, 606 children had received services in the MF/TD program. 1 "For the period of July 1, 2007 through [December, 2009], 37 individuals aged out of the waiver. "2 In Jones v. Maram, 373 Ill.App.3d 184 (3rd Dist. 2007), Barbara Ginder from the State of Illinois stated in an affidavit "there were 34 active cases of 18 to 20-year-old individuals, 19 of whom were ventilator dependent" in the MFTDC program. !d., at 192. "Ginder stated these individuals are likely to transition from MF/TD to HSP [Home Services Program] (if they select) at age 21." !d. The class members have limited financial resources and are unlikely to institute individual actions.
4. The claims of the class members raise common questions oflaw and fact. These include:
(a) Whether the Defendant violated the ADA and Rehabilitation Act by reducing the level of funding for persons enrolled in the Illinois Medically Fragile, Technology Dependent Medicaid Waiver Program or Medicaid which resulted in a reduction of medical services.
(b) Whether the ADA and Rehabilitation Act permits the Defendant to reduce the level of funding which results in a reduction of medical services for disabled persons after the age of 21, even though there has been no change in their medical needs.
(c) Whether a fundamental alteration of the Illinois disability programs would occur if the Defendant provided funding to continue the same level of services for the Plaintiff and the putative class when they tum the age of 21 years;
1 Exhibit "A" at page 3, Section 1 -"Report of Medicaid Services for Persons who are Medically Fragile, Technology Dependent- December, 2009."
2 Exhibit "A" at page 9, Section 6. 2

Case: 1:10-cv-03121 Document #: 12 Filed: 06/02/10 Page 3 of 5 PageID #:144
(d) Whether compelling an increase in the "exceptional care rate" for persons exiting the MF/TD program into the Illinois Home Services Program is unreasonable under the ADA and Rehabilitation Act; and
(e) Whether the Illinois disability programs can reasonable accommodate a modification to their existing programs to allow the Plaintiff and putative class to continue to receive the same level of care in the community when they tum 21 years of age.
The common questions of fact and law predominate over questions affecting only individual class members.
5. The Plaintiff's claims is typical ofthe class members' claims. 6. The Plaintiff is an adequate representatives ofthe class because he suffers from deprivations identical to those of the class members and has been denied the same federal rights that he seeks to enforce on behalf of the other class members. The Plaintiff will fairly and adequately represent the interests of the other class members, many ofwhom are unable to pursue claims on their own behalf as the result of their disabilities. Plaintiff's interest in obtaining injunctive relief for the violations of constitutional rights and privileges are consistent with and not antagonistic to those of any person within the class. Plaintiff's counsel is qualified, experienced and able to conduct the proposed litigation. 7. A class action is superior to other available methods for the fair and efficient adjudication of the controversy in that:
(i) A multiplicity of suits with consequent burden on the courts and defendants should be avoided.
(ii) It would be virtually impossible for all class members to intervene as parties-
3

Case: 1:10-cv-03121 Document #: 12 Filed: 06/02/10 Page 4 of 5 PageID #:145
plaintiffs in this action. 8. This matter is brought as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure because the party opposing the class has acted or refused to act on grounds generally applicable to the class, making appropriate final injunctive relief. The prosecution of separate actions by individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class. Wherefore, the Plaintiffs request that this Court enter an order certifying this action as a class action under Rule 23(b)(2).
Respectfully submitted, Is/ Robert H Farley, Jr. Attorney for Plaintiff
Robert H. Farley, Jr. Robert H. Farley, Jr., Ltd. 1155 S. Washington Street Naperville, IL 60540 Phone: 630-369-0103 Fax: 630-369-019
4

Case: 1:10-cv-03121 Document #: 12 Filed: 06/02/10 Page 5 of 5 PageID #:146 CERTIFICATE OF SERVICE
I, Robert H. Farley, Jr., Attorney for the Plaintiff, deposes and states that he caused the foregoing Plaintiffs' Motion For Class Certification to be to be served by electronically filing said document with the Clerk of the Court using the CM/ECF system, this 2nd day of June, 2010.
Is/ Robert H Farley, Jr.
5

 
 Case: 1:10-cv-03121 Document #: 13 Filed: 06/02/10 Page 1 of 13 PageID #:172

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

WILLIAM R. HAMPE, by and through his mother I guardian Jill Hampe, individually and on behalf of a class,
Plaintiff,
vs.
JULIE HAMOS, in her official capacity as Director of the Illinois Department of Healthcare and Family Services,
Defendant.

)

)

)

)

) No.

10-3121

)

) Judge: William J. Hibler

)

) Magistrate: Arlander Keys

)

)

)

PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF CLASS CERTIFICATION

Now comes the Plaintiff, by and through his attorney and files this Memorandum of Law

in support of the Plaintiffs Motion for Class Certification as follows:

INTRODUCTION

The Plaintiff, a medically fragile person, on behalf of himself and others similarly

situated, has been found by the State of Illinois to be eligible and have been enrolled in the

Illinois "Medicaid Home and Community-Based Services (HCBS) Waiver for Children that are

Medically Fragile, Technology Dependent" program (MFITD) or Medicaid. Enrollment in the

MFITD program is only available to persons under the age of21 and when William will tum 21

on June 18, 2010 or when any person enrolled in the program turns 21 in the MFIlTD program,

the Defendant's policy and practice is to reduce the existing medical funding by approximately

50% based solely on the fact that the person is now 21. The reduction in funding is not due to a

change in a person's medical needs but on the fact that the person's funding at age 21 comes

Case: 1:10-cv-03121 Document #: 13 Filed: 06/02/10 Page 2 of 13 PageID #:173
from a different State program, which has significant caps on funding. The reduction in funding will either result in William and others similarly situated becoming institutionalized (hospitalized) or if the person remains in his family home without sufficient skilled nursing care, then that person faces a strong possibility of imminent death.
The Plaintiff has brought this action to enjoin the policy and/or practice of the Defendant to reduce funding for necessary and needed medical services when aging out of the State of Illinois Medically Fragile, Technology Dependent program (MF/TD). The Plaintiff claims that the Defendant's practice to reduce necessary medical funding when aging out of the MF/TD program or Medicaid violates the Americans with Disabilities Act, 42 U.S.C. Sec. 12132 and Section 504 of the Rehabilitation Act, 29 U.S.C. Sec. 794(a) and their implementing regulations, 28 C.F.R. Sec. 35.130(d), 41.51(d).
CLASS DEFINITION The Plaintiffs seek certification as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. The proposed class is defined as follows:
All persons who are enrolled or will be enrolled or were enrolled in the State of Illinois Medically Fragile, Technology Dependent Medicaid Waiver Program (MF/TD) or Medicaid and when they obtain the age of21 years are subjected to reduce Medicaid funding which reduces the medical level of care which they had been receiving prior to obtaining 21 years.
ARGUMENT Parties seeking class action certification must first satisfy the provisions of Rule 23(a) of the Federal Rules of Civil Procedure. Then, in addition, the case must fit within at least one of the three subcategories under Rule 23(b). Rosario v. Lividitis, 963 F.2d 1013, 1017 (7111 Cir.
2

Case: 1:10-cv-03121 Document #: 13 Filed: 06/02/10 Page 3 of 13 PageID #:174
1992), cert. denied, 506 U.S. 1051, 113 S. Ct.972 (1993). All four 23 (a) prerequisites are quite undoubtedly satisfied here, and this case falls squarely under the 23 (b)(2) category.
On a motion for class certification, the Court must accept as true all facts alleged in Plaintiffs' complaint. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-178, 94 S. Ct. 2140, 2152 ( 1974) ("We find nothing in either the language or history of Rule 23 that gives 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."); Gammon v. GC Services Limited Partnership, 162 F.D.R. 313, 315, n. 2 (N.D. Ill. 1995) (When evaluating a motion for class certification, the Court accepts all well-pleaded facts as true."); Pertiz v. Liberty Loan Corp., 523 F.2d 349, 353-54(7th
.
Cir. 1975); Gomez v. Illinois State Bd. OfEduc., 117 F.R.D. 394, 396 (N.D. Ill. 1987): Newburg on Class Actions, Sec. 3.20, p. 3-124 ("It is settled law that any preliminary inquiry into or consideration of the merits of litigation is improper in connection with a determination of the propriety of a class action,") Moreover, "the interests ofjustice require that in a doubtful case...any error, if there is to be one, should be committed in favor of allowing a class action." Eisenberg v. Gagnon, 766 F.2d 770, 785 (3rct Cir.), cert. Denied, 474 U.S. 946 (1985); Esplin v. Hirschi, 402 F.2d 94, 101 (lOth Cir), cert denied, 394 U.S. 928 (1969); Tapken v. Brown, 1992 WL 17894, *26 (S.D. Fla); Horton v. Goose Creek Independent School District, 690 F.2d 470, 487, n. 32 (5th Cir. 1982), cert. denied, 463 U.S. 1207 (1983); Brown v. Cameron-Brown Co., 92 F.R.D. 32,50 (E.D. Va. 1981).
Additionally, civil rights cases alleging discriminatory policies or practices are "by definition" class actions, provided they meet the other requirements of Rule 23(a). General Telephone Co., v. Falcon, 457 U.S. 147, 157 (1982); see also Robert E. v. Lane, 530 F.Supp.
3

Case: 1:10-cv-03121 Document #: 13 Filed: 06/02/10 Page 4 of 13 PageID #:175
930, 944 (N.D. Ill. 1980) (a case alleging civil rights violations represent a "prototypical candidate" for class certification). Class certification is routinely allowed in civil rights cases alleging states' violations ofthe community integration mandates of the Americas with Disabilities Act. See Colbert v. Blagojevich, 2008 U.S. Dist. LEXIS 75102, *28 (N.D. Ill. Sept. 29, 2008) (J. Lefkow) (certifying class consisting of"all Medicaid-eligible adults with disabilities in Cook County, Illinois, who are being, or may in the future be, unnecessary confined to nursing facilities and who, with appropriate supports and services, may be able to live in a community setting").
1. Plaintiff Has Established The Prerequisites For A Class Action Pursuant To Rule 23(a)
A. Numerosity The Class is so numerous that joinder of all persons is impracticable. The Illinois Department of Healthcare and Family Services "Report of Medicaid Services for Persons who are Medically Fragile, Technology Dependent" dated December, 2009 stated that as of September 1, 2009, 504 children were receiving services in the MF/TD program on that specific date. The report fm1her states that from July 1, 2007 through June 30, 2008, 606 children had received services in the MF/TD program. (See Exhibit "A" attached to Plaintiffs Motion for Class Certification at page 3, Section 1) 37 individuals aged out of the waiver for the period of July 1, 2007 through December, 2009. (See Exhibit "A" attached to Plaintiffs Motion for Class Certification at page 9, Section 6) In Jones v. Maram, 373 Ill.App.3d 184 (3rct Dist. 2007), Barbara Ginder from the State of Illinois stated in an affidavit "there were 34 active cases of 18 to 20-year-old individuals, 19 of
4

Case: 1:10-cv-03121 Document #: 13 Filed: 06/02/10 Page 5 of 13 PageID #:176

whom were ventilator dependent" in the MFTDC program. !d., at 192. "Ginder stated these individuals are likely to transition from MF/TD to HSP [Home Services Program] (if they select) at age 21." !d. The class members have limited financial resources and are unlikely to institute

individual actions. Courts have ruled that a class action can proceed with a group which would encompass

the size of the persons either enrolled or exiting the MF/TD program. See Barner v. City of Harvey, 1997 U.S. Dist. LEXIS 3570, No. 95 C 3316, 1997 WL 139469, at *3 (N.D. Ill. Mar. 25, 1997) (class of 13 sufficiently numerous); Davy v. Sullivan, 354 F.Supp. 1320 (M.D. Ala. 1973)

(class of 10 adequate). Case law has also recognized that courts should make "common assumptions" to support

a finding of numerosity. Grossman v. Waste Management, Inc., 162 F.R.D. 322, 329 (N.D. Ill.

1995). The numerosity requirement should be construed liberally in civil rights actions. Jones v.

Diamond,

519

F.2d

1090,

1100

(5

1 h

Cir,

1975).

Other circumstances also point to impracticability of joinder. As Medicaid recipients,

class members are located throughout the state and do not have the financial means to bring individual lawsuits. Fields v. Maram, 2004 U.S. Dist. LEXIS 16291, *18 ("Because the class members reside throughout the state, and because they are disabled and therefore are often of limited financial resources, joinder would be particulary difficult in this case."). Finally, judicial economy plainly would be served by consolidating the actions of all similarly-situated persons rather than having them litigate individually. Arenson v. Whitehall Convalescent & Nursing Home, 164 F.R.D. 659, 663 (N.D. Ill. 1996). Accordingly, in this case, numerosity is satisfied

because the joinder of all individuals affected by the Defendant's policy is impracticable.

5

Case: 1:10-cv-03121 Document #: 13 Filed: 06/02/10 Page 6 of 13 PageID #:177
B. Commonality Rule 23(a) requires that there "need be only a single issue common to all members of the class." Edmondson v. Simon, 86 F.R.D. 375, 380 (N.D. Ill. 1980); Hispanics United v. Vi!!. of Addison, 160 F.R.D. 681, 688 (N.D. Ill. 1995). "A common nucleus of operative fac 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 Palso, 118 F.3d 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 ofthe putative class members.") (citations omitted); Baby Neal v. Casey, 43 F.3d 48, 55 (3rd Cir. 1994) (commonality met where "named plaintiffs share at least one question of fact or law with the grievances of the prospective class"); Marisof A. v. Guiliani, 126 F.3d 372,375 (2nd Cir. 1997) (class must "share a common question of law or fact"). In fact, "[w]hen the party opposing the class has engaged in some course of conduct that effects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected." Newburg on Class Actions, Sec. 3.1 0, p 3-51. So long as one issue of law or fact is common to the class, "the presence of individual questions will not prevent satisfaction of the Rule 23 (a) (2) prerequisite." !d. at p. 360. See also Ivy v. Meridian Coco-Cola Bottling Co., 108 F.R.D. 118, 123 (S.D. Miss. 1985) (holding that commonality and typicality were satisfied in an employment discrimination case despite the defendant's argument that individual questions would predominate concerning each hiring decision); Patrykus, 121 F.R.D. at 361 (holding that "[d]ifferences in individual cases concerning treatment or damages does not defeat commonality"); Krislov v. Rednour, 946
6

Case: 1:10-cv-03121 Document #: 13 Filed: 06/02/10 Page 7 of 13 PageID #:178
F.Supp. 563, 568 (N.D. Ill1996). Even when the effect on each class member differs, an allegation that the defendant's
discriminatory policy or practice affects the class as a whole will suffice to prove commonality of claims. Rosairio v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992) ("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)). Thus,
even if each class member's remedy differs, there is commonality if the injury flows from the
same discriminatory acts or omissions. See Marisol A. v. Guiliani, 126 F.3d 372, 376 (2"ct Cir.
1997) (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.") The common questions of law and fact in the present case are as follows: (a) Whether the Defendant violated the ADA and Rehabilitation Act by reducing the level of funding for persons enrolled in the Illinois Medically Fragile, Technology Dependent Medicaid Waiver Program or Medicaid which resulted in a reduction of medical services. (b) Whether the ADA and Rehabilitation Act permits the Defendant to reduce the level of funding which results in a reduction of medical services for disabled persons after the age of 21, even though there has been no change in their medical needs. (c) Whether a fundamental alteration of the Illinois disability programs would occur if the Defendant provided funding to continue the same level of services for the Plaintiff and the putative class when they turn the age of 21 years.
(d) Whether compelling an increase in the "exceptional care rate" for persons exiting the MF/TD program into the Illinois Home Services Program is unreasonable under the ADA and Rehabilitation Act.
(e) Whether the Illinois disability programs can reasonable accommodate a
7

Case: 1:10-cv-03121 Document #: 13 Filed: 06/02/10 Page 8 of 13 PageID #:179
modification to their existing programs to allow the Plaintiff and putative class to continue to receive the same level of care in the community when they turn 21 years of age. Accordingly, this Court should find that commonality exists. C. Typicality Typicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct. General Telephone Company ofSouthwest v. Falcon, 457 U.S. 147, 152 (1982). When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is met irrespective of varying fact patterns which underlie individual claims. ld; see also Robidoux v. Celani, 987 F.2d 931, 936-937 (2nd Cir. 1998); Baby Neal ex ref Kanter v. Casey, 43 F.3d 48,56 (3rct Cir. 1994). Courts should look to the elements ofthe cause of action that the class representative must prove in order to establish the defendant's liability. If they are substantially the same as those needed to be proved by the class members' claims, the representative's claim is typical. Johns v. DeLeonardis, 145 F.R.D. 480, 483 (N.D. Ill. 1992). As with commonality, typicality does not require that all class members suffer the same injury as the named plaintiff. "Instead, we look to the defendant's conduct and the plaintiffs legal theory to satisfy Rule 23(a)(3)." Rosario v. Livaditis, 963 F.2d 1013, 1018 (71h Cir. 1992); see also De La Fuente v. Stokely- Van Camp, 713 F.2d 225, 232 (71h Cir. 1983) (typicality 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.").
8

Case: 1:10-cv-03121 Document #: 13 Filed: 06/02/10 Page 9 of 13 PageID #:180
Here, the Plaintiffs claims are typical of the claims of the class. The Plaintiff, a medically fragile person, on behalf of himself and others similarly situated, has been found by the State of Illinois to be eligible and have been enrolled in the Illinois "Medicaid Home and CommunityBased Services (HCBS) Waiver for Children that are Medically Fragile, Technology Dependent" program. (MF/TD) When the Plaintiff turns 21 or when any person enrolled in the MF/TD turns 21, the Defendant's policy and practice is to reduce the existing medical funding by approximately 50% based solely on the fact that the person is now 21. The reduction in funding is not due to a change in a person's medical needs but on the fact that the person's funding at age 21 comes from a different State program, which has significant caps on funding. 1 The reduction in funding will either result in the Plaintiff and others similarly situated becoming institutionalized (hospitalized) or if the person remains in his family home without sufficient skilled nursing care, then that person faces a strong possibility of imminent death.
Because the named Plaintiff and the class share the same deprivations of federal rights, typicality is met here.
D. Adequacy of representation The two factors that are universally recognized as the guidelines for adequate representation are: 1) the representative must not have interests antagonistic to or conflicting with the interests of the class, and 2) the representative must appear able to prosecute the action
1 William currently receives funding from the Defendant for approximately 16 hours a day skilled nursing level of care at his home (112 hours per week) plus he is eligible for 336 respite skilled nursing hours per year. (Plts. Complaint par. 18(a)). The current level of funding is approximately $18,000 per month, so that he does not have to be institutionalized or hospitalized at a rate of approximately $55,000 per month. (Plts. Compl. par. 19). When William turns 21, the Defendant reduces his level of funding to an "exceptional care rate" of $9,426 per month if he wishes to remain living at home. (Plts. Compl. par. 20-21 ).
9

Case: 1:10-cv-03121 Document #: 13 Filed: 06/02/10 Page 10 of 13 PageID #:181
vigorously through qualified counsel. Newberg on Class Actions, Sec. 3.22, p. 3-126. See also Prudential, 148 F.3d at 312; Amchen Products, Inc. v. Windsor, 521 U.S. 591, 626, n. 20, 117 S.Ct. 2231 (1997). In re United Energy Corp. Solar Power Modules Tax Shelter Invs. Sees. Litig., 122 F.R.D. 251, 257 (C.D. Cal. 1988) (holding that the plaintiffs were adequate representatives for the class where they expressed an interest in and understanding of the case and participated in depositions). The party opposing a class has the burden to establish that representation is inadequate. Lewis v. Curtis, 671 F.2d 779, 788 (3rd Cir. 1982 ), cert. denied, 459 U.S. 880, 103 S.Ct. 176 (1982).
The Plaintiff is an adequate representative of the putative class. The ability of the Plaintiff to represent the class goes to whether he has "sufficient interest in the outcome to insure vigorous advocacy," Rosario, 963 F.2d at 1018, as well as any interests "antagonistic to the interests ofthe class." Riordan, 113 F.R.D. 60, 64 (N.D. Ill. 1986). Courts may deny certification based on grounds of antagonism only if that antagonism "goes to the subject matter of the litigation." !d. Potential conflicts that are remote or speculative will not defeat class certification. Hi~panics United, 160 F.R.D. at 689.
In this case, the Plaintiffs interest is entirely coextensive with those of the class. The Plaintiff and the putative class share the same claim to prevent the Defendant from reducing the level of necessary medical funding when they turn 21 years of age in order to avoid institionalization (hospitalization) or avoid remaining in the community with reduced funding without sufficient skilled nursing care faces a strong possibility of imminent death. There are no conflicts or antagonism, whether actual or apparent, between the named Plaintiff and the class.
Counsels for the Plaintiff is an experienced civil rights attorney with experience in
10

Case: 1:10-cv-03121 Document #: 13 Filed: 06/02/10 Page 11 of 13 PageID #:182

complex class action litigation. Robert H. Farley, Jr. has been class counsel in Bullock v.

Sheahan, No. 04 C 1051 (Judge Bucklo); Streeter v. SheriffofCook County, No. 08-732 (Judge

Castillo); Phipps v. SheriffofCook County, No. 07-3889 (Judge Bucklo); and Gary v. Sheahan,

No. 96 C 7294 (Judge Coar).

2. Plaintiffs Meet The Requirements Of Rule 23(b)(2)

Plaintiffs meet the requirements of Rule 23(b)(2), which allows courts to certify a class 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.Proc.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 Defendant's policies and

practices affect all members ofthe class as well as the named Plaintiffs, the remediation of which

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 Medicaid recipients seek to enforce their rights to benefits.

See

Doe by Doe,

v.

Chiles,

136

F.3d

709,712

(11

1 h

Cir.

1998);

Marisol v.

Guiliani,

126F.3d

372, 278 (2nct Cir. 1997); Baby Neal v. Casey, 43 F.3d 48, 64 (3'ct Cir. 1994); 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); Memisovski v. Maram, 2004 U.S.Dist.LEXIS 16722 (N.D. Ill.

2004); and Fields v. Maram, 2004 U.S.Dist.LEXIS 16291 (N.D. Ill. 2004). See also, Bzdawka v.

Milwaukee County, 238 F.R.D. 469, 476 (E.D. Wis. 2006) (class of elderly disabled persons in

11

Case: 1:10-cv-03121 Document #: 13 Filed: 06/02/10 Page 12 of 13 PageID #:183 claim under ADA integration mandate); Makin v. Hawaii, 114 F.Supp. 2d 1017, 1020 (D. Haw. 1999) (class of persons living at home certified in claim under ADA integration mandate).
CONCLUSION Wherefore, for the foregoing reasons, the Plaintiffs respectfully request that this Court grant Plaintiffs Motion for Class Certification and certify the proposed class.
Respectfully submitted, Is/ Robert H Farley, Jr. Attorney for Plaintiff
Robert H. Farley, Jr. Robert H. Farley, Jr., Ltd. 1155 S. Washington Street Naperville, IL 60540 Phone: 630-369-0103 Fax: 630-369-0195
12

Case: 1:10-cv-03121 Document #: 13 Filed: 06/02/10 Page 13 of 13 PageID #:184 CERTIFICATE OF SERVICE
I, Robert H. Farley, Jr., Attorney for the Plaintiff, deposes and states that he caused the foregoing Plaintiffs' Motion For Class Certification to be to be served by electronically filing said document with the Clerk of the Court using the CM/ECF system, this 2nd day of June, 2010.
Is/ Robert H Farley, Jr.
13

 
 Case: 1:10-cv-03121 Document #: 26 Filed: 07/16/10 Page 1 of 16 PageID #:519

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

WILLIAM R. HAMPE, by and through his Mother/guardian Jill Hampe, individually and on behalf of a class,
Plaintiff,
vs.
JULIE HAMOS, in her official capacity as Director of the Illinois Department of Healthcare and Family Services,
Defendant.

)

)

)

)

)

Case No. 10-3121

)

Judge Hibler

)

Magistrate Judge Keys

)

)

)

)

)

)

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

The United States files this Statement of Interest, pursuant to 28 U.S.C. § 517, because this litigation implicates the proper interpretation and application of the integration mandate of title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et. seq. See Olmstead v. L.C., 527 U.S. 581 (1999). The Department of Justice has authority to enforce title II, 42 U.S.C. § 12133, and to issue regulations implementing the statute, id. at § 12134. Accordingly, the United States has a strong interest in the resolution of this matter.
INTRODUCTION This litigation involves the defendant’s systematic failure to modify its current policies and practices of providing insufficient home-based medical care for Medicaid-eligible adults to prevent institutionalization. Children and young adults in the State of Illinois who have exceptional medical needs are eligible to receive home-based Medicaid services to avoid institutionalization under the State’s Medically Fragile/Technology Dependent (“MF/TD”) waiver program. Under defendant’s regulatory scheme, however, once these individuals reach

Case: 1:10-cv-03121 Document #: 26 Filed: 07/16/10 Page 2 of 16 PageID #:520
the age of 21, they are ineligible for the MF/TD waiver. Because the adult waiver program to
which a majority of people transition does not provide community-based services at the same
level, these individuals may be forced to enter an institution in order to receive the medical
services they need to survive. 1 These institutional placements are often more costly to the State.
This lawsuit alleges that defendant administers the waiver programs available in Illinois,
including the MF/TD and the Home Services Program (“HSP”) waiver programs, in a manner
that constitutes unlawful discrimination under title II of the ADA, 42 U.S.C. § 12131 and Section
504 of the Rehabilitation Act, 29 U.S.C. § 794(a). (Compl. ¶ 52-68). Plaintiffs are a putative
class of:
[A]ll persons who are enrolled or will be enrolled in the State of Illinois Medically Fragile, Technology Dependants Waiver Program (MF/TD) or Medicaid and when they obtain the age of 21 years are subjected to reduce [sic] Medicaid funding which reduces the medical level of care which they had been receiving prior to obtaining 21 years. (Mot. Class. Cert. ¶ 2).
The United States supports the Plaintiffs’ Motion for Class Certification because it
advances the important public interest in community integration. 2 The proposed class meets the
legal standard for certification under Rule 23.3 Class actions provide appropriate mechanisms
1 A state report on the MF/TD waiver indicates that “the children in the MF/TD waiver typically transition into the persons with disabilities waiver at 21 years of age.” See “Report of Medicaid Services for Persons who are Medically Fragile, Technology Dependent,” January 2010, Pl. Ex. A at 13.
2 Recent litigation highlights the State of Illinois’ heavy reliance on segregated, institutional settings to serve people with disabilities, contrary to the national trend of serving people with disabilities in the community and the Olmstead mandate. See Ligas v. Maram, No. 05-C-4331 (N.D. Ill.); Williams v. Quinn, No. 05-C-4673 (N.D. Ill.). The Department of Justice has participated in both cases in various capacities, including by participating as a non-party in the Ligas settlement conference and filing a statement of interest in support of the Joint Proposed Consent Decree in Williams.
3The proposed class does not require individual determinations of eligibility as “qualified individuals with disability” or “otherwise qualified” under the ADA or the Rehabilitation Act
2

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for enforcing the integration mandate of title II and certification of the proposed class is consistent with decisions by federal courts in cases alleging similar discrimination. Accordingly, this Court should grant the Plaintiff’s Motion for Class Certification.
FACTUAL BACKGROUND The State of Illinois has opted to take advantage of Medicaid’s waiver programs in order to provide home and community-based services to persons with disabilities who would otherwise be cared for in hospitals and other institutions. The “waiver” authority permits the Secretary of Health and Human Services to waive certain Medicaid requirements in order for the State to offer the services. See 42 U.S.C. §1396m(b)-(h); 42 C.F.R. §430.25(d). 4 Defendant has restricted eligibility for the MF/TD waiver program for persons under the age of 21. 5 See Ill. Adm. Code tit. 89, § 120.530. These individuals would otherwise require a level of care required by a skilled nursing facility or a hospital. Id. After reaching the age of 21, most individuals transition to the HSP waiver program, which provides in-home care for adults with severe disabilities who would otherwise have to be cared for in institutions. See Ill. Admin. Code tit. 89, § 676.10. The HSP program has significant funding caps, and as a result, individuals often
because the disabilities which qualify them for enrollment in the MF/TD waiver similarly make them eligible for protection under the ADA and the Rehabilitation Act.
4 States can submit requests for approval to the Centers for Medicare and Medicaid Services (“CMS”) to alter the terms of a particular waiver application at any time. See 42 C.F.R. § 441.355. Such requests are regularly granted by CMS. See Knowles v. Horn, 2010 WL 517591 (N.D. Tex., Feb. 10, 2010) (citing to Grooms v. Maram, 563 F. Supp. 2d 840, 857 (N.D. Ill., 2008) (“[T]he federal government has not denied a single waiver application in the last ten years. Defendant here presents no basis to believe the federal government would deny the State’s application for an amendment in this case and the court will not concoct one.”)
5 The Illinois Medicaid plan includes nine separate waiver programs. See Illinois Department of Healthcare and Family Services, “Home and Community Based Services Waiver Programs,” http://www.hfs.illinois.gov/hcbswaivers/.
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experience a significant reduction of services, which places them at risk of institutionalization. Plaintiff William R. Hampe has severe and profound disabilities and extensive medical
needs. (Compl. ¶¶ 1, 18a-c). Prior to this lawsuit, he received funding for approximately 16 hours a day (112 hours per week) of skilled nursing care in his home at a cost of approximately $18,000 per month. (Compl. ¶ 19). He requires a skilled nursing level of care and his treating physician states that the alternative to medical home care is inpatient hospitalization, at a rate of approximately $55,000 per month. (Id. at ¶¶ 18e, 19).
Plaintiff Hampe aged out of the MF/TD waiver program on his 21st birthday, June 18, 2010. In April 2010, defendant notified him that he would transition to the HSP program,6 under which he was entitled to an “exceptional care rate” of only $9,429 per month for medical care in his home. (Id. at ¶ 42). This amount is approximately 50 percent less than the amount he received under the MF/TD waiver program and is insufficient to meet the costs of the skilled nursing services he requires to remain in the community. (Id. at ¶ 43). Consequently, Plaintiff Hampe faces the prospect of entering a hospital or remaining in the community without sufficient medical services, placing him at risk of death. (Id. at ¶ 20). Defendant agreed to maintain the level of services Plaintiff received prior to his 21st birthday until further order of this Court. (Agreed Order, May 28, 2010 [Docket No. 11]).
Plaintiff Hampe resides with his mother and guardian, Jill Hampe, in Wheaton, Illinois. (Compl. at ¶ 18f). The proposed reduction will force him into an institutional setting, isolating
6 The HSP program provides services to assist individuals with severe disabilities in remaining in their homes instead of an institutional setting. See http://www.dhs.state.il.us/page.aspx?item=36737. The HSP is authorized by the Persons with Disabilities waiver program. See Radaszewski v. Maram, 2008 U.S. Dist. LEXIS 24923, at *7 (N.D. Ill. 2008) (overturned on other grounds).
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him from the community and his mother. (Id. at ¶¶ 45, 49). The cost of his care in an institution,
at a rate of $55,000 per month, would be substantially greater than the cost of allowing him to
remain in the community, at approximately $18,000 per month. (Id. at ¶¶ 19, 22).
INTEREST OF THE UNITED STATES
This case involves the proper interpretation and application of the integration mandate of
title II of the ADA and the Rehabilitation Act, which the Department of Justice has the authority
to enforce and for which the Department issues implementing regulations. See 42 U.S.C. § 2133
and § 12134. The United States has a strong commitment to realizing the goals of community integration as set forth in Olmstead.7 Ending the unnecessary segregation of individuals with
disabilities is one of the key tenets of the ADA. In enacting the ADA in 1990, 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(a)(2). As directed
by Congress, 42 U.S.C. § 12134, the Attorney General issued regulations implementing title II, which are based on regulations issued under section 504 of the Rehabilitation Act.8 See 42
7 See “President Obama Commemorates Anniversary of Olmstead and Announces New Initiatives to Assist Americans with Disabilities,” June 22, 2009, Office of the Press Secretary, available at http://www.whitehouse.gov/the_press_office/President-Obama-CommemoratesAnniversary-of-Olmstead-and-Announces-New-Initiatives-to-Assist-Americans-withDisabilities/).
8 Title II, which prohibits discrimination by public entities, was modeled closely on Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits discrimination on the basis of disability in federally conducted programs and in all of the operations of public entities that receive federal financial assistance. Title II provides that “[t]he remedies, procedures, and rights” set forth under Section 504 shall be available to any person alleging discrimination in violation of Title II. 42 U.S.C. § 12133; see also 42 U.S.C. § 12201(a) (ADA must not be construed more narrowly than Rehabilitation Act). The ADA directs the Attorney General to promulgate regulations to implement Title II and requires those regulations to be
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U.S.C. § 12134(a); 28 C.F.R. § 35.190(a); Executive Order 12250, 45 Fed. Reg. 72995 (1980),
reprinted in 42 U.S.C. § 2000d-1. The title II regulations, 28 C.F.R. § 35.130(d), require public
entities to “administer services, programs, and activities in the most integrated setting
appropriate to the needs of qualified individuals with disabilities.” The preamble discussion of
the “integration regulation” explains that “the most integrated setting” is one that “enables
individuals with disabilities to interact with nondisabled persons to the fullest extent possible.”
28 C.F.R. § 35.130(d).
Eleven years ago, the Supreme Court applied these authorities and held that title II
prohibits the unjustified segregation of individuals with disabilities. Olmstead, 527 U.S. at 586.
Olmstead held that public entities are required to provide community-based services for persons
with disabilities who would otherwise be entitled to institutional services when a) treatment
professionals reasonably determine it is appropriate; b) the affected persons do not oppose such
treatment; and c) the placement can be reasonably accommodated, taking into account the
resources available to the entity and the needs of others who are receiving disability services
from the entity. Olmstead, 527 U.S. at 607.
A public entity’s duty to provide integrated (i.e., community-based) services, however, is
not absolute. A public entity is required only to make reasonable modifications that do not
consistent with preexisting federal regulations that coordinated federal agencies’ application of Section 504 to recipients of federal financial assistance and interpreted certain aspects of Section 504 as applied to the federal government itself. 42 U.S.C. § 12134(a)-(b). Title II thus extended Section 504’s pre-existing prohibition against disability-based discrimination in programs and activities (including state and local programs and activities) receiving federal financial assistance or conducted by the federal government itself to all operations of state and local governments, whether or not they receive federal assistance. The ADA and the Rehabilitation Act are generally construed to impose the same requirements. See Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599, 607 (7th Cir. 2004); Washington v. Indiana High School Athletic Ass’n, Inc., 181 F.3d 840, 845 n.2 (7th Cir. 1999).
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“fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7) (2009). Thus, a public entity violates title II if it segregates individuals in institutions when those individuals could be served in the community through reasonable modifications to its program, unless it is able to demonstrate that doing so would result in a “fundamental alteration” of its program. Olmstead, 527 U.S. at 595-596.
ARGUMENT Defendant’s policy of providing inadequate home and community-based services for the proposed class solely because they reach the age of 21 places them at risk of institutionalization and therefore violates the integration mandate of title II. Courts in this district, as well as the Illinois Court of Appeals, have recognized that defendant’s “age-out” policy under the MF/TD waiver program is problematic under title II. See Radaszewski v. Maram, 2008 U.S. Dist. LEXIS 24923 (N.D. Ill. 2008) (J. Darrah) (State of Illinois violates title II of the ADA by failing to fully fund the cost of private-duty nursing care that plaintiff, who had aged out of the MF/TD waiver program, required in order to remain in the community); Grooms v. Maram, 563 F. Supp. 2d 840 (N.D. Ill. 2008) (J. Pallmeyer); Sidell v. Maram, No. 05-C-1001 (C.D. Ill. 2009) (ordering relief for plaintiff who aged out of MF/TD waiver program because the “State of Illinois may modify the adult waiver program to accommodate [plaintiff]’s needs and provide services”); Jones v. Maram, 867 N.E.2d 563 (Ill. App. Ct. 2007) (affirming lower court granting of preliminary injunction for plaintiff who aged out of MF/TD waiver program and was at-risk of institutionalization); Fisher v. Maram, No. 06-C-4405 (N.D. Ill.) (J. Guzman) (enjoining defendant from reducing services for plaintiff who aged out of MF/TD waiver program).
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I. Plaintiffs Meet the Legal Standard for Class Certification Under Rule 23. Certification of the proposed class is proper. 9 To proceed as a class action, a class must
first satisfy the threshold requirements under Rule 23(a): (1) the class is so numerous that joinder
of all members is impracticable; (2) there are common questions of fact and law; (3) the claims
or defenses of the representative parties are typical of the claims or defenses of the class; and (4)
the representative parties will fairly and adequately protect the interests of the class. Fed R. Civ.
P. 23(a). Harper v. Sheriff of Cook County, 581 F.3d 511, 513 (7th Cir. 2009); Rosario v.
Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992). Second, the moving party must show that the proposed class falls within at least one of the three categories set forth in Rule 23(b).10
a. Plaintiffs Meet the Numerosity Requirement.
Rule 23(a)(1) requires that the proposed class be “so numerous that joinder of all persons
is impracticable.” Plaintiffs need not specify the exact number of class members. See Marcial
v. Coronet Ins. Co., 880 F.2d 954 (7th Cir. 1989). The Seventh Circuit has held that joinder was
impracticable where a class was comprised of 40 individuals. See, e.g., Swanson v. Am.
Consumer Indus., 415 F.2d 1326, 1333 (7th Cir. 1969); see also Armes v. Shanta Enterprise,
Inc., 2009 WL 2020781, at *2 (N.D.Ill. 2009). As of September 1, 2009, 504 children were
9 While the Court need not accept as true all facts alleged in Plaintiff’s complaint at this stage of litigation, the decision to certify a class 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. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974); Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 677 (7th Cir. 2001); Williams, 2006 WL 3332844, at * 3. The Court’s determination whether class certification is appropriate therefore does not involve an inquiry into the merits. Young v. County of Cook, 2007 WL 1238920, at *5 (N.D. Ill. 2007).
10 Plaintiffs seek certification under Rule 23(b)(2), which permits 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.” See Fed. R. Civ. Pro. 23(b)(2); Mot. Class Certif. ¶1.
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receiving services in the MF/TD waiver program. See Pl. Ex. A at 3. From July 1, 2007, through June 30, 2008, 606 children received services under the MF/TD waiver. Id. Thirtyseven individuals aged out of waiver eligibility for the period from July 2007 to December 2009. Id. at 9. Based solely on the number of individuals who will likely age out of the waiver in the next 24 months, the proposed class approximates at least 40 individuals. The class will include an even larger number given the fact that hundreds of individuals are currently enrolled in the MF/TD waiver. The numerosity requirement is therefore satisfied.
a. Plaintiffs Meet the Commonality Requirement. The commonality requirement does not necessitate “every class member’s factual or legal situation to be a carbon copy” of those of the named plaintiffs, and thus the “low commonality hurdle is easily surmounted.” Wesley v. Gen. Motors Acceptance Corp., 1992 WL 57948, at *3 (N.D. Ill. 1992); see also Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 155 (1982). A common nucleus of operative fact satisfies the commonality requirement of Rule 23(a)(2). See Rosario v. Livaditis, 963 F.2d at 1018. Common nuclei of fact exist where, as in this case, the defendant has engaged in standardized conduct towards members of the proposed class. See Chandler v. Southwest Jeep-Eagle, Inc., 162 F.R.D. 302, 308 (N.D. Ill. 1995) (citing cases). Defendant’s conduct in reducing services for all participants of the MF/TD waiver program has been uniform with respect to the plaintiff class and constitutes a “common nucleus of operative fact.” Rosario, 963 F.2d at 1018. Defendant’s policy applies regardless of individual medical need and results solely because an individual has reached the age of 21. Memo Class Cert. at 7. Differences in the individualized facts regarding class members’ specific medical needs and the community supports they require do not bar class certification. Rolland v.
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Patrick, 2008 WL 4104488, *4 (D. Mass.) (“any identified factual differences between the named Plaintiffs and some of the class . . . did not undermine commonality and, in particular, did not preclude certification of a class of persons with mental retardation who were challenging Defendants’ practices.”) Such factual differences can be addressed in the remedial phase. Rolland, 1999 WL 34815562, at *5 (D. Mass. 1999) (class certification was appropriate and “individualized determinations of needs and services were more properly left for post-judgment relief”); Marisol A. v. Guiliani, 126 F.3d 372, 375 (2d Cir. 1997) (individual needs did not defeat commonality). Plaintiffs have therefore satisfied the commonality requirement.
b. Plaintiffs Meet the Typicality Requirement. The question of typicality is closely related to the question of commonality. Rosario, 963 F.2d at 1018. A “plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.” De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983) (citations and internal quotation omitted). This requirement “primarily directs the district court to focus on whether the named representatives’ claims have the same essential characteristics as the claims of the class at large.” Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596-7 (7th Cir. 1993).11 Plaintiff Hampe’s claim has the “same essential characteristics” as the proposed class, namely, that defendant violates the integration mandate through its policy of reducing services when an individual reaches the age of 21. Further, the
11 This requirement is intended to ensure that class representatives will represent the best interests of the class members who take a less active role. It overlaps substantially with the requirement that class representatives be members of the class. Robinson v. Sheriff of Cook Co., 167 F.3d 1155, 1157 (7th Cir. 1999).
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remedy that plaintiffs seek is a declaratory judgment requiring the State to maintain services in the community. (Compl. at 16-17). The typicality requirement is therefore satisfied.
c. Plaintiff Hampe is an Adequate Representative of the Class. Rule 23(a)(4) requires that the named plaintiff “fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). Courts generally make two inquiries here. First, plaintiff must not have claims antagonistic to or in conflict with those of other class members and must have sufficient interest in the case’s outcome to be a vigorous advocate. Second, plaintiff's counsel must be qualified, experienced, and able to conduct the proposed litigation. See Rosario, 963 F.2d at 1018. Plaintiff Hampe is an adequate representative of the class. His claims derive from the same violation of federal law as the other proposed class members. His interest in obtaining injunctive relief to prevent defendant from reducing medical services coincides with the general interests of the proposed class.12 Thus, adequacy of representation is satisfied.
d. Plaintiffs Meet the Requirements of Rule 23(b)(2). Finally, plaintiffs seek certification as a class under Rule 23(b)(2), which requires that “plaintiffs . . . need merely show that defendants acted on grounds generally applicable to the class for which they seek declaratory and injunctive relief.” Williams, 2006 WL 3332844, at * 4. Declaratory and injunctive actions that present common questions such as a state policy for treatment of persons who automatically become ineligible for continued Medicaid benefits is suitable for class certification pursuant to Rule 23(b)(2). See Jefferson v. Ingersoll Int’l Inc., 195
12 Plaintiff’s counsel also satisfies the requirements of Rule 23(g). Robert Farley is an experienced advocate who previously has represented clients in both title II cases and class actions. See Bruggeman v. Blagojevich, No. 00-C-5392 (N.D. Ill.) (Title II case); Bullock v. Sheahan, No. 04-C-1051 (N.D. Ill.) (class counsel); Gary v. Sheahan, No. 96-C-7294 (N.D. Ill.) (class counsel).
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F.3d 894, 897 (7th Cir. 1999.) Plaintiffs do not seek damages, so the concern for individualized
damage awards that often drives the distinction between certifying a Rule 23(b)(2) class and a Rule 23(b)(3) class is not present. Lemon v. IUOE, Local 139, 216 F.3d 577 (7th Cir. 1999).13
Plaintiffs allege that defendant’s policies and practices discriminate against them by denying
class members the resources necessary to reside in the community. Defendant’s conduct is
generally applicable and therefore satisfies the requirement under Rule 23(b)(2).
II. Title II Integration Claims Often Require Systemic Reform and Class Actions are Appropriate Mechanisms for Adjudicating Such Claims.
The class action is an appropriate mechanism for achieving relief for violations of title II
in the community integration context. Integration claims typically involve large service systems
that affect hundreds or thousands of individuals who rely on the state for their medical care.
Courts have routinely granted class certification in ADA cases and specifically in Olmstead cases.14 The class action is therefore a useful and necessary tool for addressing such systemic
problems. The alternative — forcing individual plaintiffs, who are by virtue of their membership
in the class, without resources to litigate independently to pursue individual complaints — is an unfair and inefficient use of judicial resources.15
13 Even if the Court were to determine that individual determination of each class member’s claims were important, the Court could bifurcate the case and review the injunctive relief — i.e., changing the state’s policy — under Rule 23(b)(2), and the delivery of appropriate remedy under Rule 23(b)(3) on a case-by-case basis. See Jefferson, 195 F.3d at 898.
14 See, e.g., Ball et al v. Rodgers, 492 F.3d 1094 (9th Cir. 2007); Frederick L. v. Dept. of Public Welfare, 364 F.3d 487 (3d Cir. 2004); State of Connecticut Office of Protection and Advocacy v. Connecticut, 2010 WL 1416146 (D. Conn. 2010); Messier v. Southbury Training School, 562 F. Supp. 2d 294 (D. Conn. 2008); Rolland v. Patrick, 2008 WL 4104488 (D. Mass. Aug. 19, 2008); Colbert v. Blagojevich, No. 07-C-4737 (N.D. Ill. 2008); Williams v. Quinn, No. 05-C-4673 (N.D. Ill. Nov. 11, 2006).
15 This is a case in which the declaratory judgment as to the entire class may lead to negotiations on each class member’s actual remedy, but that does not change the determination
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For instance, in Williams, Judge Hart certified a class of Illinois residents alleging title II violations 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 setting. Williams, 2006 WL 3332844, at *5. The Court determined that class certification was appropriate because, as in this case, “defendant’s conduct toward the class largely defines the class.” Id. at *12. In Colbert, Judge Lefkow certified a 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.” Colbert, 2008 WL 4442597, at *10.
Defendant’s administration of its waiver programs constitutes an extensive benefits system that serves thousands of Illinois residents. The MF/TD waiver program sets the maximum capacity of individuals at 700 persons,16 while the PWD waiver program has a capacity at 27,870 persons.17 Together, these programs constitute a sizeable amount of the state’s community-based services. Plaintiffs’ claims will require system-wide change in policies to ensure that defendant’s Medicaid program allows individuals to live in the most integrated setting appropriate to their needs.
Moreover, defendant’s refusal to modify the policy and practice despite the fact that individual plaintiffs have successfully challenged this very policy in five separate lawsuits underscores the need to address this problem on a systemic, class-wide basis. See Radaszewski,
that this is suitable for a decision under Rule 23(b)(2). Berger v. Xerox Ret. Income Plan, 338 F.3d 755, 763-764 (7th Cir. 2003) (declaration of liability is the determining factor to individual award of benefits).
16 See http://www.hfs.illinois.gov/hcbswaivers/tdmfc.html. 17 See http://www.hfs.illinois.gov/hcbswaivers/disabilities.html.
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2008 U.S. Dist. LEXIS 24923;18 Grooms, 563 F. Supp. 2d 840; Sidell, No. 05-C-1001; Jones, 867 N.E.2d 563; Fisher, No. 06-C-4405. Each of these lawsuits determined that defendant’s policy of reducing medical funding at age 21 violates the ADA and the Rehabilitation Act. Certification of the proposed class advances the Court’s interest in judicial economy because it allows simultaneous and efficient adjudication of the issues common to the class. See Thorogood v. Sears, Roebuck and Co., 547 F.3d 742, 744 (7th Cir. 2008) (“The class action is an ingenious device for economizing on the expense of litigation.”) If the class is not certified, proposed class members will be required to file individual lawsuits. Due to their limited financial resources and extensive medical issues, class members are unlikely to initiate individual actions.
Contrary to defendant’s assertion that the court must first conduct individualized hearings as to whether a plaintiff is “qualified” or “otherwise qualified,” (Def. Resp. Class Cert. at 511), the issue for declaratory judgment is common to all members of the class — whether the state’s polices violate the integration mandate of Olmstead and title II of the ADA. Any need for individualized determinations of benefits is a mechanical application of correct policies and procedures. See Allison v. Citgo Petroleum Corp., 151 F.3d 402, 414 (5th Cir. 1998); Jefferson, 195 F.3d at 898; Berger, 338 F.3d at 763. The central question in this litigation — whether the defendant’s administration of its waiver programs is consistent with the Olmstead integration mandate — can be answered without regard to individual class members’ diagnoses or
circumstance. Indeed, it is the state’s systemic failure to make individualized determinations
18 The U.S. Court of Appeals for the Seventh Circuit reversed the district court’s entry of judgment on the pleadings for the defendant after a thorough analysis of the Olmstead integration mandate, the waiver programs and the state’s claimed defenses. Radaszweski v. Maram, 383 F.3d 599 (7th Cir 2004). The court determined that “the integration mandate may well require the State to make reasonable modifications to the form of existing services in order to adopt them to community-integrated settings.” Id. at 611.
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based on a person’s need that has led to this litigation.

Conclusion

For the above stated reasons, the Court should grant Plaintiff’s Motion for Class

Certification. With the Court’s permission, counsel for the United States will be present at any

upcoming hearings.

Dated: July 16, 2010

Respectfully submitted,

ERIC H. HOLDER, JR. Attorney General of the United States

PATRICK J. FITZGERALD United States Attorney Northern District of Illinois

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division

_/s/ Patrick Johnson__________ PATRICK JOHNSON Civil Rights Division Assistant United States Attorney Chicago, Illinois 60604 Patrick.Johnson@usdoj.gov

SAMUEL R. BAGENSTOS Deputy Assistant Attorney General
/s/ Regan Rush JOHN L. WODATCH, Chief PHILIP L. BREEN, Special Legal Counsel RENEE M. WOHLENHAUS, Deputy Chief REGAN RUSH, Trial Attorney Disability Rights Section, Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA Washington, D.C. 20530 Telephone: (202) 616-2726 Facsimile: (202) 307-1197 Regan.Rush@usdoj.gov

Counsel for United States

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CERTIFICATE OF SERVICE Undersigned counsel hereby certifies that on July 16, 2010, she electronically filed the foregoing Statement of Interest of the United States with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the counsel enrolled in the CM/ECF system.
/s/ Regan Rush______

 
 Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 1 of 29 PageID #:714

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

WILLIAM R. HAMPE, by and through his mother I guardian Jill Hampe, RICHARD L. WINFREY, III, and ADAM CALE, individually and on behalf of a class,
Plaintiffs,
vs.
JULIE HAMOS, in her official capacity as Director of the Illinois Department of Healthcare and Family Services,
Defendant.

)

)

)

)

)

)

No.

10-3121

)

) Judge: William J. Hibbler

)

) Magistrate: Arlander Keys

)

)

)

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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

files the following second amended complaint against the Defendant as follows:

I. INTRODUCTION

1. The Plaintiffs, William R. Hampe (William), Richard L. Winfrey III (Richard) and

Adam Cale (Adam) are medically fragile disabled persons who currently receives funding from

the Defendant for approximately 16 hours a day skilled nursing level of care at their home at a

cost of approximately $18,000 per month, so that they do not have to be institutionalized or

hospitalized for their entire life at a rate of approximately $55,000 per month. William's,

Richard's and Adam's funding from the Defendant comes from the State of Illinois "Medicaid

Home and Community-Based Services (HCBS) Waiver for Children that are Medically Fragile,

Technology Dependent" program (MF/TD) and Medicaid.

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Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 2 of 29 PageID #:715
2. William's, Richard's and Adam's enrollment in the MF/TD program is only available to persons under the age of21 and William will turn 21 on June 18, 2010; Richard will turn 21 on August 16, 2010; and Adam will turn 21 on August 29,2010. When William or Richard or Adam or any disabled person turns 21 in the MF/TD program, the Defendant's policy and practice is to reduce the existing medical funding by approximately 50% based solely on the fact that the person is now 21. The reduction in funding is not due to a change in William's or Richard's or Adam's medical needs but on the fact that William's, Richard's and Adam's funding at age 21 comes from a different State program, which has significant caps on funding. The reduction in funding will either result in William, Richard and Adam becoming institutionalized (hospitalized) or if they remain in their family home without sufficient skilled nursing care, then they face a strong possibility of imminent death.
3. Prior to the filing of this lawsuit by William, Richard and Adam, the Defendant has been successfully challenged by individual plaintiffs in 5 separate lawsuits over its practice and policy of reducing medical funding which results in a reduction of medical services when the disabled person turns 21 years of age. 1 Despite the fact that the Defendant has not prevailed to provide reduce medical funding in these 5 separate federal and state lawsuits brought by similarly situated persons like the Plaintiff who were turning 21 and aging out of the MF/TO program, the Defendant continues the same practice to date to reduce medical funding at age 21 as evidence by William's, Richard's and Adam's case. Accordingly, William, Richard and Adam brings this
1 See Radaszewski v. Maram, 2008 U.S. Dist. LEXIS 24923 (N.D. Ill.); Grooms v. Maram, 563 F.Supp.2d 840 (N.D.Ill. 2008); Jones v. Maram, 373 Ill.App.3d 184, 867 N.E.2d 563 (Tct Dist. 2007); Sidell v. Maram, 05 cv 1001 (C.D. Ill.) and Fisher v. Maram, 06 C 4405 (N.D. Ill.).
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Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 3 of 29 PageID #:716
lawsuit, individually and on behalf of a class, seeking injunctive relief to prevent the Defendant from reducing the level of medical care currently provided to William, Richard and Adam and the putative class, which are necessary to prevent institutionalization (hospitilization), which is a more costly and a more restrictive setting than the current home placement.
4. This class action lawsuit is necessary in order to stop the Defendant from continuing to systematically violate the Americans with Disabilities Act and the Rehabilitation Act for persons aging out of the "MF/TD" program. (See prior successful litigation by plaintiffs against the State of Illinois over the "MFlTD" program where the State was required to continue to fund the same level of medical services which existed prior to the age of 21 years: Radaszewski v. Maram, 2008 U.S. Dist. LEXIS 24923 (N.D. Ill.)(March 26, 2008); Grooms v. Maram, 563 F.Supp.2d 840 (N.D.Ill. 2008); Jones v. Maram, 373 Ill.App.3d 184 (3rd Dist. 2007); Sidell v. Maram, 05 cv 1001 (C.D. Ill.)(January 14, 2009); and Fisher v. Maram, 06 C 4405 (N.D. Ill.)(January 8, 2009)).
II. JURISDICTION & VENUE 5. This is an action for declaratory and injunctive relieve to enforce the rights of the Plaintiff and the class he seeks to represent under the Americans with Disabilities Act, 42 U.S.C. Sec. 12132 and Section 504 of the Rehabilitation Act, 29 U.S.C. Sec. 794(a). 6. This Court has jurisdiction over Plaintiffs federal law claims pursuant to 28 U.S.C. Sections 1331 and 1343. Plaintiffs claim for declaratory and injunctive relief are authorized under 28 U.S.C. Sec. 2201-02 and 42 U.S.C. Sec. 1983. 7. Venue is proper in the Northern District of Illinois under 28 U.S.C. Sec. 1391(b).
III. PARTIES
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Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 4 of 29 PageID #:717
8(a). The Plaintiff, William R. Hampe (William) will be 21 years old on June 18,2010, is medically fragile and currently receives funding from the Defendant for approximately 16 hours a day skilled nursing level of care at his home (112 hours per week) plus he is eligible for 336 respite skilled nursing hours per year. These nursing services are either provided by a registered nurse (RN) or a licensed practical nurse (LPN).
8(b). William is severely and profoundly developmentally disabled. He is blind, nonverbal and wheelchair bound. William is completely dependent on someone for all of his care.
8(c). William is diagnosed with reactive airway disease, cerebral palsy, intractable epilepsy, developmental delay and microcephaly. He remains on BiPap (a ventilatory support system) and continues to require frequent suctioning of his tracheostomy. William gets all his nutrition via a j-tube.
8(d). A skilled nursing level of care is required for William. 8(e). The alternative to William's skilled nursing care at his residence is inpatient hospitalization. Dr. Keith Veselik, William's treating physician has stated that William's alternative to medical home care is admission to a hospital. 8(f). Willaim resides with his mother I guardian, Jill Hampe in Wheaton, Illinois. 9(a). The Plaintiff, Richard L. Winfrey, III (Richard) will be 21 years old on August 16, 2010, is medically fragile and currently receives funding from the Defendant for approximately 16 hours a day skilled nursing level of care at his home (126 hours per week) plus he is eligible for 336 respite skilled nursing hours per year. These nursing services are either provided by a registered nurse (RN) or a licensed practical nurse (LPN). 9(b). Richard is severely disabled. He has quadriplegia. Richard is completely
4

Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 5 of 29 PageID #:718
dependent on others for all activities of daily living. Richard has a tracheostomy and an implanted phrenic pacemaker.
9(c). Richard is continuing his education at Waubaunsee College. When he attends class he has technology support and a nurse accompanies him to class.
9(d). A skilled nursing level of care is required for Richard. 9(e). The alternative to Richard's skilled nursing care at his residence is inpatient hospitalization. Dr. Gregory Milania has stated that Richard's alternative to medical home care is admission to a hospital. 9(f). Richard resides with his mother, father and brother in Aurora, Illinois. 10(a). The Plaintiff, Adam Cale (Adam) will be 21 years old on August 29,2010, is medically fragile and currently receives funding from the Defendant for approximately 16 hours a day skilled nursing level of care at his home (116.5 hours per week) plus he is eligible for 336 respite skilled nursing hours per year. These nursing services are either provided by a registered nurse (RN) or a licensed practical nurse (LPN). Adam also receives funding for 51.5 hours of personal assistant services per week. 1O(b). Adam is severely disabled and medically fragile. He has quadriplegia secondary to a cervical cord injury during infancy. Due to his quadriplegia, his respiratory system has been compromised and he remains on C-pap at night. He has multiple medical factors that complicate his condition, thus necessitating increased needs in assisting of his care. He has a neurogenic bladder, tracheostomy and feeding tube that requires more care than he is able to provide. He is wheelchair dependent. His disability is permanent. Adam is completely dependent on someone for all his care.
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Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 6 of 29 PageID #:719
10(c). A skilled nursing level of care is required for Adam. 1O(d). The alternative to Adam's skilled nursing level of care at his residence or dormitory is inpatient hospitalization. Dr. David L. Miller, Adam's treating physician has stated that Adam's alternative to medical home care is admission to a hospital. 10(e). Adam is enrolled at Western Illinois University and will be a senior when school commences in August, 2010 and is a double major and resides in the dormitory and currently receives skilled and unskilled nursing services so he can remain in the community. 11. The Defendant, Julie Hamos, is the Director ofthe Illinois Department ofHealthcare and Family Services (HFS) and is being sued in her official capacity.
IV. CLASS ACTION ALLEGATIONS 12. Plaintiffs bring this action on behalf of themselves and as a class action pursuant to Rule 23(b)(2) ofthe Federal Rules of Civil Procedure. 13. The Class consists of the following:
All persons who are enrolled or will be enrolled or were enrolled in the State of Illinois Medically Fragile, Technology Dependent Medicaid Waiver Program (MF/TD) or Medicaid and when they obtain the age of21 years are subjected to reduce Medicaid funding which reduces the medical level of care which they had been receiving prior to obtaining 21 years. 14. The Class is so numerous that joinder of all persons is impracticable. The Illinois Department of Healthcare and Family Services "Report of Medicaid Services for Persons who are Medically Fragile, Technology Dependent" dated December, 2009 stated that as of September 1, 2009, 504 children were receiving services in the MFlTD program on that specific date. The report further states that from July 1, 2007 through June 30, 2008, 606 children had
6

Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 7 of 29 PageID #:720
received services in the MF/TD program and for the period of July 1, 2007 through December, 2009, 37 individuals aged out ofthe waiver. In Jones v. Maram, 373 Ill.App.3d 184 (3'd Dist. 2007), Barbara Ginder from the State of Illinois stated in an affidavit "there were 34 active cases of 18 to 20-year-old individuals, 19 of whom were ventilator dependent" in the MFTDC program. !d., at 192. "Ginder stated these individuals are likely to transition from MF/TD to HSP [Home Services Program] (ifthey select) at age 21." !d. The class members have limited financial resources and are unlikely to institute individual actions.
15. The claims of the class members raise common questions of law and fact. These include:
(a) Whether the Defendant violated the ADA and Rehabilitation Act by reducing the level of funding for persons enrolled in the Illinois Medically Fragile, Technology Dependent Medicaid Waiver Program which resulted in a reduction of medical services.
(b) Whether the ADA and Rehabilitation Act permits the Defendant to reduce the level of funding which results in a reduction of medical services for disabled persons after the age of 21, even though there has been no change in their medical needs.
(c) Whether a fundamental alteration of the Illinois disability programs would occur if the Defendant provided funding to continue the same level of services for the Plaintiff and the putative class when they turn the age of 21 years.
(d) Whether compelling an increase in the "exceptional care rate" for persons exiting the MF/TD program into the Illinois Home Services Program is unreasonable under the ADA and Rehabilitation Act.
(e) Whether the Illinois disability programs can reasonable accommodate a
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Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 8 of 29 PageID #:721
modification to their existing programs to allow the Plaintiff and putative class to continue to receive the same level of care in the community when they turn 21 years of age.
The common questions of fact and law predominate over questions affecting only individual class members.
16. The Plaintiffs claims are typical ofthe class members' claims. 17. The Plaintiffs are an adequate representative of the class because they suffer from deprivations identical to those of the class members and has been denied the same federal rights that they seek to enforce on behalf of the other class members. The Plaintiffs will fairly and adequately represent the interests ofthe other class members, many of whom are unable to pursue claims on their own behalf as the result of their disabilities. Plaintiffs interest in obtaining injunctive relief for the violations of constitutional rights and privileges are consistent with and not antagonistic to those of any person within the class. Plaintiffs counsel is qualified, experienced and able to conduct the proposed litigation. 18. A class action is superior to other available methods for the fair and efficient adjudication of the controversy in that:
(i) A multiplicity of suits with consequent burden on the courts and defendants should be avoided.
(ii) It would be virtually impossible for all class members to intervene as partiesplaintiffs in this action.
19. The Defendant has acted or refused to act on grounds applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole.
V. STATEMENT OF FACTS A. Plaintiff William R. Hampe
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Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 9 of 29 PageID #:722
20(a). The Plaintiff, William R. Hampe (William) will be 21 years old on June 18, 2010, is medically fragile and currently receives funding from the Defendant for approximately 16 hours a day skilled nursing level of care at his home (112 hours per week) plus he is eligible for 336 respite skilled nursing hours per year. These nursing services are either provided by a registered nurse (RN) or a licensed practical nurse (LPN).
20(b). William is severely and profoundly developmentally disabled. He is blind, nonverbal and wheelchair bound. William is completely dependent on someone for all his care.
20(c). William is medically fragile and has a complex medical history including diagnoses reactive airway disease, cerebral palsy, intractable epilepsy, developmental delay and microcephaly. He remains on BiPap (a ventilatory support system) and continues to require frequent suctioning ofhis tracheostomy. William gets all his nutrition via aj-tube.
20(d). A skilled nursing level of care is required for William. 20(e). The alternative to William's skilled nursing care at his residence is inpatient hospitalization. Dr. Keith Veselik, William's treating physician has stated that William's alternative to medical home care is admission to a hospital. 20(f). William resides with his mother I guardian, Jill Hampe in Wheaton, Illinois. 21. William's current funding from the Defendant comes from the "Medicaid Home and Community-Based Services (HCBS) Waiver for Children that are Medically Fragile, Technology Dependent." (MF/TD) and Medicaid. William receives funding from the Defendant for skilled nursing level of care at his home at a cost of approximately $18,000 per month, so that he does not have to be institutionalized or hospitalized for his entire life at a rate of approximately $55,000 per month.
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Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 10 of 29 PageID #:723
22. William's enrollment in the MF/TD program is only available to persons under the age of21 and William will turn 21 on June 18,2010. When William or any disabled person turns 21 in the MF/TD program, the Defendant's policy and practice is to reduce continuing medical funding by approximately 50% based solely on the fact that the person is now 21. The reduction in funding is not due to a change in William's medical needs but on the fact that William's funding at age 21 comes from a different State program, which has significant caps on funding. The reduction in funding will either result in William becoming institutionalized (hospitalized) or if he remains in his family home without skilled nursing care, then he faces a strong possibility of imminent death.
23. William has been informed by the Defendant that when he turns 21 years of age on June 18, 2010, he will be subjected to reduce funding at approximately 50% of his cun-ent rate and that William will be unable to maintain the same level of intensive skilled nursing care which he needs. The State of Illinois has informed William through his mother, that once William turns 21, he will only be entitled to receive an "exceptional care rate" of $9,426 per month in funding to address his medical needs ifhe wishes to remain living in the family home. This monthly rate of $9,426 is completely inadequate to provide William the current skilled nursing level of care in his home which he requires due to his medical condition. Accepting the rate of $9,426 and remaining in his home would likely result in the death of William. This State policy of paying only an 'exceptional care rate' of $9,426 per month is in conflict with 5 recent Federal and State court cases, where the Defendant was not permitted to reduce funding when a person ages out of the MFTDC program. (See cases listed in paragraph 4 above)
24. If William was unable to receive the current level of skilled nursing care in his home,
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Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 11 of 29 PageID #:724
then he would be forced to be institutionalized and obtain medical care in a hospital setting at a rate of approximately $55,000 per month, which costs more than his current level of funding in the family home.
25. William is requesting injunctive relief to require the Defendant to provide funding to maintain the current level of skilled nursing care which he receives in order that he may remain in the community and not be institutionalized or hospitalized for his entire life. The actions of the Defendant constitute unlawful discrimination under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12132, and Section 504 ofthe Rehabilitation Act, 29 U.S.C. Sec. 794(a).
26. William is an individual with a disability. 27. William is a recipient ofMedical Assistance, commonly known as Medicaid. B. Plaintiff Richard L. Winfrey, III 28(a). The Plaintiff, Richard L. Winfrey, III (Richard) will be 21 years old on August 16, 2010, is medically fragile and currently receives funding from the Defendant for approximately 16 hours a day skilled nursing level of care at his home (126 hours per week) plus he is eligible for 336 respite skilled nursing hours per year. These nursing services are either provided by a registered nurse (RN) or a licensed practical nurse (LPN). 28(b). Richard is severely disabled. He has quadriplegia. Richard is completely dependent on others for all activities of daily living. Richard has a tracheostomy and an implanted phrenic pacemaker. 28(c). Richard is continuing his education at Waubaunsee College. When he attends class he has technology support and a nurse accompanies him to class.
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Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 12 of 29 PageID #:725
28(d). A skilled nursing level of care is required for Richard. 28(e). The alternative to Richard's skilled nursing care at his residence is inpatient hospitalization. Dr. Gregory Milania has stated that Richard's alternative to medical home care is admission to a hospital. 28(f). Richard resides with his mother, father and brother in Aurora, Illinois. 29. Richard's current funding from the Defendant comes from the "Medicaid Home and Community-Based Services (HCBS) Waiver for Children that are Medically Fragile, Technology Dependent." (MF/TD) and Medicaid. Richard receives funding from the Defendant for skilled nursing level of care at his home at a cost of approximately $18,000 per month, so that he does not have to be institutionalized or hospitalized for his entire life at a rate of approximately $55,000 per month. 30. Richard's enrollment in the MF/TD program is only available to persons under the age of21 and Richard will turn 21 on August 16,2010. When Richard or any disabled person turns 21 in the MF/TD program, the Defendant's policy and practice is to reduce continuing medical funding by approximately 50% based solely on the fact that the person is now 21. The reduction in funding is not due to a change in Richard's medical needs but on the fact that Richard's funding at age 21 comes from a different State program, which has significant caps on funding. The reduction in funding will either result in Richard becoming institutionalized (hospitalized) or if he remains in his family home without skilled nursing care, then he faces a strong possibility of imminent death. 3 1. Richard has been informed that when he turns 21 years of age on August 16, 2010, he will be subjected to reduce funding at approximately 50% of his current rate and that William
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Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 13 of 29 PageID #:726
will be unable to maintain the same level of intensive skilled nursing care which he needs. 32. If Richard was unable to receive the current level of skilled nursing care in his home,
then he would be forced to be institutionalized and obtain medical care in a hospital setting at a rate of approximately $55,000 per month, which costs more than his current level of funding in the family home.
33. Richard is requesting injunctive relief to require the Defendant to provide funding to maintain the current level of skilled nursing care which he receives in order that he may remain in the community and not be institutionalized or hospitalized for his entire life. The actions of the Defendant constitute unlawful discrimination under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12132, and Section 504 ofthe Rehabilitation Act, 29 U.S.C. Sec. 794(a).
34. Richard is an individual with a disability. 35. Richard is a recipient of Medical Assistance, commonly known as Medicaid. C. Plaintiff Adam Cale 36(a). The Plaintiff, Adam Cale (Adam) will be 21 years old on August 29,2010, is medically fragile and currently receives funding from the Defendant for approximately 16 hours a day skilled nursing level of care at his home (116,5 hours per week) plus he is eligible for 336 respite skilled nursing hours per year. These nursing services are either provided by a registered nurse (RN) or a licensed practical nurse (LPN). Adam also receives funding for 51.5 hours of personal assistant services per week. 36(b). Adam is severely disabled. He has quadriplegia secondary to a cervical cord injury during infancy. Due to his quadriplegia, his respiratory system has been compromised and
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Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 14 of 29 PageID #:727
he remains on C-pap at night. He has multiple medical factors that complicate his condition, thus necessitating increased needs in assisting of his care. He has a neurogenic bladder, tracheostomy and feeding tube that requires more care than he is able to provide. He is wheelchair dependent. His disability is permanent. Adam is completely dependent on someone for all his care.
36(c). Adam is continuing his education at Western Illinois University and will be a senior when school commences in August, 2010 and is a double major and resides in the dormitory and currently receives skilled and unskilled nursing services so he can remain in the community.
36(d). A skilled nursing level of care is required for Adam. 36(e). The alternative to Adam's skilled nursing level of care at his residence or dormitory is inpatient hospitalization. Dr. David L. Miller, Adam's treating physician has stated that Adam's alternative to medical home care is admission to a hospital. 37. Adam's current funding from the Defendant comes from the "Medicaid Home and Community-Based Services (HCBS) Waiver for Children that are Medically Fragile, Technology Dependent." (MF/TD) and Medicaid. Adam receives funding from the Defendant for skilled nursing level of care at his home at a cost of approximately $18,000 per month, so that he does not have to be institutionalized or hospitalized for his entire life at a rate of approximately $55,000 per month. 38. Adam's enrollment in the MF/TD program is only available to persons under the age of21 and Adam will turn 21 on August 29,2010. When Adam or any disabled person turns 21 in the MF/TD program, the Defendant's policy and practice is to reduce continuing medical
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Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 15 of 29 PageID #:728
funding by approximately 50% based solely on the fact that the person is now 21. The reduction in funding is not due to a change in Adam's medical needs but on the fact that Adam's funding at age 21 comes from a different State program, which has significant caps on funding. The reduction in funding will either result in Adam becoming institutionalized (hospitalized) or if he remains in his family home without skilled nursing care, then he faces a strong possibility of imminent death.
39. Adam has been informed that when he turns 21 years of age on August 29,2010, he will be subjected to reduce funding of approximately 50% of his current rate. Karen Engrstrom, the Supervisor at the Division of Rehabilitation Services in Macomb, Illinois initially told Adam and/ or his mother, that Adam would only receive funding of approximately $3,300 per month. On August 6, 2010, Karen Engrstrom of DRS told Adam and his mother that he would receive funding of $8,000 per month based on an exceptional care rate. Adam will be unable to maintain the same level of intensive skilled nursing care which he needs at the rate of $8,000 per month.
40. If Adam was unable to receive the current level of skilled nursing care in his home, then he would be forced to be institutionalized and obtain medical care in a hospital setting at a rate of approximately $55,000 per month, which costs more than his current level of funding in the family home.
41. Adam is requesting injunctive relief to require the Defendant to provide funding to maintain the current level of skilled nursing care which he receives in order that he may remain in the community and not be institutionalized or hospitalized for his entire life. The actions of the Defendant constitute unlawful discrimination under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12132, and Section 504 ofthe Rehabilitation Act, 29
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Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 16 of 29 PageID #:729
U.S.C. Sec. 794(a). 42. Adam is an individual with a disability. 43. Adam is a recipient of Medical Assistance, commonly known as Medicaid. D. The Federal/State Medical Assistance Program 44. Medical Assistance, commonly known as Medicaid, is a joint federal and stated
funded program enacted to provide necessary medical assistance to needy aged or disabled persons and families with dependent children, whose income and resources are insufficient to meet the cost of care. 42 U.S.C. Sec. 1396. States choosing to participate in the Medicaid program must operate the program in conformity with federal statutory and regulatory requirements. 42 U.S.C. Sec. 1396a.
45. Each State participating in the Medicaid program must submit a Medicaid plan to the Secretary of Health and Human Services (HHS) for approval. 42 U.S.C. Sec. 1396.
46. Each State must designate a single state agency to administer and I or supervise the administration of the state's Medicaid plan. 42 U.S.C. Sec. 1396a(a)(5).
47. In Illinois, the Department ofHealthcare and Family Services (HFS) is the single state agency responsible for administering the Medicaid program.
48. States have the option of covering persons needing home-and-community-based services, if these persons would otherwise require institutional care that would be paid for by Medicaid. 42 U.S.C. Sec. 1396n(c)(l). Under this waiver authority, the Secretary ofHHS may grant waivers of specified requirements like service limitations that are otherwise applicable to the State's Medicaid plan. 42 U.S.C. Sec. 1396n(c)(3). Waiver programs must be cost-neutral in that the average cost of providing care for program participants in the home or community based
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Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 17 of 29 PageID #:730
setting must not exceed the estimated average cost of providing care in the institutional setting they would require. 42 U.S.C. Sec. 1396n(c)(2)(D); 42 C.F.R. Sec. 441.302(e).
49. Illinois has implemented a total of nine (9) federally approved home-and-communitybased care waiver programs in its Medicaid program which were approved by the Secretary of Health & Human Services (HHS). Two of the nine waiver programs are as follows:
-Children that are Technology Dependent I Medically Fragile (MF/TD -Persons with Disabilities (Home Services for Adults with Disabilities) (HSP) E. Medically Fragile I Technology Dependent Program (MF/TD). 50. Under the waiver program for Medically Fragile, Technology Dependent Children, Illinois pays for home-based care for children under age 21 who have exceptional medical needs. The Illinois Department ofHealthcare and Family Services (HFS) administers this waiver program with participation of the University of Illinois' Division of Specialized Services for Children (DSCC) under an agreement with HFS. 51. The Illinois Medicaid Home and Community-Based Services ("HCBS") waiver program, which includes the MF/TD program, allows the State of Illinois to provide services to persons, like the Plaintiffs, in an individual's home or community as long as those services prevent the individual from being institutionalized or hospitalized. 52. The MF/TD waiver for children serves persons under 21 years of age who would require institutional care in a hospital or nursing facility, if nursing and waiver services were not provided in the home. Cost-effectiveness for eligibility is compared to service costs in a hospital or nursing facility. The primary expenditure for children in the MF/TD waiver is skilled nursmg.
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Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 18 of 29 PageID #:731
F. l~ersons with Disabilities (Home Services Program) (HSP) 53. Under the Home Services waiver program (HSP), Illinois funds services to enable disabled adults to remain in their homes or in a community setting. The Illinois Department of Healthcare and Family Services (HFS) administers the HSP program with the participation of the Division of Rehabilitative Services (DRS) of the Illinois Department of Human Services (DHS) through an agreement with HFS. G. William's Current Medical Plan 54. Currently, HFS provides a medical plan for William that is medically necessary and a cost-effective alternative to care in the institutional setting that HFS determined William would otherwise require. 55. HFS has determined that William has a hospital need for care. 56 Through the MF/TD waiver program and Medicaid, HFS pays for skilled nursing care which William needs in his home. 57. HFS approved and pays for approximately $18,000.00 of monthly medical services provided by a registered nurse and a licensed practical nurse. This plan allows William to meet the costs for the salaries and benefits of the skilled nursing services that he requires. 58. William's current level of services is based upon a determination made by DSCC, after a full evaluation of William, that he needed that level of care to avoid institutionalization (hospitilization). DSCC's concluded that William would require hospitilization at an annual cost that would far exceed the amount he was awarded. 59. As William approached his 21st birthday, DSCC staff discussed William's transition into the Office of Rehabilitation Services Home Services (HSP) program and "aging out" of the
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Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 19 of 29 PageID #:732
MFITD waiver program. 60. William, through his mother, was advised by the Home Services Program (HSP)
operated by the Illinois Department of Human Services (DHS) in April, 2010, that William was entitled to an "exceptional care rate" for his in home care at a rate of $9,429 per month. DHS advised William, through his mother that this rate was the "maximum" which could be offered.
61. The exceptional care rate for William's medical care set forth in the above paragraph is not sufficient to meet the costs of the skilled nursing services which William requires.
62. The proposed reduction in funding I services by the Defendant is based solely on the fact that William will reach 21 years of age on June 18,2010. The reduction in funding I services is not due to a change in William's medical needs, which in fact have remained unchanged.
63. William's strong bond to his mother is threatened by isolation in an institution. 64. William's physicians have determined that William can be cared for at home safely and appropriately. 65. Under the laws governing the Home Services Program, HFS has discretion to set funding for services for persons whose needs cannot be met by otherwise applicable caps, provided that the program is cost neutral. 66. With no modifications in its regulations, and little modifications in its practices, HFS could continue to fund the level of nursing care that William requires in order to remain at home at a cost that is less than would be required to serve him in an appropriate institutional setting for the care he needs. 67. If allowed to go into effect, the proposed reduction in funding for William's medical
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Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 20 of 29 PageID #:733
care will ultimately force William into an institutional setting (hospital), isolating him from home and community, or alternatively, will likely result in his imminent death if he remains in his home.
68. The Defendant has informed the Plaintiff, through his mother, that the reduced funding will take effect on William's birthday, June 18, 2010.
H. Richard's Current Medical Plan 69. Currently, HFS provides a medical plan for Richard that is medically necessary and a cost-effective alternative to care in the institutional setting that HFS determined Richard would otherwise require. 70. HFS has determined that Richard has a hospital need for care. 71 Through the MF/TD waiver program and Medicaid, HFS pays for skilled nursing care which Richard needs in his home. 72. HFS approved and pays for approximately $18,000.00 of monthly medical services provided by a registered nurse and a licensed practical nurse. This plan allows Richard to meet the costs for the salaries and benefits of the skilled nursing services that he requires. 73. Richard's current level of services is based upon a determination made by DSCC, after a full evaluation of Richard, that he needed that level of care to avoid institutionalization (hospitilization). DSCC's concluded that Richard would require hospitilization at an annual cost that would far exceed the amount he was awarded. 74. As Richard approached his 21st birthday, DSCC staff discussed Richard's transition into the Office of Rehabilitation Services Home Services (HSP) program and "aging out" of the MF/TD waiver program.
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75. Richard has been advised under the HSP program, he is only entitled to an "exceptional care rate" for his in home care at a rate of approximately $9,429 per month.
76. The exceptional care rate for Richard's medical care set forth in the above paragraph is not sufficient to meet the costs of the skilled nursing services which Richard requires.
77. The proposed reduction in funding I services by the Defendant is based solely on the fact that Richard will reach 21 years of age on August 16, 201 0. The reduction in funding I services is not due to a change in Richard's medical needs, which in fact have remained unchanged.
78. Richard does not desire to be isolated in an institution and away from his horne I community.
79. Richard's physician, Dr. Gregory Milani, has determined that Richard can be cared for at home safely and appropriately.
80. Under the laws governing the Horne Services Program, HFS has discretion to set funding for services for persons whose needs cannot be met by otherwise applicable caps, provided that the program is cost neutral.
81. With no modifications in its regulations, and little modifications in its practices, HFS could continue to fund the level of nursing care that Richard requires in order to remain at home at a cost that is less than would be required to serve him in an appropriate institutional setting for the care he needs.
82. If allowed to go into effect, the proposed reduction in funding for Richard's medical care will ultimately force Richard into an institutional setting (hospital), isolating him from home and community, or alternatively, will likely result in his imminent death if he remains in his
21

Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 22 of 29 PageID #:735
home. 83. The Plaintiff has been informed that the reduced funding will take effect on his
birthday, August 16, 2010. I. Adam's Current Medical Plan 84. Currently, HFS provides a medical plan for Adam that is medically necessary and a
cost-effective alternative to care in the institutional setting that HFS determined Adam would otherwise require.
85. HFS has determined that Adam has a hospital need for care. 86 Through the MF/TD waiver program and Medicaid, HFS pays for skilled nursing care which Adam needs in his home or community. 87. HFS approved and pays for approximately $18,000.00 of monthly medical services provided by a registered nurse and a licensed practical nurse and unskilled nursing services. This plan allows Adam to meet the costs for the salaries and benefits of the skilled and unskilled nursing services that he requires. 88. Adam's current level of services is based upon a determination made by DSCC, after a full evaluation of William, that he needed that level of care to avoid institutionalization (hospitilization). DSCC's concluded that Ada would require hospitilization at an annual cost that would far exceed the amount he was awarded. 89. As William approached his 21st birthday, DSCC staff discussed Adam's transition into the Office of Rehabilitation Services Home Services (HSP) program and "aging out" of the MF/TD waiver program. 90. Adam and/or his mother, was advised by the Home Services Program (HSP) operated
22

Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 23 of 29 PageID #:736
by the Illinois Department of Human Services (DHS) in July, 2010, that Adam was entitled to funding for his in home care at a rate of approximately $3,300 per month. On August 6, 2010, Karen Engstrom of DRS advised Adam and his mother, that Adam would be funded at an exceptional care rate of $8,000 per month.
91. The care rate for Adam's medical care set forth in the above paragraph is not sufficient to meet the costs of the skilled and unskilled nursing services which Adam requires.
92. The proposed reduction in funding I services by the Defendant is based solely on the fact that Adam will reach 21 years of age on August 29,2010. The reduction in funding I services is not due to a change in Adam's medical needs, which in fact have remained unchanged.
93. Adam's strong bond to his mother is threatened by isolation in an institution. 94. Adam's physicians have determined that Adam can be cared for at home safely and appropriately. 95. Under the laws governing the Home Services Program, HFS has discretion to set funding for services for persons whose needs cannot be met by otherwise applicable caps, provided that the program is cost neutral. 96. With no modifications in its regulations, and little modifications in its practices, HFS could continue to fund the level of nursing care that Adam requires in order to remain at home or in the community at a cost that is less than would be required to serve him in an appropriate institutional setting for the care he needs. 97. If allowed to go into effect, the proposed reduction in funding for Adam's medical care will ultimately force Adam into an institutional setting (hospital), isolating him from home
23

Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 24 of 29 PageID #:737
and community, or alternatively, will likely result in his imminent death if he remains in his home or community.
98. The Defendant has informed the Plaintiff and his mother, that the reduced funding will take effect on Adam's birthday, August 29,2010.
VI. CAUSES Of ACTION COUNT I
VIOLATION OF AMERICAN WITH DISABILITIES ACT (ADA) AND 42 U.S.C SECTION 1983
99. The Plaintiffs repeats and incorporates by reference as though fully set forth here the facts contained in paragraphs 1 through 98 above.
100. Title II of the American with Disabilities Act (ADA) provides that no qualified person with a disability shall be subjected to discrimination by a public entity. 42 U.S.C. Sec. 42 U.S.C. Sec. 12132. A public entitle shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. 28 C.F.R. Sec. 35.130(d) (1998). Policies and practices that have the effects of unjustifiably segregating persons with disabilities in institutions constitute prohibited discrimination under the ADA.
101. The Plaintiffs are qualified individuals with disabilities within the meaning of Title II ofthe ADA.
102. The Illinois Department of Healthcare and Family Services of which Defendant Hamos is Director is a "public entity" within the meaning of Title II of the ADA.
103. The actions by HFS constitute unlawful discrimination under 42 U.S.C. Sec. 12132
24

Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 25 of 29 PageID #:738
and violate the integration mandate of the regulations implementing this statutory prohibitions. 28 C.P.R. Sec. 35.130(d).
104. The Defendant's planned reduced funding of the home nursing and other services which William, Richard and Adam needs in order to avoid institutionalization, violates Title II of the ADA, 42 U.S.C. Sec. 12132 and its implementing regulation. 28 C.P.R. Sec. 35.130(d).
105. The Plaintiffs and the putative class will suffer irreparable injury if the Defendant is not enjoined from reducing the funding when a person turns the age of21 years, as the reduced level of funding will force the Plaintiff and the putative class into an institution, where they will not receive the most integrated setting appropriate to their needs, or alternatively, the reduced level of funding and remaining at home may lead to their death or serious injury.
I 06. The Plaintiffs and putative class have no adequate remedy at law. 107. The Plaintiffs are indigent and unable to post bond.
COUNT II VIOLATION OF REHABILITATION ACT AND 42 U.S.C SECTION 1983 I 08. The Plaintiffs repeat and incorporate by reference as though fully set forth here the facts contained in paragraphs I through 107 above. I 09. The Rehabilitation Act, 29 U.S.C. Sec. 794, prohibits public entities and recipients of federal funds from discriminating against any individual by reason of disability. The implementing regulation for the statute requires that public and federally-funded entities provide programs and activities "in the most integrated setting appropriate to the needs of the qualified individual with a disability." 28 C.P.R. Section 41.51(d). Policies and practices that have the
25

Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 26 of 29 PageID #:739
effects of unjustifiably segregating persons with disabilities in institutions constitute prohibited discrimination under the RA.
110. The Illinois Department ofHealthcare and Family Services is a recipients of federal funds under the Rehabilitation Act..
111. The Plaintiffs are qualified individuals with a disability under Section 504 of the Rehabilitation Act.
112. The actions by HFS constitute unlawful discrimination under 29 U.S.C. Sec. 794(a) and violate the integration mandate of the regulations implementing this statutory prohibition. 28 C.F.R. Sec. 41.51(d).
113. The Defendant's planned reduced funding of the home nursing and other services which William, Richard and Adam needs in order to avoid institutionalization, violates Section 504 of the Rehabilitation Act of 1973,29 U.S.C. Sec. 794(a) and its implementing regulation. 28 C.F.R. Sec. 41.51 (d).
114. The Plaintiffs and the putative class will suffer irreparable injury if the Defendant is not enjoined from reducing refunding when they turn the age of 21 years, as the reduced level of funding will force the Plaintiffs and the putative class into an institution, where they will not receive the most integrated setting appropriate to his needs, or alternatively, the reduced level of funding and remaining at home may lead to their death or serious injury.
115. The Plaintiffs and putative class have no adequate remedy at law. 116. The Plaintiffs are indigent and unable to post bond.
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Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 27 of 29 PageID #:740
VII. REQUEST FOR RELIEF WHEREFORE, the Plaintiffs respectfully request that this Court: (a) Certify this case to proceed as a class action. (b) Issue a Declaratory Judgment in favor of the Plaintiff and the Class and that the Defendant's reduction in funding which results in a reduction of medical services when aging out ofthe State of Illinois Medically Fragile, Technology Dependent program (MF/TD) violates the Americans with Disabilities Act, 42 U.S.C. Sec. 12132 and Section 504 of the Rehabilitation Act, 29 U.S.C. Sec. 794(a) and their implementing regulations, 28 C.F.R. Sec. 35.130(d), 41.51(d). (c) Issue Preliminary and Permanent Injunctive relief requiring the Defendant to restore the level of funding to maintain the existing medical services for the Plaintiffs and putative class prior to aging out of the State of Illinois Medically Fragile, Technology Dependent program (MF/TD). (d) Award Plaintiffs and the Class the costs of this action, including reasonable attorneys fees, pursuant to 42 U.S.C. Section 12205; Section 504 of the Rehabilitation Act, and 42 U.S.C. Section 1988; and (e) Award such other relief as the Court deems just and appropriate.
Respectfully submitted, Is/ Robert H Farley, Jr. Attorney for Plaintiffs
27

Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 28 of 29 PageID #:741 Robert H. Farley, Jr. Robert H. Farley, Jr., Ltd. 1155 S. Washington Street Naperville, IL 60540 Phone: 630-369-0103 Fax: 630-369-019
28

Case: 1:10-cv-03121 Document #: 41 Filed: 08/11/10 Page 29 of 29 PageID #:742 CERTIFICATE OF SERVICE
I, Robert H. Farley, Jr., Attorney for the Plaintiff, deposes and states that he caused the foregoing Plaintiffs' Second Amended Complaint for Declaratory and Injunctive Relief to be served by electronically filing said document with the Clerk of the Court using the CM/ECF system, this 11th day of August, 2010.
Is/ Robert H Farley, Jr.
29

 
 Case: 1:10­cv­03121 Document #: 63 Filed: 11/18/10 Page 1 of 3 PageID #:1079

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

WILLIAM R. HAMPE, by and through his

)

mother / guardian Jill Hampe, RICHARD L.

)

WINFREY, III, ADAM CALE, OLIVIA

)

WELTER, by and through her parents/guardians )

John Welter and Tamara Welter, PHILLIP

)

BARON, by and through his mother/guardian

)

Barbara Baron, JESSICA L. LYTLE, by and

)

through her mother/guardian Judith A Lytle,

)

JACOB STRACKA, by and through his parents/ )

guardians, David Stracka and Nicole Stracka,

)

and CHARLES STOUT individually and on

)

behalf of a class,

)

)

Plaintiffs,

)

)

vs.

)

)

JULIE HAMOS, in her official capacity

)

as Director of the Illinois Department of

)

Healthcare and Family Services,

)

)

Defendant.

)

No. 10 C 3121 Judge William J. Hibbler Magistrate Judge Arlander Keys

DEFENDANT HAMOS’ MOTION TO DISMISS CERTAIN PLAINTIFFS AS MISJOINED
PARTIES PURSUANT TO Fed. Rules Civ. P. 21 and 20(a)(1).

NOW COMES Defendant, JULIE HAMOS, in her official capacity as Director of

the Illinois Department of Healthcare and Family Services, by and through her attorney, LISA

MADIGAN, Attorney General of Illinois and pursuant to Fed. Rules Civ. P. 21 and 20(a)(1),

hereby moves to dismiss Plaintiffs Richard L. Winfrey, III, Adam Cale, Olivia Welter, Phillip

Baron, Jessica L. Lytle, Jacob Stracka and Charles Stout from this action because they fail to meet

the permissive joinder criteria set forth in Fed. R. Civ. P. 20(a)(1), stating as follows:

1. The Plaintiffs named in this action do not assert any right to relief against

Defendant jointly or severally within the meaning of Fed. R. Civ. P. 20(a)(1)(A).

1

Case: 1:10­cv­03121 Document #: 63 Filed: 11/18/10 Page 2 of 3 PageID #:1080
2. The Plaintiffs named in this action do not assert any right to relief against Defendant with respect to, or arising out of, the same transaction, occurrence, or series of transactions or occurrences within the meaning of Fed. R. Civ. P. 20(a)(1)(A).
3. No question of law or fact common to all Plaintiffs will arise in this action within the meaning of Fed. R. Civ. P. 20(a)(1)(B).
4. Even if each Plaintiff named in this action could satisfy the criteria set forth in Fed. R. Civ. P. 20(a)(1), the Court should exercise its discretion to refuse joinder in the interest of avoiding prejudice to Defendant and delay.
5. The same deficiencies would exist if Kristen Kocourek were added as a Plaintiff by the Fourth Amended Complaint.
6. Defendant submits a memorandum of law in support of this Motion to Dismiss. A Proposed Order is also attached to this document as Defendant’s Exhibit A.
WHEREFORE, for the foregoing reasons, Defendant JULIE HAMOS, in her official capacity as Director of the Illinois Department of Healthcare and Family Services prays that:
A. Plaintiff’s Motion for Leave to File Fourth Amended Complaint Instanter be denied;
B. Defendant Hamos’ Motion to Dismiss Certain Plaintiffs as Misjoined Parties be granted; and
C. Plaintiffs Winfrey, Cale, Welter, Baron, Lytle, Stracka and Stout are dismissed from this case without prejudice to their filing of separate actions that assert the same claims against the Defendant as those that are asserted here;
D. The Amended Complaint, the Second Amended Complaint and the Third Amended Complaint are dismissed. Plaintiff’s original Complaint and Defendant’s Answer to the original
2

Case: 1:10­cv­03121 Document #: 63 Filed: 11/18/10 Page 3 of 3 PageID #:1081

Complaint are reinstated and shall be the pleadings for this case.

E. The Pretrial Scheduling Order entered September 7, 2010 shall remain in effect.

Respectfully submitted,

LISA MADIGAN Attorney General State of Illinois

DATED: November 18, 2010

By: /s/ Karen Konieczny KAREN KONIECZNY #1506277 JOHN E. HUSTON #3128039 Assistant Attorneys General 160 N. LaSalle St. Suite N-1000 Chicago, IL 60601 (312) 793-2380

3

Case: 1:10­cv­03121 Document #: 63­1 Filed: 11/18/10 Page 2 of 3 PageID #:1083

Case: 1:10­cv­03121 Document #: 63­1 Filed: 11/18/10 Page 3 of 3 PageID #:1084

 
 Case: 1:10-cv-03121 Document #: 64 Filed: 11/18/10 Page 1 of 15 PageID #:1085

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

WILLIAM R. HAMPE, by and through his

)

mother / guardian Jill Hampe, RICHARD L.

)

WINFREY, III, ADAM CALE, OLIVIA

)

WELTER, by and through her parents/guardians )

John Welter and Tamara Welter, PHILLIP

)

BARON, by and through his mother/guardian

)

Barbara Baron, JESSICA L. LYTLE, by and )

through her mother/guardian Judith A Lytle,

)

JACOB STRACKA, by and through his parents/ )

guardians, David Stracka and Nicole Stracka,

)

and CHARLES STOUT individually and on

)

behalf of a class,

)

)

Plaintiffs,

)

)

vs.

)

)

JULIE HAMOS, in her official capacity

)

as Director of the Illinois Department of

)

Healthcare and Family Services,

)

)

Defendant.

)

No. 10 C 3121 Judge William J. Hibbler Magistrate Judge Arlander Keys

DEFENDANT HAMOS’ COMBINED MEMORANDUM OF LAW IN RESPONSE TO PLAINTIFF’S MOTION TO FILE A FOURTH AMENDED COMPLAINT INSTANTER AND IN SUPPORT OF HER MOTION TO DISMISS
CERTAIN PLAINTIFFS AS MISJOINDED PARTIES

NOW COMES Defendant, JULIE HAMOS, in her official capacity as Director of the

Illinois Department of Healthcare and Family Services, by and through her attorney, LISA

MADIGAN, Attorney General of Illinois, and submits this memorandum of law in response to

Plaintiffs’ Motion to File a Fourth Amended Complaint Instanter and in support of her Motion to

Dismiss Certain Plaintiffs as Misjoined Parties pursuant to Fed. Rules Civ. P. 20 and 21, stating as

follows:

Case: 1:10-cv-03121 Document #: 64 Filed: 11/18/10 Page 2 of 15 PageID #:1086
STATEMENT OF FACTS The original named Plaintiff to this action, William R. Hampe, seeks declaratory relief on his own behalf, and on behalf of a class, because the Defendant allegedly violates the Americans with Disabilities Act, 42 U.S.C. § 12132 (hereinafter “ADA”), Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) (hereinafter “Section 504”), and their implementing regulations, 28 C.F.R. §§ 35.130(d) and 41.51(d) (appended as Defendant’s Exhibit A), by reducing funding and concomitant medical services when they reach age 21 and lose eligibility for the State of Illinois’ Medical Fragile and Technology Dependent Children’s Medicaid Waiver. (Hampe v. Hamos, U.S. Civil Docket, 10 C 3121 at Doc. No. 1, Request for Relief (b), p. 27, hereinafter cited as “Civil Docket Doc. No. ___”). Plaintiff Hampe and the putative class also seek preliminary and permanent injunctive relief “requiring the Defendant to restore the level of funding to maintain the existing medical services for the Plaintiffs and putative class prior to aging out of the State of Illinois Medically Fragile, Technology Dependent program (MF/TD).” (Id. at Request for Relief (c), p. 28). Plaintiff Hampe alleged that before he reached age 21, he was eligible to participate in a federally-approved Medicaid Waiver that allowed him to receive certain services in his home that would not otherwise be available to Medicaid recipients. (Id. at ¶¶ 1, 2). Plaintiff alleged that these services ended when he reached the age of 21 because the federally-approved Medicaid Waiver involved, the State of Illinois Medically Fragile and Technology Dependent Children’s Waiver (hereinafter “MF/TD”), is limited to individuals under the age of 21. (Id. at ¶ 1). Plaintiff alleged and Defendant denied that he received 16 hours per day of skilled nursing care in his home through MF/TD. (Id. at ¶ 1; Civil Docket at Doc. No. 16, ¶ 1). Plaintiff Hampe did not allege that Defendant intentionally discriminated against him, or
2

Case: 1:10-cv-03121 Document #: 64 Filed: 11/18/10 Page 3 of 15 PageID #:1087
that any act on Defendant’s part had a disparate impact on him. Rather, Plaintiff’s claim is that Defendant “systemically” or “per se” violates the ADA, Section 504 and the implementing regulations by “reducing” funding and medical services simply because he and the putative class members “aged out” of MF/TD when they reached age 21. Defendant vigorously contests this claim. (Civil Docket at Doc. No. 1, ¶¶ 3, 4; Doc. No. 16, ¶¶ 3, 4). Among other things, Defendant offered each Plaintiff an opportunity to participate in a home and community-based services program for adults based on their individual circumstances and needs.
Defendant answered the original Complaint on June 14, 2010. (Civil Docket at Doc. No. 16). Before the Defendant filed her Answer, Plaintiff Hampe and Defendant agreed to maintain the status quo for him. (Civil Docket at Doc. No. 11). Within a month of the filing of the Answer, Plaintiff moved for leave to file an Amended Complaint to add a new Plaintiff, Richard L. Winfrey, III (Civil Docket at Doc. No. 22), and filed the Amended Complaint on July 15, 2010. (Civil Docket at Doc. No. 21).
Plaintiff Richard L. Winfrey, III made identical allegations as to Defendant’s purported systemic violations of the ADA, Section 504 and the implementing regulations (Civil Docket at Doc. No. 21, ¶¶ 1, 2), and sought the same relief as Plaintiff Hampe. (Id. at Prayer for Relief (a) through (d), pp. 21-22). However, the factual allegations of each Plaintiff set forth at Paragraphs 19(a) through 34 and Paragraphs 45 through 74 demonstrate that the situations of each Plaintiff are dissimilar. (Civil Docket at Doc. No. 21, ¶¶ 19(a)-34, 45-74). Each Plaintiff has alleged different disabilities and differing needs. (Id.) The factual allegations show that the degrees to which each Plaintiff requires assistance with the activities of daily living vary. (Id.) The factual allegations of each Plaintiff require different proof, including the introduction of differing medical histories and opinions from different physicians. (Id.) The alleged threatened loss of in-home skilled nursing
3

Case: 1:10-cv-03121 Document #: 64 Filed: 11/18/10 Page 4 of 15 PageID #:1088
services resulted, not from any adverse action taken against any Plaintiff by any State employee, but because each Plaintiff lost eligibility for a home and community-based services program due to age. (Id.) The actions complained of occurred at different times. (Id.) There are no allegations that there is a causal link between a common and identifiable wrongful act on Defendant’s part and adverse actions taken with respect to each Plaintiff. (Id.) No Plaintiff alleged that there is any relationship between them as to their alleged threatened loss of in-home nursing. (Id.) The alleged “policy” to which each Plaintiff claims to have been subjected is not a policy at all, but, rather, loss of eligibility for Medicaid-funded benefits due to age. (Id.)
Shortly before Defendant answered the Amended Complaint, Plaintiff Winfrey secured an Agreed Order to maintain his pre-21st birthday status quo. (Civil Docket at Doc. No. 33). Defendant answered the Amended Complaint on August 3, 2010 (Civil Docket at Doc. No. 37), and Plaintiff repeated the pattern of obtaining leave to add a new Plaintiff, Adam Cale, filing a Second Amended Complaint, and securing an Agreed Order to maintain Adam Cale’s pre-21st birthday status quo. (Civil Docket at Doc. Nos. 38, 41, 49). A comparison of Plaintiff Cale’s factual allegations to those of the other two Plaintiffs demonstrates that all the dissimilarities previously described between Plaintiffs Hampe and Winfrey are present among the three named Plaintiffs in the Second Amended Complaint. (Civil Docket at Doc. No. 41, ¶¶ 20(a)-43, 54-98).
Plaintiff Hampe’s motion for class certification was fully briefed as of July 16, 2010. (Civil Docket at Doc. Nos. 12, 17, 27). The motion for class certification is awaiting decision. Additionally, by order entered September 7, 2010, the Court set the Pretrial Scheduling Order. (Civil Docket at Doc. No. 51). Discovery has been progressing since the entry of the Pretrial Scheduling Order. The Scheduling Order gave the parties until October 29, 2010 to amend the pleadings and to “add new parties.” (Id.)
4

Case: 1:10-cv-03121 Document #: 64 Filed: 11/18/10 Page 5 of 15 PageID #:1089
On October 28, Plaintiffs filed a Third Amended Complaint that added five new Plaintiffs. (Civil Docket at Doc. No. 54). A comparison of Plaintiff Welter’s, Baron’s, Lytle’s, Stracka’s, and Stout’s allegations to those of Plaintiffs Hampe, Winfrey and Cale, shows that all the dissimilarities previously identified between the Plaintiffs are present among all eight. (Civil Docket at Doc. No. 54, ¶¶ 27(a)-92, 103-209). Plaintiff, Olivia Welter, on November 2, 2010, secured an Agreed Order maintaining her pre-21st birthday status quo. (Civil Docket at Doc. No. 58). Before the time for Defendant to answer or otherwise plead to the Third Amended Complaint elapsed, Plaintiffs moved for leave to file a Fourth Amended Complaint instanter. (Civil Docket at Doc. No. 61). The Fourth Amended Complaint seeks to add a new Plaintiff, Kristen Kocourek. A comparison of Ms. Kocourek’s factual allegations to those of the eight Plaintiffs already in the case under the Third Amended Complaint shows that all the dissimilarities previously identified between the Plaintiffs are present among all nine individuals. (Civil Docket at Doc. No. 61, Exhibit A at ¶¶ 28(a)-99, 110-240).
ARGUMENT I. PLAINTIFF’S MOTION FOR LEAVE TO FILE A FOURTH AMENDED COMPLAINT INSTANTER SHOULD BE DENIED.
The decision to grant or deny a party’s request to amend a complaint rests with the sound discretion of the District Court. Foman v. Davis, 371 U.S. 178, 182 (1962). Under Foman, leave to amend should ordinarily be freely given, unless the non-moving party establishes undue prejudice by virtue of the allowance of the amendment. Foman, Id.; Ferguson v. Roberts, 11 F.3d 696, 706 (7th Cir. 1993); Lover v. District of Columbia, 248 F.R.D. 319, 322 (D.D.C. 2008). The Seventh Circuit has recognized that amendment of a complaint will result in prejudice to the Defendant when the amended complaint contains new complex and serious charges which would undoubtedly require additional discovery for the Defendant to rebut, or when it appears to be a
5

Case: 1:10-cv-03121 Document #: 64 Filed: 11/18/10 Page 6 of 15 PageID #:1090
tactic to postpone presentation of the case on the merits. Ferguson, 11 F.3d at 706. In Ferguson, plaintiff sought to amend the complaint one month before the close of discovery. Id. The Seventh Circuit found that denying leave to amend the complaint comported with Foman. Id.
Here, Plaintiff’s Motion for Leave to File a Fourth Amended Complaint came after the time for amending pleadings and adding parties set by the Court’s Pretrial Scheduling Order. First, the Court should simply enforce its Pretrial Scheduling Order and summarily deny leave to amend the Complaint yet again. Second, even if Plaintiffs satisfy the Court that they had valid reasons to disregard the time limit as to amendment of pleadings, allowing the Fourth Amended Complaint to be filed is unduly prejudicial to Defendant by expanding the scope of discovery that Defendant would be required to take in order to prepare to rebut Ms. Kocourek’s case. Defendant is engaged in attempting to complete discovery as to the three Plaintiffs (Hampe, Winfrey and Cale) who were in the case when the Pretrial Scheduling Order was entered. The parties have not even begun the process of disclosures required by Fed. R. Civ. P. 26 or discovery as to any other Plaintiffs. Fact discovery is set to close on January 31, 2011 and Defendant does not believe that discovery could be completed in that time in light of the state of the pleadings. Defendant must start the disclosure and discovery process anew if Ms. Kocourek joins the case as a Plaintiff. Additionally, as the Statement of Facts shows, Plaintiffs are simply engaged in pressing new claims from time to time so as to delay close of discovery and disposition of the merits of the case. Under Ferguson, leave to file the Fourth Amended Complaint must be denied.
Finally, if a proposed amendment would add additional parties to the litigation, the Court must also consider Fed. R. Civ. P. 20 which governs permissive joinder. Lover v. District of Columbia, 248 F.R.D. 319, 322-23 (D.D.C. 2008) citing Robinson v. Gillespie, 219 F.R.D. 179, 188 (D. Kan. 2003). The addition of Ms. Kocourek does not satisfy the criteria for permissive
6

Case: 1:10-cv-03121 Document #: 64 Filed: 11/18/10 Page 7 of 15 PageID #:1091
joinder set forth in Fed. R. Civ. P. 20(a)(1) under all the arguments and authorities set forth in Argument II which Defendant fully adopts here. II. CERTAIN PLAINTIFFS SHOULD BE DISMISSED AS MISJOINDED PARTIES AND DIRECTED TO PURSUE THEIR CLAIMS AGAINST DEFENDANT IN SEPARATE, INDIVIDUAL ACTIONS BECAUSE THE REQUIREMENTS FOR PERMISSIVE JOINDER PURSUANT TO Fed. R Civ. P. 20(a)(1) HAVE NOT BEEN MET.
Fed. R. Civ. P. 21 states that, “On motion or on its own, the court may at any time, on just terms, add or drop a party.” Since Rule 21 does not provide any standards by which district courts can determine if parties are misjoined, courts have looked to Fed. R. Civ. P. 20 for guidance. Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 516, 521 (5th Cir. 2010) citing Pan Am. World Airways, Inc. v. U.S. District Court, 523 F.2d 1073, 1079 (9th Cir. 1975). Rule 21 authorizes the court to dismiss any misjoined party at any stage of a lawsuit. Bailey v. Northern Trust Co., 196 F.R.D. 513, 515 (N.D. Ill. 2000). In such a case, the court can dismiss all but the first named plaintiff without prejudice to the institution of new, separate lawsuits by the dropped plaintiffs against the present defendant based upon the claims attempted to be set forth in the present complaint. Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997).
Fed. R. Civ. P. 20 provides in pertinent part: (1) Plaintiffs. Persons may join in one action as plaintiffs if: (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action.
Parties are misjoined when they fail to satisfy either of the preconditions for persmissive joinder set forth above in Rule 20(a)(1). Bailey, 196 F.R.D. at 515; Harris v. Spellman, 150 F.R.D. 130, 131 (N.D. Ill. 1993) (two independent prerequisites must be present to support permissive joinder
7

Case: 1:10-cv-03121 Document #: 64 Filed: 11/18/10 Page 8 of 15 PageID #:1092
under Rule 20(a): a right to relief arising from a single occurrence or series of occurrences and a common question of law or fact). Emphasis in original.
A. The Claims Asserted By Plaintiffs Do Not Arise Out Of The Same Transaction Or Occurrence.
The Third Amended Complaint does not even purport to allege that the eight named Plaintiffs are asserting a right to relief jointly or severally within Rule 20(a)(1)(A). (Civil Docket at Doc. No. 54). Moreover, the eight named Plaintiffs’ alleged right to relief does not arise out of the “same transaction, occurrence, or series of transactions or occurrences” within Rule 20(a)(1)(A). In determining whether plaintiffs have been misjoined, a case-by-case approach is generally pursued because no hard and fast rules have been established. Grayson v. K-Mart Corp. 849 F. Supp. 785, 787 (N.D. Ga. 1994); Berry v. Illinois Department of Human Services, 2001 WL 111035 at *17 (N.D. Ill. February 2, 2001) (appended as Defendant’s Exhibit B); 7 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, § 1653, ns. 8, 9 (3d ed.).
In order to satisfy the “same transaction or occurrence” requirement, some similarity among the plaintiffs in the factual background of their claims must be present. Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997) (an allegation of general delay in processing pending immigration petitions does not suffice to create a common transaction or occurrence); Harris v. Spellman; 150 F.R.D. 130, 132 (N.D. Ill. 1993) (allegedly similar procedural errors occurring at different times by different tribunals does not convert independent prison disciplinary hearings into the same series of transactions or occurrences); Papagiannis v. Pontikis, 108 F.R.D. 177, 179 (N.D. Ill. 1985) (the fact that there were similarities in the methods used to commit fraud in different transactions with plaintiffs does not satisfy Rule 20 so as to permit joinder of plaintiffs); Smith v. North American Rockwell Corp., 50 F.R.D. 515, 522-23 (N.D. Okla. 1970) (even an allegation that plaintiffs were subjected to discrimination under a general policy does not support
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joinder, because the court would have to consider how the alleged general policy affected each plaintiff and focus in detail on the separate histories of each plaintiff); Lover v. District of Columbia, 248 F.R.D. 319, 324-25 (D.D.C. 2008) (joinder of plaintiffs is not proper where, although the claims levied against defendants are substantially the same for each plaintiff, factual dissimilarities exist in the events that gave rise to each plaintiff’s claims); Bailey v. Northern Trust Co., 196 F.R.D. 513, 515-17 (N.D. Ill. 2000) (plaintiffs could not properly join their employment discrimination claims because adverse employment actions taken against them were not a single action by defendant and a general claim of hostility toward African-American employees does not transform separate decisions into the same transaction or occurrence); Rohlfing v. Cat’s Paw Rubber Co., 99 F. Supp. 886, 894 (N.D. Ill. 1951) (plaintiffs, owners of shoe repair shops, are not properly joined when their alleged antitrust claims against defendants are premised on individual facts arising between each plaintiff and defendant). Factors that have been considered in determining whether discrimination claims arise from the same transaction, occurrence, or series of transactions or occurrences include the time period during which the alleged acts occurred, whether the alleged acts of discrimination are related, and whether the plaintiff challenges an across the board policy. Berry v. Illinois Department of Human Services, 2001 WL 111035 at *17 (N.D. Ill. February 2, 2001). (Defendant’s Exhibit B).
Here, a review of the factual allegations of the eight Plaintiffs proceeding under the Third Amended Complaint (Civil Docket at Doc. No. 54, ¶¶ 27(a)-92, 103-209), establishes that the alleged injury to each Plaintiff is premised on individual facts that exist between each Plaintiff and the Defendant, and that the alleged injury could only have arisen from the unique circumstances of the individual relationship with the Defendant. The Court should apply the cases cited in the preceding paragraph to conclude that Plaintiffs Winfrey, Cale, Welter, Baron, Lytle, Stracka and
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Stout have been misjoined and must be dismissed. Admittedly, each Plaintiff is advancing the same claims against Defendant, but under the cases cited on pages 8 and 9 of this memorandum, pursuit of the same claims, alone, does not support permissive joinder pursuant to Rule 20(a)(1)(A). Here, the times at which the alleged loss occurred to each Plaintiff are separate and discrete events. The alleged disabilities, needs and strengths of each Plaintiff are unique so that the question of whether an age limit in a program can or should be modified or waived turns on highly individualized facts. The viability of each Plaintiff’s claim against Defendant will involve each individual’s medical conditions and medical history. Similarly, since the Plaintiffs’ claims involve to what extent, if any, a modification of the eligibility requirements of Defendant’s programs (including the age requirement) is reasonable, the facts that underlie the reasonableness analysis are discrete, unique and highly individualized for each Plaintiff. Lastly, under the authorities cited above, the fact that each Plaintiff claims to be challenging a “policy” does not support permissive joinder pursuant to Rule 20(a)(1)(A). Accordingly, Plaintiffs fail to satisfy the “same transaction or occurrence” prong of Rule 20(a)(1)(A).
B. No Question Of Law Or Fact Common To All Plaintiffs Will Arise In This Action.
The Plaintiffs cannot meet the criteria set forth in Rule 20(a)(1)(B). No question of law or fact common to all Plaintiffs will arise in this action. The ADA at, Section 12132, provides in pertinent part that “. . . no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. To establish a violation of Title II of the ADA, the Plaintiff must show that 1) he is a qualified individual with a disability, 2) he was excluded from participation in or otherwise discriminated against with regard to a public entity’s services, programs, or activities, and 3) such an exclusion
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was by reason of his or her disability. Sandison v. Michigan High School Athletic Ass’n., Inc., 64 F.3d 1026, 1036 (6th Cir. 1995). Under the law of the Seventh Circuit, the public entity’s failure to grant a reasonable accommodation is a theory of liability separate from intentional discrimination. Good Shepherd Manor Foundation, Inc. v. City of Momence, 323 F.3d 557, 56162 (7th Cir. 2003); Wisconsin Community Services, Inc., v. City of Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006). In this Circuit, a plaintiff pursuing a reasonable accommodation claim under Title II need not allege either disparate treatment or disparate impact. Wisconsin Community Services, Id.
Turning, next, to Section 504, it provides in pertinent part that, “. . . [n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . .” 29 U.S.C. § 794(a). To establish a violation of Section 504, the Plaintiff must show that 1) he is handicapped within the meaning of Section 504, 2) he is otherwise qualified for the benefit or services sought, 3) he was denied the benefit solely by reason of his handicap, and 4) the program providing the benefit or services received federal financial assistance. Plummer by Plummer v. Branstad, 731 F.2d 574, 577 (8th Cir. 1984); Sandison, 64 F.3d at 1030-31.
In Alexander v. Choate, 469 U.S. 287, 301-08 (1985), the Supreme Court held that meaningful access to Medicaid services for the disabled did not restrict the State’s discretion under federal Medicaid law to choose the proper amount, scope and duration limitations on covered services. The Court observed that Section 504 does not require the State to alter the benefits offered under its Medicaid program simply to meet the reality that disabled persons have greater medical needs because, to conclude otherwise, would be to find that the Rehabilitation
11

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Act requires that States view certain medical conditions as more important than others and more worthy of cure through government subsidization. Alexander, 469 U.S. at 303-04. Thus, Tennessee’s limitation on hospital days covered by Medicaid did not offend Section 504 because the denial of benefits, even when left unmodified, was not linked in any way to those plaintiffs’ particular disabilities. Accord: Frances J. by Murphy v. Bradley, 1992 WL 390875 at *7 (N.D. Ill. 1992) vacated on other grounds 19 F.3d 337 (7th Cir. 1994) (appended as Defendant’s Exhibit C).
Both the plain language of the ADA and Section 504, together with the purposes for which Congress enacted these statutes, make clear that each Plaintiff must establish whether he or she is a member of the group that Congress intended to benefit by proving whether he or she is a “qualified individual with a disability” or “otherwise qualified.” 42 U.S.C. § 12132; 29 U.S.C. § 794(a). Those questions, in turn, include an analysis of whether each Plaintiff can meet the essential eligibility requirements of Defendant’s program, with or without a reasonable modification. Each Plaintiff, thus, must submit proof of his or her own unique circumstances as part of the claim, call different witnesses, and submit different documentary proof. The court must determine for each individual not only whether discrimination occurred, but also whether such discrimination was unlawful. Cf. Hohider v. United Parcel Service, Inc., 574 F.3d 169, 191-94 (3rd Cir. 2009).
Moreover, Defendant, here, was ready, willing and able to give individualized consideration of each Plaintiff’s needs for participation in a home and community-based services program for adults. All factual and legal questions between the Plaintiffs and Defendant are based upon the wholly separate acts of Defendant with respect to each Plaintiff, and, there is a complete lack of common questions of law and fact. See Grayson v. K-Mart Corp., 849 F. Supp. 785, 789 (N.D.
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Ga. 1994). See also Harris v. Spellman, 150 F.R.D. 130, 132 (N.D. Ill. 1993) (because a claim of denial of procedural due process is in part a function of the severity of the loss to the plaintiff, the legal issues raised by each plaintiff are not logically related in any way); Smith v. North American Rockwell Corp., 50 F.R.D. 515, 524 (N.D. Okla. 1970) (the fact that each plaintiff is pursuing the same theory of law against the defendant is not sufficient because the question whether a defendant unlawfully discriminated against one plaintiff is not common with the question whether a defendant discriminated against another plaintiff); Grayson v. K-Mart Corp., 849 F. Supp. 785, 789 (N.D. Ga. 1994) (no common questions of law or fact arise within the meaning of Rule 20 when the factual and legal questions between the plaintiffs and the defendant are based upon wholly separate acts of the defendant with respect to each plaintiff).
C. Assuming, Arguendo, That Plaintiffs Satisfy The Requirements For Permissive Joinder Set Forth In Fed. R. Civ. P. 20(a)(1), The Court Should Exercise Its Discretion To Refuse Joinder To Avoid Prejudice To Defendant And Delay.
Even if Plaintiffs can satisfy the Court that they have met the criteria for permissive joinder set forth in Rule 20(a)(1), the court has the discretion to refuse joinder in the interest of avoiding prejudice and delay. Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 516, 521 (5th Cir. 2010). If permissive joinder were proper, the Court should refuse joinder in any event because the repeated pattern of adding Plaintiffs to this lawsuit is likely to expand discovery and delay final disposition of this case, to the detriment of Defendant. First, when counsel crafted the Pretrial Scheduling Order, counsel for Defendant evaluated the likely time and resource needs for discovery in light of the fact that three Plaintiffs were in the case. The time for fact discovery under the Pretrial Scheduling Order will close on January 31, 2011. (Civil Docket at Doc. No. 51). The Third Amended Complaint on October 28, 2010 added five new Plaintiffs. These new parties have not made disclosures as required by Fed. R. Civ. P. 26(a)(1) and there has, as yet, been no
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time set in which to do so. Discovery that Defendant is presently conducting is taking place with Plaintiffs Hampe, Winfrey and Cale.
Moreover, individuals participating in the MF/TD Waiver reach their 21st birthdays at different times. Defendant is aware of the identities of individuals who will attain the age of 21 between now and 2015. In theory, Plaintiffs’ counsel can keep repeating the pattern of amending the Complaint to add a new party, securing an agreed order to maintain the pre-21st birthday status quo, and indefinitely delaying final disposition of this case. Indeed, once each Plaintiff reaches agreement with Defendant to maintain the status quo, he or she has no incentive to press this case to judgment. This is highly prejudicial to Defendant. Also, prejudice is likely if an amended complaint contains new, complex and serious charges which would undoubtedly require additional discovery for defendant to rebut or require postponing resolution of the merits. Ferguson v. Roberts, 11 F.3d 696, 706 (7th Cir. 1993). Each new Plaintiff requires the Defendant to start the discovery process from scratch. This is nothing more than seriatem presentation of facts and issues and, as such, prejudices the Defendant. Parish v. Frazier, 195 F.3d 761, 764 (5th Cir. 1999).
Second, delaying a decision on the merits by the practice of adding a Plaintiff from time to time requires Defendant to continue to pay medical assistance under the terms of the Agreed TROs without any end point.
Finally, the failure to meet the criteria for permissive joinder dooms Plaintiff’s motion for class certification. Harris v. Spellman, 150 F.R.D. 130, 132, n.2 (N.D. Ill. 1993). Since every class action requires an identity of questions of law or fact common to the class plus a finding that the claims of the representative parties are typical of the claims of the class, since Plaintiffs here themselves raise disparate claims, the case clearly does not qualify for class certification. Id.; see also Robinson v. Gillespie, 219 F.R.D. 179 (D. Kan. 2003).
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CONCLUSION

WHEREFORE, for the foregoing reasons, Defendant JULIE HAMOS, in her official

capacity as Director of the Illinois Department of Healthcare and Family Services prays that:

A. Plaintiff’s Motion for Leave to File Fourth Amended Complaint Instanter be

denied;

B. Defendant Hamos’ Motion to Dismiss Certain Plaintiffs as Misjoined Parties be

granted; and

C. Plaintiffs Winfrey, Cale, Welter, Baron, Lytle, Stracka and Stout are dismissed

from this case without prejudice to their filing of separate actions that assert the same claims

against the Defendant as those that are asserted here;

D. The Amended Complaint, the Second Amended Complaint and the Third Amended

Complaint are dismissed. Plaintiff’s original Complaint and Defendant’s Answer to the original

Complain are reinstated and shall be the pleadings for this case.

E. The Pretrial Scheduling Order entered September 7, 2010 shall remain in effect.

Respectfully submitted,

LISA MADIGAN Attorney General State of Illinois

DATED: November 18, 2010

By: /s/ Karen Konieczny KAREN KONIECZNY #1506277 JOHN E. HUSTON #3128039 Assistant Attorneys General 160 N. LaSalle St. Suite N-1000 Chicago, IL 60601 (312) 793-2380

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 Case: 1:10-cv-03121 Document #: 75 Filed: 11/22/10 Page 1 of 11 PageID #:1320

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

WILLIAM R. HAMPE, by and through his )

mother and guardian Jill Hampe, RICHARD )

L. WINFREY III, ADAM CALE, OLIVIA

)

WELTER, by and through her parents and )

guardians John and Tamara Welter, PHILLIP )

BARRON, by and through his mother and )

guardian Barbara Baron, JESSICA L. LYTLE, )

by and through her mother and guardian )

Judith Lytle, JACOB STRACKA, by and

)

through his parents and guardians David )

and Nicole Stracka, CHARLES STOUT,

)

individually and on a behalf of a class,

)

)

Plaintiffs

)

)

v.

)

)

)

JULIE HAMOS, in her official capacity

)

as Director of the Illinois Department of )

Healthcare and Family Services,

)

)

Defendant.

)

No.10C3121 The Honorable William J. Hibbler

MEMORANDUM OPINION AND ORDER The Plaintiffs in this case are medically fragile disabled persons who receive funding from the Illinois Department of Healthcare and Family Services (DHFS or Defendant) under its Medically Fragile/Technology Dependent (MF/TD) Program. The DHFS restricts enrollment in the MF/TD Program to persons under the age of 21, and according to the Plaintiffs, when they age out of the program they transition into a different program that provides substantially less funding. The Plaintiffs allege that without the funding provided by the MF/TD Program, they will have to be institutionalized or hospitalized to provide for their medical needs. The Plaintiffs claim that Defendant's policy violates
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Title II ofthe Ameicans with Disabilities Act, 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. § 794. Plaintiffs seek to certify a class ofpersons similarly situated to themselves to pursue their claims.
I. Background Medicaid provides medical assistance to both to disabled individuals and to families with dependent children whose income and resources are otherwise insufficient to pay for the cost of the medical care that they require, and is jointly funded by both the federal government and the states that choose to participate. 42 U.S.C. § 1396; 305 ILCS 5/5-1. States that participate in the Medicaid program must submit a plan outlining the services it will provide in its Medicaid program to the United States Secretary ofHealth and Human Services (HHS). 42 U.S.C. § 1396a. In addition to the services provided for under their Medicaid plans, states may request HHS approval to provide home and community-based services (HCB) to individuals who would otherwise require institutional care. The Secretary has the authority to waive certain Medicaid requirements in order for states to offer such services. 42 U.S.C. § 1396n(b)-(h); 42 C.F.R. § 430.25(d). Specifically, the Secretary may issue waivers to allow a state to provide HCB services only to individuals who would otherwise require institutionalization (rather than to every citizen who is eligible for Medicaid), provided that the average cost per-person of services offered under the waiver authority is cost-neutral (i.e., the average cost of HCB services does not exceed the cost of providing care in an institution). 42 U.S.C.§§ 1396n(c)(l), 1396n(c)(2)(d); 42 C.F.R. § 441.302(e). Illinois has sought and received a waiver for its Medically Fragile/Technology Dependent Children Program, which provides HCB services and medical equipment to children who would otherwise require institutional care. 89 Ill. Admin. Code § 120.530. Among other requirements, the MFlTD Program requires a determination that recipients would require the level of care provided by a
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hospital or skilled nursing facility unless they received HCB services. 89 Ill. Admin Code§ 120.530(b). The MFlTD Program provides funding only for persons who are under 21 years of age. 89 Ill. Admin. Code § 120.530(a). After reaching the age of 21, individuals in the MF/TD Program transition to another Medicaid waiver program, the Home Services Program (HSP). 89 Ill. Admin. Code § 676.10. The HSP, however, contains funding caps that restrict the amount ofassistance individuals can receive. 89 Ill. Admin. Code § 679.50.
One ofthe named Plaintiffs, William Hampe, has been diagnosed with reactive airway disease, cerebral palsy, intractable epilepsy, developmental delay, and microcephaly. He requires a ventilatory support system, frequent suctioning of his tracheostomy, and receives his nutrition from a j-tube. Hampe currently receives funding for 16 hours a day of skilled nursing care in his home under the MF/TD Program. Hampe's physician states that without medical home care, Hampe would require inpatient hospitalization, which would separate and isolate him from his mother and community. 1 As Hampe approached his 21st birthday, the Defendant notified him that he would transition to the HSP and would be eligible for $9,429 per month for medical care in his home, under the Program's "exceptional care rate." This funding would allow Hampe to receive approximately one-halfthe amount of skilled nursing care that he currently receives.
The ADA prohibits discrimination against disabled persons by public entities. 42 U.S.C. § 12132. The regulations implementing the ADA provide that public entities "shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). The Rehabilitation Act contains similar anti-discrimination
1 Allegedly, hospitalization would also cost approximately three times as much as the inhome skilled nursing care that Hampe currently receives.
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and integration provisions. 29 U.S.C. § 794(a) & 28 C.F.R. § 41.51(d). The Supreme Court has held

that these regulations prohibit the "unjustified institutional isolation" ofdisabled individuals. Olmstead

v. L.C., 527 U.S. 581, 599-601, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999). In Olmstead, the Supreme

Court held that public entities must provide community based treatment to qualified individuals with

disabilities, provided that the placement can be reasonably accommodated. Olmstead, 527 U.S. at 607;

see also 28 C.F.R. § 35.130(b)(7) (allowing states to resist modifications that entail a fundamental

alteration of the States' services and programs). The Plaintiffs' claims flow from the Supreme Court's

holding in Olmstead.

II. Class Certification Standard

In order to certify a class action, a court must first find that each element ofFed. R. Civ. P. 23(a)

-numerosity, commonality, typicality, and adequacy ofrepresentation- is satisfied. Fed. R. Civ. P.

23(a); Siegel v. Shell Oil Co., 612 F.3d 932,935 (7th Cir. 2010); Harper v. SheriffofCook Cnty, 581

F.3d 511, 513 (7th Cir. 2009). Once a court finds that the requirements ofRule 23(a) are met, the court

must also find that the putative class meets one of the three categories of class actions set forth in Fed.

R. Civ. P. 23(b); Siegel, 612 F.3d at 935; Harper, 581 F.3d at 513. In this case, the Plaintiffs pursue

declaratory and injunctive reliefand seek certification under Rule 23(b)(2), which permits certification

ifthe defendant has "acted or refused to act on grounds generally applicable to the class, thereby making

appropriate final injunctive reliefor corresponding declaratory reliefwith respect to the class as a whole.

Fed. R. Civ. P. 23(b)(2); see also Arreola v. Godinez, 546 F.3d 788, 797-99 (7th Cir. 2008); Rahman

v. Cherto.IJ, 530 F.3d 622,626 (7th Cir. 2008);Allen v. Int'l Truck and Engine Corp., 358 F.3d469, 470

(7th Cir. 2004).

III. Analysis

4

--- - - - - - - - - - - - - - - - - - - - -

Case: 1:10-cv-03121 Document #: 75 Filed: 11/22/10 Page 5 of 11 PageID #:1324
A. Numerosity Rule 23(a)(l) requires that the proposed class be so numerous that joinder of all persons is
impracticable. Fed. R. Civ. P. 23(a)(l). There is no threshold at which joinder becomes per se impracticable. George v. Kraft Foods Global, Inc., No. 08 C 3799,2010 WL 3386402, at *7 (N.D. Ill. Aug. 25, 201 0). Generally, a class of forty plaintiffs is sufficiently numerous for Rule 23(a) purposes. !d.; Swanson v. Am. Consumer Indus., 415 F.2d 1326, 1333 (7th Cir. 1969).
The Plaintiffs point to a December 2009 DHFS report that indicates that 504 individuals were enrolled in the MFlTD Program as ofSeptember 1, 2009 and 606 individuals received services between July 1, 2007 and June 30,2008. The report further indicates that 37 individuals aged out ofthe MFITD Program between July 2007 and December 2009. The Plaintiffs also point to an affidavit of a DHFS official stating that 34 cases of 18 to 20 year old individuals received services pursuant to the MFlTD Program as ofOctober 2005.2 Given that the Plaintiffs have put forward evidence to suggest that at two recent points in time, 34-37 individuals would age out ofthe MFITD Program in a two-year period and that over 500 individuals receive services pursuant to the MFlTD Program, the Court finds that the class is sufficiently numerous that joinder would be impracticable. B. Commonality
A common nucleus ofoperative fact is usually sufficient to satisfy the commonality requirement ofRule 23(a)(2). Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). Where a defendant has engaged
2 The Defendantsuggests that it has been "unable to locate" this document in the Plaintiffs' filings. The Defendant also implies that the affidavit is not sufficiently precise. These arguments are curious, given that in their brief the Plaintiffs cite Jones v. Maram, 373 Ill. App. 3d 184 (Ill. pp. Ct. 2007) as the source of the affidavit. Defendant submitted the affidavit in Jones in support of its arguments in that case. Having relied on the affidavit in prior litigation, Defendant's attempt to call into question both the existence of and the precision ofthe affidavit is insincere, at best. Defendant does itself no favors in disavowing or impugning such evidence.
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in standardized conduct towards members ofthe proposed class that standardized conduct is sufficient to provide a common nucleus ofoperative fact. !d. Here, Defendant's conduct in limiting participation in the MFlTD Program to individuals under the age of 21 and requiring individuals receiving services under the MFlTD Program to apply for benefits under the HSP when they tum 21 constitutes a "common nucleus ofoperative fact." The Defendant makes no determination ofan individual's medical needs when it finds that an individual is no longer eligible to receive services under the MFlTD Program and instead makes that determination based solely on the fact that the individual has reached the age of 21. The named Plaintiffs may have different medical needs and require different HCB services, but these individual differences are not sufficient to bar class certification. Although the effect ofDHFS 's conduct on each class member may differ, the allegation that its discriminatory policy or practice affects the class as a hole is sufficient to demonstrate commonality. See Rosario v. Livaditis, 963 F.2d 1013, 101 7 (7th Cir. 1992). The Plaintiffs' alleged injuries flow from the same discriminatory act Defendant's limitation of participation in the MFITD Program to individuals under the age of21.
The Defendant argues that a threshold statutory issue- whether the prospective class members are qualified individuals within the meaning ofthe ADA and Rehabilitation Act- poses individualized questions that require individualized fact-finding. In support, DHFS relies primarily on the Third Circuit's holding in Hohider v. United Parcel Serv., Inc., 574 F.3d 169 (3rd Cir. 2009). Hohider reasons that because the statutory language ofthe ADA limits the protection ofthe statute to "qualified individuals" that a court must ensure that class members are in fact qualified prior to a classwide determination that the defendant engaged in discriminatory conduct.
Defendant's argument is a red herring. The Defendant is correct that the ADA prohibits discrimination only against qualified individuals with disabilities. Putting aside the question ofwhether
6

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Hohider's reasoning is persuasive, the Court is not convinced that even ifthe court were to conduct an individualized inquiry into whether class members were qualified individuals that such an inquiry would "negate the very benefits Rule 23" confers. Def. Resp. at 13.3
The statute defines qualified individuals as disabled individuals who "with or without reasonable modifications to rules, policies, or practices ... mee[t] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12131 (2). The proposed class definition, however, includes only persons who are receiving or have or will receive services under the MFlTD Program. In that sense, the prospective class members' receipt of services under the MFlTD Program demonstrates that he or she meets the essential eligibility requirements for the receipt of services or participation in the MFlTD Program because to participate in the MFlTD Program the Defendant must determine that recipients would require the level of care provided by a hospital or skilled nursing facility unless they received HCB services. See Radaszewski v. Maram, 383 F.3d 599, 612-613 (7th Cir. 2004) (discussing whether similar disabled individual was a "qualified individual"). Because the Defendant has already made a threshold determination that the prospective class members are qualified to receive services under the MFlTD Program and because the Defendant's decision to exclude the prospective class members from that Program is based not on a change in their medical condition but on a change in their age, the Court concludes that any inquiry into whether the class members are "qualified individuals" is likely to be minimally taxing.
3 In this vein, much ofDefendant's argument seems to suggest that it argues that although there are common issues, they do not predominate. Indeed, Defendant earlier argues that "claiming that an issue predominates does not make it so." Def. Resp. at 13. Of course, whether the common issues predominate over individualized issues is a question for plaintiffs who seek certification under Fed. R. Civ. P. 23(b)(3) and not those who seek certification under 23(b)(2).
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Common questions- for example, whether Defendant's policy oftransitioning individuals from the MFITD Program to the HSP and thereby reducing their medicaid benefits violates the ADA, or whether requiring the Defendant to allow individuals in the MFlTD to continue to receive the same level of benefits after their 21st birthday that they received prior to their 21st birthday is a reasonable accommodation- clearly exist. The Court therefore finds that there are common issues oflaw and fact. C. Typicality
The question oftypicality is closely related to the question of commonality. Rosario, 963 F.2d at 1018. Typicality can be satisfied even where there are factual distinctions between the named plaintiffs claim and the claims of other class members. Muro v. Target Corp., 580 F.3d 485,492 (7th Cir. 2009). The requirement directs the court to focus on whether the named representative's claims have the same essential characteristics as the claims ofthe class at large. !d. A claim is typical '"if it arises from the same event or practice or course ofconduct"' that gives rise to the other class members' claims. Retired Chicago Police Ass 'n v. City ofChicago, 7 F.3d 584, 597 (7th Cir. 1993) (quoting H. Newberg, CLASS ACTIONS§ 1115(b) at 185 (1977)). Here, Hampe's claims are typical ofthose of the class- he receives HCB services under the MFlTD Program and when he turns 21, the DHFS will boot him from that Program and transition him to the HSP, which in tum, will result in a reduction of his funding for HCB services. The proposed class includes other individuals who will receive, are receiving or have received services under the MFlTD Program who will be subject to a reduction in Medicaid funding once they reach the age of 21. The Defendant raises the same red herring it raises in response to the Plaintiffs' argument on commonality, which remain unconvincing. The Court finds that Hampe's claims are typical ofthe claims ofthe proposed class. D. Adequacy ofRepresentation
8

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Courts make a two-part inquiry into the adequacy of representation for the purposes of class certification. First, courts examine whether the class representative can fairly and adequately protect the interests of the class. Second, courts ask whether counsel is able to prosecute the action. Retired Chicago Police Ass 'n, 7 F.3d at 598. A named representative cannot fairly and adequately protect the interests ofthe class ifhe has interests antagonistic to that class or if he lacks a sufficient interest in the outcome of the litigation. !d.
Defendant raises an argument bordering on frivolous. Defendant suggests that because some members ofthe prospective class lack standing, have moot claims, have time-barred claims, or are not "qualified individuals" that Hampe's interests are antagonistic to the class.4 Even if the Court were to accept the Defendant's underlying premises (which as noted below it does not), it does not follow that Hampe's interests are antagonistic to prospective class members who lack standing or had mooted or time-barred claims. Hampe's injury arises from the same the same alleged violation of federal law as the other proposed class members and he clearly has an interest in obtaining the injunctive relief. Defendant makes no argument that counsel is not qualified to prosecute the interest of the class. The

4 Most ofDefendant's underlying premise is itself without merit. Defendant suggests that some plaintiffs claims may be moot because they accepted funding under the HSP. But merely because an individual has submitted to the allegedly discriminatory conduct does not undo that discrimination. An employer who demoted an employee because of his race or gender could not argue that the employee's discrimination claim was "moot" because the employee accepted the demotion rather than quit. Defendant also suggests that some plaintiffs lack standing because their claims are not yet ripe because they are not nearing their 21st birthday. But that does not make the injury abstract or hypothetical. Individuals in the MF/TD Program face an inexorable march towards transition and exclusion from that Program. Defendants further suggest that some prospective class members claims are time-barred because they have already aged out of the MF/TD Program. Because the prospective class members' exclusion from the MF/TD Program is ongoing, their claims would not be time-barred. Havens Realty Corp. v. Coleman, 455 U.S. 363,
380-81, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982).
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Case: 1:10-cv-03121 Document #: 75 Filed: 11/22/10 Page 10 of 11 PageID #:1329
Court finds that Hampe is an adequate class representative and that counsel can adequately protect the interests of the class. E. Rule 23(b)(2)
Plaintiffs seek certification under Fed R. Civ. P. 23(b)(2), which requires that "plaintiffs ... need merely show that defendants acted on grounds generally applicable to the class for which they seek declaratory and injunctive relief." Fed. R. Civ. P. 23(b)(2); Pella Corp. v. Saltzman, 606 F.3d 391,392 (7th Cir. 2010). Although certification under Rule 23(b)(2) is not automatic merely because the plaintiffs seek only declaratory and injunctive relief, it is an appropriate device to remedy a state policy that treats the prospective class uniformly and presents common questions of law and fact. See, e.g. Jefferson v. Ingersoll Int 'l Inc., 195 F.3d 894, 897-99 (7th Cir. 1999) (discussing the use of Rule 23(b)(2) class actions to prosecute Title VII claims before Title VII allowed compensatory and punitive damages); Bishop v. Gainer, 272 F.3d 1009 (7th Cir. 2001) (involving 23(b)(2) class seeking declaratory and injunctive relief concerning Illinois State Police hiring practices). Defendants make no real argument that certification is not appropriate under Rule 23(b)(2), instead suggesting merely that it is not automatic.
Here, the proposed class seeks only declaratory and injunctive relief concerning Defendant's policy oftransitioning individuals receiving services in the MFlTD Program to the HSP when they reach the age of21. The Defendant's conduct towards the entire proposed class is identical- individuals age-out ofthe MFlTD Program regardless oftheir medical needs and instead based solely on their age. Moreover, Defendant has refused to modify this policy and practice despite the fact that other individual plaintiffs have successfully challenged the policy in five separate lawsuits. Certification ofthe proposed class advances the Court's interest in judicial economy because it avoids the strain of repetitive,
10

Case: 1:10-cv-03121 Document #: 75 Filed: 11/22/10 Page 11 of 11 PageID #:1330
identical lawsuits, thus economizing the expense of litigation over the common issue of whether Defendant's policy to transition individuals from the MFlTD Program to the HSP at the age of 21 violates the ADA and the Rehabilitation Act.
The Court finds that the proposed class satisfies the requirements of Rule 23(b)(2). F. Adequacy ofthe Class Definition
Finally, Defendant raises arguments that the proposed class is vague and indefinite. The Court has disposed of many ofDefendant's arguments in its analysis of the Rule 23 requirements, and need not repeat that analysis. With regard to any remaining arguments, the Defendant raised similar arguments in Colbert v. Blagojevich, No. 07 C 4737, 2008 WL 4442597, at **2-4 (N.D. Ill. Sep. 29, 2008). Colbert rejected those arguments, and the Court finds that reasoning persuasive and adopts it here.
Accordingly, for the foregoing reasons, the Court GRANTS the Plaintiffs' Motion to Certify a Class and certifies a class as follows:
All persons who are enrolled or will be enrolled or were enrolled in the State of Illinois' Medically Fragile, Technology Dependent Medicaid Waiver Program (MF/TD) and when they obtain the age of21 years are subjected to reduced Medicaid funding which reduces the medical level of care which they had been receiving prior to obtaining 21 years. IT IS SO ORDERED.
I
Dated
11

 
 Case: 1:10-cv-03121 Document #: 171 Filed: 08/23/12 Page 1 of 3 PageID #:2076

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

WILLIAM R. HAMPE, by and through his

)

mother I guardian Jill Hampe, RICHARD L.

)

WINFREY, III, ADAM CALE, OLIVIA

)

WELTER, by and through her parents I guardians )

John Welter and Tamara Welter, PHILLIP

)

BARON, by and through his mother I guardian )

Barbara Baron, JESSICA L. LYTLE, by and

)

through her mother I guardian Judith A. Lytle,

)

JACOB STRACKA, by and through his parents I )

guardians, David Stracka and Nicole Stracka,

)

and CHARLES STOUT, individually and on

)

behalf of a class,

)

Plaintiffs,

)

)

vs.

)

)

JULIE HAMOS, in her official capacity

)

as Director of the Illinois Department of

)

Healthcare and Family Services,

)

)

Defendant.

)

No.

10-3121

Judge: Ruben Castillo

Magistrate: Arlander Keys

PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT Now comes the Plaintiffs, individually and on behalf of a class, by and through their attorneys, Robert H. Farley, Jr., Ltd. and Cahill and Associates and move for Summary Judgment pursuant to Fed. R. Civ. P. 56 as to all claims asserted by them because there is no genuine issue of material fact and they are entitled to judgment as a matter of law for the reasons set forth more fully in the accompanying memorandum of law, which is incorporated by reference, as if set fmih in full herein.

1

Case: 1:10-cv-03121 Document #: 171 Filed: 08/23/12 Page 2 of 3 PageID #:2077

Robert H. Farley, Jr. Robert H. Farley, Jr., Ltd. 1155 S. Washington Street Naperville, IL 60540 Phone: 630-369-0103 farleylaw@aol.com
Mary Denise Cahill Cahill & Associates 1155 S. Washington Street Naperville, IL 60540 Phone: 630-778-6500 mdcahill@sbcglobal.net

Respectfully submitted,
Is/ Robert H Farley, Jr. One of the Attorneys for
the Plaintiffs & Class

2

Case: 1:10-cv-03121 Document #: 171 Filed: 08/23/12 Page 3 of 3 PageID #:2078 CERTIFICATE OF SERVICE
I, Robe1i H. Farley, Jr., Attorney for the Plaintiff, deposes and states that he caused the foregoing Plaintiffs' Motion for Summary Judgment to be served by electronically filing said document with the Clerk ofthe Court using the CM/ECF system, this 23rd day of August, 2012.
Is/ Robert H Farley, Jr.
3

 
 Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 1 of 21 PageID #:2682

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

WILLIAM R. HAMPE, by and through his

)

mother I guardian Jill Hampe, RICHARD L.

)

WINFREY, III, ADAM CALE, OLIVIA

)

WELTER, by and through her parents I guardians )

John Welter and Tamara Welter, PHILLIP

)

BARON, by and through his mother I guardian )

Barbara Baron, JESSICA L. LYTLE, by and

)

through her mother I guardian Judith A. Lytle,

)

JACOB STRACKA, by and through his parents I )

guardians, David Stracka and Nicole Stracka,

)

and CHARLES STOUT, individually and on

)

behalf of a class,

)

Plaintiffs,

)

)

vs.

)

)

JULIE HAMOS, in her official capacity

)

as Director of the Illinois Department of

)

Healthcare and Family Services,

)

)

Defendant.

)

No.

10-3121

Judge: Ruben Castillo

Magistrate: Arlander Keys

PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT PURSUANT TO LOCAL RULE 56.1(a)(2)

Now comes the Plaintiffs, by and through their attorneys, Robert H. Farley, Jr., Ltd., and

Cahill & Associates, and pursuant to Local Rule 56.1(a)(2), files this Memorandum of Law in

support of Plaintiffs Motion for Summary Judgment, as follows:

I. INTRODUCTION

The Plaintiff Class are medically fragile disabled persons who are enrolled or will be

enrolled or were enrolled in the State of Illinois Medically Fragile, Technology Dependent

Waiver Program ("MFITD") and when they obtain the age of21 years are subjected to reduced

1

Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 2 of 21 PageID #:2683
Medicaid funding which reduces the level of medical care which they had been receiving prior to attaining 21 year of age. (Doc. 75; Plts. Stmt. 1)
The Defendant, the Illinois Department ofHealthcare and Family Services ("HFS") determined that the Plaintiffs, Hampe, Winfrey, Cale, Welter, Baron, Stracka and Stout, (hereinafter referred to as the "7 Plaintiffs") 1 were all Medicaid eligible (Pits. Stmt. 30) and prior to the age of21 years, due to their disability, required a hospital level of care (Pits. Stmt. 34, 3638) and approved them for funding for community-based skilled nursing services. (Pits. Stmt. 33) The Plaintiffs received approximately 112 hours a week (16 hours per day) ofnursing services plus 336 hours of nursing respite services per year from either a registered nurse (RN) or licensed practical nurse (LPN). (Pits. Stmt. 33) The Defendant determined that the cost of the community-based care skilled nursing services for the Plaintiffs was less than the cost of institutional (hospital) level of care for them. (Pits. Stmt. 48) The Defendant through their agent, the University of Illinois, Division of Specialized Care for Children ("DSCC") calculated that the in-home monthly care costs for the Plaintiffs was estimated to be in the range from $16,621 to $22,669 in contrast to the estimate institutional (hospital) monthly care costs in the range of from $42,971 to $50,884. (Plts. Stmt. 48)
Upon the Plaintiffs obtaining the age of 21 years, without any change in their medical conditions or disability, the Defendant's policy and practice is to reduce the level of Medicaid funding by approximately 50% and cap or limit their funding based on a nursing home level of
1 The 8111 Plaintiff, Jessica Lytle, is not a class member due to the fact that she is not enrolled in the MF/TD waiver. However, Jessica received approval from the Defendant for inhome skilled nursing services prior to her 21st bi1ihday and faced reduced funding upon obtaining the age of 21 years. (Pits. Stmt. 5)
2

Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 3 of 21 PageID #:2684
care as opposed to a hospital level of care. (Plts. Stmt. 54-63) The level of care that the
Plaintiffs need cmmot be provided in a nursing home. (Plts. Stmt. 64-66)
The Seventh Circuit has previously framed the issue to be decided by this Comi with
respect to medically fragile persons seeking extension of services past 21 years of age. The
Seventh Circuit stated:
Although a State is not obliged to create entirely new services or to otherwise alter the substance of the care that it provides to Medicaid recipients in order to accommodate an individual's desire to be cared for at home, the integration mandate may well require the State to make reasonable modifications to the form of existing services in order to adapt them to community-integrated settings. Radaszewski, 383 F.3d at 611.
* * * If the State would have to pay a private facility to care for Eric, for example, and the cost of that placement equaled or exceeded the cost of caring for him at home, then it would be difficult to see how requiring the State to pay for at-home care would amount to an unreasonable, fundamental alteration of its programs and services. (emphasis added) !d. at 614.
After Radaszewski was remanded to the District Court, three Federal District Courts
found that the Defendant violated the ADA and RA by reducing funding for medically fragile
plaintiffs who had been previously enrolled in the MF/TD waiver when they turned 21 years of
age. 2 See Radaszewski v. Maram, 2008 U.S. Dist. LEXIS 24923, *37-41 (N.D. Ill. 2008) (J.
Danah); Grooms v. Maram, 563 F.Supp.2d 840 (N.D. Ill. 2008) (J. Pallmeyer); and Sidell v.
Maram, 2009 U.S. Dist. LEXIS 131324 (C.D. Ill. 2009) (J. McDade).
2 Two other medically fragile plaintiffs have prevailed against the Defendant in Illinois. See: Jones v. Maram, 867 N.E.2d 563 (3rd Dist. 2007) (Illinois Appellate Court affirming lower court granting of preliminary injunction for plaintiff who aged out of MFlTD waiver program and was at-risk of institutionalization); Fisher v. Maram, 06 C 4405 (N.D. Ill.) (January 8, 2009Doc. 118) (J. Guzman) (enjoining Defendant from reducing services for plaintiffwho aged out of MF/TD waiver program).
3

Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 4 of 21 PageID #:2685
Due to the failure of the Defendant to change its policy and practice to reduce funding
when a medically fragile person turns 21 years of age, after not prevailing in Radaszewski,
Grooms and Sidell, this case was brought as a class action by the Plaintiffs in order to obtain
relief for the class.3
The United States of America has filed a Statement oflnterest in this case and asserts as
follows:
[T]his litigation implicates the proper interpretation and application of the integration mandate of title II of the Americans with Disabilities Act (cites omitted).
* **
This litigation involves the defendant's systematic failure to modify its current policies and practices of providing insufficient home-based medical care for Medicaid-eligible adults to prevent institutionalization. Children and young adults in the State of Illinois who have exceptional medical needs are eligible to receive home-based Medicaid services to avoid institutionalization under the State's Medically Fragile/Technology Dependent ("MF/TD") waiver program. Under defendant's regulatory scheme, however, once these individuals reach the age of 21, they are ineligible for the MF/TD waiver. Because the adult waiver program to which a majority of people transition does not provide community-based services at the same level, these individuals may be forced to enter an institution in order to receive the medical services they need to survive. These institutional placements are often more costly to the State. (Doc. 26 at 1-2)
* * *
Defendant's policy of providing inadequate home and communitybased services for the proposed class soley because they reach the age of 21 places them at risk of institutionalization and therefore violates the
3 The State of Illinois through the Illinois Department of Human Services acknowledges the ongoing problem of the "cliff effect" which occurs to the Plaintiffs and the Class when they turn 21. When children in the MFlTD waiver turn 21 years of age and age out of the MFlTD waiver, their only current options for continued long term, Medicaid-funded care are Home Services Program (HSP) services or nursing facilities. Since HSP must stay within nursing home rates, its topmost level of reimbursement for care for both types of care is a bit less than half of what the children are receiving through MF/TD. This "cliff effect" has been an issue for some time. (Plts. Stmt. 52)
4

Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 5 of 21 PageID #:2686
integration mandate of title II. (Id at 7) Since the filing of this lawsuit, this Court has entered Agreed Orders for approximately 23 Plaintiffs and Class members to continue the same level of Medicaid and skilled nursing services past their 21st birthday pending the outcome of this case.4 The Defendant's reduction of Medicaid benefits to the Plaintiffs threatens to force the Plaintiffs into an institution to obtain the care he or she needs, which violates Title II of the ADA and Section 504 of the Rehabilitation Act.
II. STANDARD FOR SUMMARY JUDGMENT Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is proper: "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter oflaw." F.R.C.P. 56(c), Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). In order for an issue to be a genuine issue of fact that may defeat a motion for summary judgment, there must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 250. In addition, the nonmoving party may not "rest upon the mere allegations or denials of his pleading" but, instead, must "set forth specific facts." Anderson, 477 U.S. at 248. III. AMERICANS WITH DISABILITIES ACT and REHABILITATION ACT There are two federal statutes with implementing regulations that, read together, command that the Defendant be prevented from forcing the Plaintiffs into segregated institutions
4 Doc. 11, 33, 49, 58, 73, 81, 83, 85, 87, 89, 95, 98, 104, 106, 108, 112, 114,.118, 146, 155, 166, 167, 169.
5

Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 6 of 21 PageID #:2687
by arbitrarily reducing their community services. Title II of the ADA prohibits public entities from discriminating against persons with
disabilities: No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. Sec. 12132.
A "qualified individual with a disability" is a person who "with or without reasonable modifications to rules, policies or practices" meets the "essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. Sec. 12131 (2). Similarly, Section 504 of the Rehabilitation Act prohibits recipients of federal funds from discriminating based on disability. 29 U.S.C. Sec. 794(a).
The Attorney General of the United States has promulgated regulations to implement both these statutory prohibitions. Under 28 C.F.R. Sec. 35.130(d), a public entity must administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. This regulation was based on the virtually identical regulation previously promulgated by the Attorney General to implement the Rehabilitation Act, 28 C.F.R. Sec. 41.51(d), known as the "integration mandate," requiring that recipients of federal funds administer their programs and activities in the "most integrated setting appropriate to the needs of qualified handicapped persons." Radaszewski v. Maram, 383 F.3d 599, 607 (7111 Cir. 2004). The above-described provisions of the ADA and the Rehabilitation Act, and the integration mandate regulations promulgated under them, are construed and applied in the same manner. Radaszewski v. Maram, 383 F.3d at 607.
6

Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 7 of 21 PageID #:2688
"[U]njustified institutional isolation" of a disabled individual receiving medical care from a state institution constitutes an actionable form of discrimination under Title II of the ADA. Olmsteadv. L.C. ex rel. Zimring, 527 U.S. 581,597-603. (1999) Institutional placement of individuals who can benefit from community-based settings perpetuate "unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life"; and institutional confinement "severely diminishes the everyday life activities .of individuals, including family relations, social contacts ... and cultural emichment." !d. at 600601. Thus a state may violate Title II if it refuses to provide an existing benefit to a disabled individual that would enable that person to live in a more community-integrated setting. See Radaszewski, 383 F.3d at 609; Fisher v. Oklahoma Health Care Auth., 336 F.3d 1175, 1182-84 (lOth Cir. 2003); Townsendv. Quasim, 328 F.3d 511, 516-520 (9th Cir. 2003).
A state is obligated to provide community-based treatment for disabled persons if: (1) the state's treatment professionals find that community-based treatment is appropriate; (2) the affected individuals do not oppose community-based treatment; and (3) placement in the community can reasonably be accommodated, taking into account the state's resources and the needs of others with similar disabilities. See Olmstead, 527 U.S. at 607; Radaszewski, 383 F.3d at 608.
Under the fundamental-alteration defense, the public entity may demonstrate that it should not be required to accommodate the disabled individual by providing the services in the community instead of an institution would affect a fundamental alternation of its programs and services. See Olmstead, 527 U.S. at 603-606; Radaszewski, 383 F.3d at 611, 614.
7

Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 8 of 21 PageID #:2689
A. Plaintiffs Are Eligible For Illinois' Medicaid Program And Are "Qualified lndividual[s] With A Disability"
All the Plaintiffs are recipients of Medical Assistance, commonly known as Medicaid. (Plts. Stmt. 30) The Plaintiffs are "qualified individual[s] with a disability" and "with or without reasonable modifications to rules, policies, or practices ... meets the essential eligibility requirements of services or the participation in programs or activities provided by a public entity." 42 U.S.C. Sec. 12131(2). Prior to their 21st birthday, the Plaintiffs and Class met the
eligibility requirements of services provided by the Defendant, a "public entity" for communitybased services. (Plts. Stmt. 5, 30-33)
In Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004), the Seventh Circuit found that a plaintiff who had been served in the MF/TD waiver program was a qualified individual with a disability. The Seventh Circuit stated:
Eric thus appears to meet these "essential" requirements for at-home care. See Townsend, 328 F.3d at 516 (plaintiff was a "qualified individual with a disability "for purposes of Title II because he was eligible to receive services through State's Medicaid programs, he prefeiTed to receive such services in a community-based setting, and community-based services were appropriate for his needs). Radaszewski, at 613.
* * *
Consequently, we discern no impediment concerning Eric's status as a "qualified individual with a disability" that would preclude the relief his mother seeks under Title II." Jd at 614.
In addition, every District Court in the State of Illinois has found that a person previously enrolled in the MF/TD program has been found to be an "individual with a disability" without any difficulty. See Grooms, at 850-851 ("There is no dispute that Grooms meets all these criteria. . . .Accordingly, Grooms is a qualified individual with a disability); See Radaszewski, 2008 U.S. Dist. LEXIS at *38-39 ("Eric is a qualified individual with a disability under the ADA and the
8

Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 9 of 21 PageID #:2690
RA. Eric and his parents do not oppose community-based treatment and specifically seek to allow Eric to remain at home and seek the same level of care he has been receiving for the last several years."); See Sidell v. Maram, 2009 U.S. Dist. LEXIS 131324 at *26 ("Gretchen is a qualified individual under the ADA and the RA, Gretchen is a qualified Medicaid recipient, Defendant is a public entity under the ADA and RA. Gretchen and Plaintiff do not oppose community treatment.")
B. Community-Based Treatment Is Appropriate For The Plaintiffs And They Do Not Oppose Community Placement.
Prior to the Plaintiffs' 21st birthday, the Defendant found that community-based treatment is appropriate as the Defendant approved funding for "In-home care plan ... for nursing care." (Plts. Stmt. 25, 27, 33) The Plaintiffs do not oppose community placement. (Plts. Stmt. 25-29)
C. Placement In The Community Can Be Reasonably Accommodated As The Cost of Care In A Community Setting Is Less Than The Cost Of Care In An Institutional (Hospital) Setting.
Prior to the Plaintiffs 21st birthday, the Defendant determined that the cost of the community-based care skilled nursing services and other services for the Plaintiffs were less than the cost of institutional (hospital) level of care for them. (Plts. Stmt 48) The Plaintiffs medical needs did not change when they obtained the age of21. (Pits. Stmt. 64)
(i) The Defendant Found That The Plaintiffs Required A Hospital Level of Care Prior To Age 21.
Prior to the Plaintiffs turning 21, the Defendant found that the Plaintiffs required a hospital level of care. (Pits. Stmt. 34) The Defendant's physician determined that the Plaintiffs need a hospital level of care. (Plts. Stmt. 35-37) The Defendant's physicians wrote that for the Plaintiffs, the "alternative care is long-term hospitalization." (Pits. Stmt. 38) Moreover, prior to
9

Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 10 of 21 PageID #:2691
age 21, the Plaintiffs personal physicians stated that the Plaintiffs alternative to medical home care would be admission to a hospital. (Plts. Stmt. 39-46)
(ii) Plaintiffs Medical Condition and Needs Did Not Change Upon Turning 21 Years of Age- Plaintiffs Still Require A Hospital Level of Care.
Upon attaining the age of 21 years, the Plaintiffs medical conditions and needs did not change and they still require a hospital level of care. 5 (Plts. Stmt. 64) The level of care that the Plaintiffs need cannot be provided in a nursing home. (Plts. Stmt. 65)
(iii) Community-Based Care For The Plaintiffs Is Less Than Institutional (Hospital) Cost.
Providing in-home care for the Plaintiffs is less than the institutional (hospital) costs. (Plts. Stmt. 48) Prior to age 21, the Defendant approved community-based services for the Plaintiffs which is less than them receiving institutional costs. (Plts. Stmt. 33, 48) Providing skilled nursing care in their home and community is cheaper than the institutional equivalent. (Plts. Stmt. 33, 48-53)
IV. DEFENDANT'S POLICY AND PRACTICE OF REDUCING MEDICAID BENEFITS TO THE PLAINTIFFS AND CLASS WHEN THEY TURN 21
When children in the MFlTD waiver turn 21 years of age and age out of the MFlTD waiver, their only current options for continued long term, Medicaid-funded c_are are Home Services Program (HSP) services, nursing facilities or hospitals. Since HSP must stay within nursing home rates, its topmost level of reimbursement for care for both types of care is a bit less than half of what the children are receiving through MFITD. This "cliff effect" has been an issue
5 (See Sidell v. Maram, 2009 U.S. Dist. Lexisl31324 at *28) ("While there may not be a hospital that would be available for Gretchen's care, the unavailability of an institution is irrelevant to the question of what level of care Gretchen requires.")
10

Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 11 of 21 PageID #:2692

for some time. 6 (Plts. Stmt 54)
Children in the MF/TD waiver typically transition into the Persons With Disabilities (PWD) waiver at 21 years of age. 7 (Plts. Stmt. 105) The PWD Waiver is part of a larger program called the Home Services Program (HSP).8 (Plts. Stmt 106) The PWD waiver limits medicaid benefits based on a nursing home level of care as opposed to a hospital level of care. (Plts. Stmt. 104) For example, in fiscal year 2010, the Service Cost Maximum ("SCM") for monthly benefits could not exceed the sum of$3,533. (Plt. Stmt. 112) For an individual who has complex medical needs and who cannot be served within the allowable SCM, that person may receive an Exceptional Care Rate ("ECR"). (Plt. Stmt. 113) The ECR rate is based on a nursing home rate (Id) despite the level of care needed by a particular individual.
The Exceptional Care Rate offered to the Plaintiffs were in the range of $5,13 3 to $11,484. The ECR is approximately fifty percent (50%) ofthe cost ofthe services which the Plaintiffs and Class received prior to them obtaining 21 years of age. (Plts. Stmt. 48, 54,57-63, 115) Offering the Plaintiffs one-half the funding for services based only on the fact that they have obtained the age of21 is a violation ofboth Title II ofthe ADA and the Rehabilitation Act.

6 Prior to age 21, the combination of EPSDT, waiver services, services allow children with disabilities to remain in their own homes receive the support they needs. (Plts. Stmt. 83)

and and

other State plan communities and

7 A few young adults transition from the MFTD children's developmental disabilities waiver (DD), however, individuals that require 24-hour nursing care. (Pits. Stmt. 105)

waiver into the adults make that transfer do

with not

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11

Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 12 of 21 PageID #:2693
V. PLAINTIFFS AND CLASS CAN BE REASONABLY ACCOMMODATEDNO FUNDAMENTAL ALTERATION
Granting relief to the Plaintiffs and Class would not fundamentally alter the State's program or services as the costs of community-based services is less than the institutional (hospital) level of care. (Plts. Stmt. 48) The Seventh Circuit in Radaszewski at 611, determined that "the integration mandate may well require the State to make reasonable modifications to the form of existing services in order to adapt them to community-integrated settings."
The State has the ability to make reasonable modifications to the form of existing services in order to provide relief to the Plaintiffs while maximizing medicaid funding from the federal govermnent. The Defendant could make a number of modifications as follows:
A. Defendant Could Amend the MF/TD Waiver To Provide Services Past The Age Of 21 Years.
The Defendant could amend the MF/TD Waiver to provide services past the age of21 years. Such an amendment would not be a fundamental alteration. Currently, the Defendant has limited the MF/TD Waiver to medically fragile and technology dependent individuals under the age of21 years. (Tab "29" HFS-000012) However, States can submit requests for approval to the Centers for Medicare and Medicaid Services ("CMS") to alter the terms of a particular waiver application at any time. See 42 C.F.R Sec. 441.355. Such requests are regularly granted by CMS. See Knowles v. Horn, 2010 WL 517591 (N.D. Tex., Feb. 10, 2010) (citing to Grooms v. Maram, 563 F.Supp.2d 840, 857 (N.D. Ill. 2008) ("[T]he federal government has not denied a single waiver application in the last ten years. Defendant here presents no basis to believe that the federal govermnent would deny the State's application for an amendment in this case and the
12

Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 13 of 21 PageID #:2694
court will concoct one.")9
The Defendant initiated review on 9 states that serve MF/TD children through HCBS
waivers and 3 of the 9 states did not have transition issues from children to adult services as
Iowa, Minnesota and Vermont serve adults under their MF/TD waivers. (Plts. Stmt 135)
Likewise, Illinois could avoid transition issues and the "cliff effect" by amending the MFlTD
waiver to serve the Plaintiffs and Class past the age of 21 years.
B. Defendant Could Amend PWD Waiver To Provide A Hospital Level Of Care.
The Defendant could amend the Persons With Disabilities waiver to provide both a
nursing home level of care and a hospital level of care. In Grooms, at 856-857, the District
Court stated:
The waiver format requires the applying state to specify whether it seeks a waiver "in order to provide home and community-based services to individuals who, but for the provision of such services, would require" care in-among other alternatives-a nursing facility or a hospital. (Pl.'s 56.1 P 1; PWD Waiver Renewal at 3025.) It was the State of Illinois's choice to seek a waiver only for individuals who would require nursing-facility level care; the option to provide a waiver for individuals who would require hospital-level care demonstrates that the federal government would approve a waiver for individuals requiring a hospital level of care. Indeed, there is no indication that a need for care that exceeds what is available in a nursing facility
9 On May 20, 2010, the U.S. Department of Health and Human Services sent a letter to State Medicaid Directors reaffirming the federal commitment to the enforcement of the ADA with respect to Medicaid programs. The letter states that "[t]he HHS Office for Civil Rights is also collaborating with the Department of Justice to advance civil rights enforcement of the ADA and the U.S. Supreme Court's Olmstead decisions." (Plts. Stmt 132 at page 1) The letter fmiher states that "CMS recognizes the importance role that Medicaid plays in State's efforts to ensure compliance with the ADA and Olmstead. (Plts. Stmt.132 at p.l-2) To that end, CMS is offering to provide to States, such as Illinois, "technical assistance ... regarding the design and operations of their Medicaid programs" "to help them meet their obligations under the ADA." (Plts. Stmts 132 at p. 2-3)
13

Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 14 of 21 PageID #:2695
disqualifies an individual for the PWD waiver. See Opinion and Order, Sidell v. Maram, No. 05-1001, at 19-20. The parties agree that the State had discretion when designing the PWD waiver and is, even now, permitted to alter the waiver's terms by submitting an amendment to the federal government for approval. (Def.'s Am. Resp. To Pl.'s 56.1 P 3.) Through the amendment process, the State may add services to the waiver, delete services from the waiver, and/or change the selection of comparable institution for determining cost-neutrality. (!d. P 5.) This would not be the first time Illinois amended its waiver; the State has submitted several waivers to the federal government in recent years. (!d. P 4.) (footnote omitted)
As Judge Dan-ah explained in his decision on remand in the Radaszewski case, requiring the State to submit an amendment need not fundamentally alter the HSP or Medicaid waiver program. Radaszewski, 2008 U.S. Dist. LEXIS 24923, 2008 WL 2097382. In his Federal Rule of Civil Procedure 52 findings, Judge Darrah observed: "Illinois could act in cooperation with the federal government to achieve community-based integration which may otherwise be impeded by existing rules or requirements. Thus, there is no need to adapt existing institutional-based services to a community-based setting that would impose unreasonable burdens or fundamentally alter the nature of Illinois' services and programs." 2008 U.S. Dist. LEXIS 24923,
[WL] at *15. He noted, further, that the federal government has not denied a
single waiver application in the last ten years. 2008 U.S. Dist. LEXIS 24923,
[WL] at *10. Defendant here presents no basis to believe the federal
government would deny the State's application for an amendment in this case and the court will not concoct one. In fact, there are reasons to believe that the federal government would agree to amend the PWD waiver. Defendant does not dispute that the federal government encourages states to use waivers to attempt to achieve community integration. (Pl.'s 56.1 P 9.) Nor has Defendant established that such an amendment would impose significant costs on the State or the federal government. Accordingly, the requirement that HFS amend its waiver does not constitute a fundamental alteration in the PWD program.
Accordingly, Defendant can reasonably accommodate the Plaintiffs and Class by
amending the Persons with Disabilities waiver to provide a hospital level of care.
C. Defendant Has Flexibility To Adjust Cap In The Home Services Program
The Defendant has the flexibility to adjust the cap in the Home Services Program.
14

Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 15 of 21 PageID #:2696
HSP is an umbrella program which includes three waiver programs: the Persons with Disabilities Waiver (PWD), the HIV/AIDS waiver, and the Brain Injury Waiver. Nevertheless, the State has one set of regulations for the HSP. See, e.g., 89 Ill. Admin. Code Sec. 682.100. Nothing in the Illinois regulations governing the HSP actually limits the HSP to a nursing facility/home level. (See Sidell v. Maram, 2007 U.S. Dist. LEXIS 97649 at *4: "The limitation of the waiver document is not coextensive with the 'institutional care' restriction on which eligibility for the HSP is determined. 89 Ill.Admin. Cod 682.1 00" and Sidell v. Maram, 2007 U.S. Dist. LEXIS 97649 at *24: "there is nothing in the State's general eligibility criteria that articulates either a maximum level of disability or a bar against those who require a greater level of institutional care than what can be provided in a nursing home"). Accordingly, without a change to its rules, the state could accommodate the hospital-level-of-care relief plaintiff seeks. 10
D. Reasonable Accommodations The cost to allow the Plaintiffs and Class to continue receiving the same services in the community after age 21 as they did prior to age 21 is less than the cost of caring for them in the proper institutional setting. 11 As such, continuing the funding for these services after age 21 is a reasonable accommodation and would not impose an unreasonable burden on the Defendant or fundamentally alter its programs and services. In Radaszewski v. Maram, 2008 U.S. Dist. LEXIS 24923, after the case was remanded from the U.S. Comi of Appeals, the District Court found that the State of Illinois violated the
10 In Radaszewski, 2008 U.S. Dist. LEXIS 24923, *26, the District Court stated that Illinois law permits exceptional care rates up to a hospital rate.
11 Plts. Stmt. 34-47,48,51-53 15

Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 16 of 21 PageID #:2697
ADA and Rehabilitation Act when Eric Radaszewsli exited the MF/TD program and the State of
Illinois reduced the level of funding which would not adequately fund skilled nursing care for
Eric to remain in his home. The Court stated:
Eric has severe, long-term disabilities. Eric is eligible to receive services through the Illinois Medicaid Program. Eric is at risk of being placed in an institutional setting, and Eric is qualified to receive services through HSP. Community-based treatment is an existing benefit under the Illinois Medicaid Program and is appropriate for Eric. Radaszewski, 2008 U.S. Dist. LEXIS 24923, *39.
* * * The services that Eric requires and presently receives at home are, in substance, the services that would be required in a hospital. The unrebutted evidence clearly shows that the cost of caring for Eric in the proper institutional setting - - a hospital - - would be substantially greater than the cost of allowing Eric to remain in the community and receive the same proper treatment and health care. Allowing Eric to remain in the community can be readily accommodated, taking into Illinois resources and the needs of others with similar disabilities. Illinois can approve an HSP plan for Eric that exceeds the nursing home rate. If otherwise necessary, Illinois could also modify or alter the waiver from the federal government, which encourages the states to use home and community-based waivers to meet the community integration contemplated by Olmstead. Illinois could act in cooperation with the federal government to achieve community-based integration which may otherwise be impeded by existing rules or requirements. Thus, there is no need to adapt existing institutional-based services to a community-based setting that would impose unreasonable burdens or fundamentally alter the nature of Illinois' services and programs.
Illinois has not demonstrated that providing the requested accommodation to Eric would impose an unreasonable burden on the state or fundamentally alter the nature of its programs and services. The evidence offered by the state, ... has not shown that Eric's healthcare needs cannot be reasonably accommodated by community placement considering the state's resources and the needs of others similarly situated. !d. at *39-41.
In Grooms v. Maram, 563 F.Supp.2d 840, 846, (N.D. Ill. 2008), the plaintiff, David
Grooms was dependent upon a ventilator and relied on others for virtually all his care and he was
funded under the MF/TD program and he received approximately $17,000 per month for home
16

Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 17 of 21 PageID #:2698
base skill nursing funding. When he turned 21, the State would only approve an exceptional care rate of $8,517 per month. (Id at 847) For the same reasoning as in all the other cases litigated against the State of Illinois for persons exiting the MF/TD program, the Court found that "HFS could reasonably accommodate Grooms's request for home care" Id. at 856. The Court entered a Permanent Injunction Order against the State of Illinois and in favor of David Groom, so that the State is required to restore the level of approved skill nursing services which he had prior to his 2P1 birthday. (See Grooms v. Maram, No. 06-2211 (N.D. IL), at Doc. 196- Permanent Injunction Order of June 13, 2008))
In Sidall v. Maram, 2009 U.S. Dist. LEXIS 131324 (C.D. Ill. 2009) the plaintiff, Gretchen Sidell was on a ventilator 24 hours a day. When Gretchen aged out of the MF/TD program, the State proposed to reduce her funding of$27,232 per month to $9,289 per month. (Id. at *15-16) The Court found that Gretchen required 24 hours per day skilled nursing care. (Id. at *21) The Court found that the cost of housing Gretchen in a hospital exceeds the cost of caring for her at home with skilled nurses. (Id. at* 18) The Court held that the State's reduction of funding for skilled nursing for Gretchen violated the Americans with Disabilities Act and the Rehabilitation Act. (Id. at. *29)
In Jones v. Maram, 373 Ill.App.3d 184, 867 N.E.2d 563 (3'd Dist. 2007), the Illinois Appellate Court upheld the Circuit Court's entry of a preliminary injunction against the State of Illinois to prevent the State from reducing the funding for the plaintiff who had aged out of the MF/TD program. The plaintiff, Michael Jones "is completely ventilator dependent" and "requires skilled nursing services in order to survive." !d., at 185-186. Under the MFTDC program, Michael received home nursing services at a cost of $17,000 per month and if he was to
17

Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 18 of 21 PageID #:2699 be hospitalized, the cost of the care would be approximately $49,400 per month. The Court stated:
...Michael's condition has not changed, only his age has changed. It seems likely the Department can accommodate the needs of Michael and others like him with reasonable modification to existing programs. The cost of caring for Michael at home would not exceed the cost of the comparable facility capable of meeting his needs, the intensive care unit of a hospital. !d., at 197. In summary, the Defendant can reasonably accommodate the Plaintiffs' and Class' need for continued skilled nursing care past their 21st birthday. As noted above, numerous Federal Courts have addressed this precise issue and have concluded that Illinois can reasonably accommodate the Plaintiffs' continued need for skilled nursing care past their 21st birthday.
18

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V. CONCLUSION Consistent with the Supreme Comi's ruling in Olmstead and the Seventh Circuit's ruling in Radaszewski and the District Court rulings in Radaszewski, Grooms and Sidell, the Plaintiffs and Class are entitled to summary judgment against the Defendant on the their Americans with Disabilities Act (ADA) and Rehabilitation Act (RA) claims and an award of reasonable attorneys fees and costs. Furthermore, after the finding of liability in favor of the Plaintiffs I Class and against the Defendant, this Court should direct the pmiies to meet and confer to attempt to develop a joint remedial plan consistent with this Comi's ruling. 12
Respectfully submitted, Is/ Robert H Farley, Jr. One of the Attorneys for
the Plaintiffs & Class
12 See: Memisolvski v. Maram, 2004 U.S. Dist. LEXIS 16772, *166 (N.D. Ill) (J. Lefkow)
(Medicaid class action lawsuit and after the court found the defendants' policies and practices violated the rights of the plaintiffs, the Court set a status date "to discuss further proceedings relating to an appropriate injunction to remedy the defendants' violations."); Rosie D. v. Romney, 410 F.Supp. 2d 18, 54 (D. Mass. 2006) (Medicaid class action lawsuit and after finding in favor of the plaintiffs on liability, "[t]he parties are ordered to meet within fourteen days to discuss the issues to be addressed in the remedy phase and to attempt to agree on a timetable for doing so."); United States Department ofJustice Statement ofinterest- Doc. 26 at page 13 -("Plaintiffs' claims will require system-wide change in policies to ensure that defendant's Medicaid program allows individuals to live in the most integrated setting appropriate to their needs.")
19

Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 20 of 21 PageID #:2701 Robert H. Farley, Jr. Robert H. Farley, Jr., Ltd. 1155 S. Washington Street Naperville, IL 60540 Phone: 630-369-0103 farleylaw@aol.com Mary Denise Cahill Cahill & Associates 1155 S. Washington Street Naperville, IL 60540 Phone: 630-778-6500 mdcahill@sbcglobal.net
20

Case: 1:10-cv-03121 Document #: 176 Filed: 08/23/12 Page 21 of 21 PageID #:2702 CERTIFICATE OF SERVICE
I, Robert H. Farley, Jr., Attorney for the Plaintiff, deposes and states that he caused the foregoing Plaintiffs' Memorandum of Law in Support ofPlaintiffs Motion for Summary Judgment Pursuant to Local Rule 56.1(a)(2) to be served by electronically filing said document with the Clerk ofthe Court using the CM/ECF system, this 23rd day of August, 2012.
Is/ Robert H. Farley, Jr.
21

 
 Case: 1:10-cv-03121 Document #: 191 Filed: 10/10/12 Page 1 of 2 PageID #:2864

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

WILLIAM R. HAMPE, by and through his

)

mother / guardian Jill Hampe, RICHARD L.

)

WINFREY, III, and ADAM CALE, OLIVIA )

WELTER by and through her parents/guardians )

John Welter and Tamara Welter, PHILLIP

)

BARON, by and through his mother/guardian

)

Barbara Baron, JESSICA L. LYTLE, by and )

through her mother/guardian Judith A. Lytle,

)

JACOB STRACKA, by and through his parents/ )

guardians, David Stracka and Nicole Stracka,

)

and CHARLES STOUT, individually and on

)

behalf of a class,

)

)

Plaintiffs,

)

)

vs.

)

)

JULIE HAMOS, in her official capacity

)

as Director of the Illinois Department of

)

Healthcare and Family Services,

)

)

Defendant.

)

No. 10 C 3121 Judge Ruben Castillo Magistrate Judge Arlander Keys

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

NOW COMES Defendant, JULIE HAMOS, in her official capacity as Director of the

Illinois Department of Healthcare and Family Services, by and through her attorney, LISA

MADIGAN, Attorney General of Illinois, and pursuant to Fed. R. Civ. P. 56, hereby moves this

honorable Court for summary judgment in her favor and against the individual Plaintiffs and

Plaintiff class members, on all claims, defenses and affirmative defenses she asserted. Defendant

states that there is no genuine issue of material fact and that she is entitled to summary judgment

as a matter of law. In support of her motion for summary judgment, Defendant submits the

following: 1) Defendant’s Local Rule 56.1(a)(3) Statement of Material Facts; 2) Defendant’s

Exhibits in Support of Her Motion for Summary Judgment; and 3) Defendant’s Memorandum of

Case: 1:10-cv-03121 Document #: 191 Filed: 10/10/12 Page 2 of 2 PageID #:2865
Law in Support of Her Motion for Summary Judgment. WHEREFORE, for the foregoing reasons and for all the reasons set forth in the materials
filed in support of this Motion for Summary Judgment, Defendant prays that summary judgment be entered in her favor and against the individual Plaintiffs and all Plaintiff class members as to all claims and defenses.
Respectfully submitted, By: /s/ Karen Konieczny
KAREN KONIECZNY #1506277 JOHN E. HUSTON #3128039
Assistant Attorneys General 160 North LaSalle Street, Suite N-1000 Chicago, IL 60601 (312) 793-2380
DATED: October 10, 2012
2

 
 Case: 1:10-cv-03121 Document #: 193 Filed: 10/10/12 Page 1 of 18 PageID #:2890

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

WILLIAM R. HAMPE, by and through his

)

mother / guardian Jill Hampe, RICHARD L.

)

WINFREY, III, and ADAM CALE, OLIVIA )

WELTER by and through her parents/guardians )

John Welter and Tamara Welter, PHILLIP

)

BARON, by and through his mother/guardian

)

Barbara Baron, JESSICA L. LYTLE, by and )

through her mother/guardian Judith A. Lytle,

)

JACOB STRACKA, by and through his parents/ )

guardians, David Stracka and Nicole Stracka,

)

and CHARLES STOUT, individually and on

)

behalf of a class,

)

)

Plaintiffs,

)

)

vs.

)

)

JULIE HAMOS, in her official capacity

)

as Director of the Illinois Department of

)

Healthcare and Family Services,

)

)

Defendant.

)

No. 10 C 3121 Judge Ruben Castillo Magistrate Judge Arlander Keys

DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
NOW COMES Defendant, JULIE HAMOS, in her official capacity as Director of the
Illinois Department of Healthcare and Family Services, by and through her attorney, LISA
MADIGAN, Attorney General of Illinois, and submits her Response to Plaintiffs’ Motion for
Summary Judgment and Memorandum of Law in Support of her Motion for Summary Judgment,
as follows:

Case: 1:10-cv-03121 Document #: 193 Filed: 10/10/12 Page 2 of 18 PageID #:2891
I. STATEMENT OF FACTS. Defendant adopts and incorporates by reference all the facts set forth in Defendant’s
Local Rule 56.1(b)(3)(C) Statement of Additional Material Facts and Defendant’s Local Rule 56.1(a)(3) Statement of Material Facts as the Statement of Facts. II. STANDARD OF REVIEW.
Summary judgment may be an appropriate means by which to resolve issues of law. Flath v. Garrison Public School Dist, 82 F.3d 244, 246 (8th Cir. 1996) (where unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate). As this case is presently postured, it presents issues of law. Under the Third Amended Complaint filed October 28, 2010, the named Plaintiffs and class (hereafter collectively referred to as “Plaintiffs”) claimed that Defendant violated the Americans with Disabilities Act (“ADA”) and its implementing regulation by the “planned reduced funding or actual reduced funding of the home nursing and other services” that they allegedly need in order to avoid institutionalization upon their reaching the age of twenty-one. Hampe v. Hamos, 10 C 3121, U.S. Civil Docket at 54, Paragraphs 210-18 (hereafter “Hampe Civil Docket at ___”). The Plaintiffs claimed that Defendant violated the Rehabilitation Act and its implementing regulation by the “planned reduced funding or actual reduced funding of the home nursing” that they allegedly need in order to avoid institutionalization upon their reaching the age of twenty-one. Hampe Civil Docket at 54, Paragraphs 219-227. The Third Amended Complaint prayed for a declaratory judgment that Defendant’s reduction in funding when aging out of the MF/TD Waiver violates the ADA, Rehabilitation Act and regulations. Hampe Civil Docket at 54, page 54. Plaintiffs prayed for a permanent injunction “to restore the funding to maintain the existing medical services for the Plaintiffs and the putative class prior to aging out of the … [MF/TD] program …” Hampe Civil
2

Case: 1:10-cv-03121 Document #: 193 Filed: 10/10/12 Page 3 of 18 PageID #:2892
Docket at 54, page 55. The Plaintiffs claim that they are entitled to “funding for services” and services that are only available to children under the age of twenty-one. At bottom, all Plaintiffs want in-home private duty nursing services to continue, at a minimum, at the level they had prior to reaching age twenty-one. Regardless of how Plaintiffs cast their claims, a declaratory judgment and permanent injunction to require Defendant to 1) modify the Medicaid program by removing the EPSDT age limit for Plaintiffs, or 2) modify the Home Services Program to allow Plaintiffs to receive the services at the level they received as children is not a reasonable modification under the ADA and Rehabilitation Act. Plaintiffs have not established that they are entitled to judgment in their favor for all the reasons set forth below. III. ARGUMENT. DEFENDANT DOES NOT VIOLATE THE ADA, THE REHABILITATION ACT OR THE REGULATIONS BY ENDING PRIVATE DUTY NURSING SERVICES TO THE PLAINTIFFS AND THE CLASS UPON ATTAINING THE TWENTY-FIRST BIRTHDAY.
A. The Plaintiffs Are Not Qualified Individuals With A Disability. The relevant portion of the ADA states:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132 (Westlaw 2012). The ADA defines a “qualified individual with a disability” as one who “with or without reasonable modifications to rules, policies, or practices … meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2) (Westlaw 2012). In order to determine whether Plaintiffs are a “qualified individual with a disability,” for ADA purposes, the court must first determine
3

Case: 1:10-cv-03121 Document #: 193 Filed: 10/10/12 Page 4 of 18 PageID #:2893
whether the age limit in EPSDT is an essential eligibility requirement of the Medicaid program. See Aughe v. Shalala, 885 F. Supp. 1428, 1432-33 (W.D. Wash. 1995). If the age requirement is essential, only then should the court determine whether Plaintiffs meet the requirement with or without modification. Id.
An eligibility requirement may be deemed “essential” only if the program’s purposes could not be achieved without the requirement. Alexander v. Choate, 469 U.S. 287, 300-01 (1985) (citing Southeastern Community College v. Davis, 442 U.S. 397, 413-14 (1979)). The analysis of whether an individual is “otherwise qualified” and whether an individual has been discriminated against on the basis of disability, is really two sides of the same coin. Choate, 469 U.S. at 299, n.19. The ultimate question will always be whether the relief the plaintiff is seeking is a reasonable modification to the program. Id. Requiring modification is unreasonable when it would necessitate modification of the essential nature of the program, Choate, 469 U.S. at 30206; Davis, 442 U.S. at 410, 413 (1979), or entail unreasonable expense. Choate, Id. at 306-09; accord: Olmstead v. L.C., 527 U.S. 581, 603-07 (1999) (under the ADA the State may resist modifications that entail fundamental alterations of the State’s services and programs). Under these authorities, extending the benefit of EPSDT services to any Medicaid-eligible individual who has passed the twenty-first birthday is not a reasonable modification.
The Medicaid Act, 42 U.S.C. § 1396 et seq. (Westlaw 2012), was established to allow states to provide medical assistance to eligible individuals and families with insufficient income or resources to pay for certain medical services. Id.; Harris v. McRae, 448 U.S. 297, 301 (1980). A state’s participation in the Medicaid program is voluntary, but once a state elects to participate, it must abide by all federal requirements and standards as set forth in the Medicaid Act. Wilder v. Virginia Hospital Ass’n, 496 U.S. 498, 502 (1990). Illinois participates in Medicaid.
4

Case: 1:10-cv-03121 Document #: 193 Filed: 10/10/12 Page 5 of 18 PageID #:2894
One such requirement of the Medicaid Act is EPSDT. Congress directed the single state Medicaid agency to ensure that certain health services are available to children. The EPSDT provisions of the Medicaid program obligate the Medicaid agency to make certain routine healthcare like screening services and immunizations available to children. 42 U.S.C. §§ 1396a(a)(43); 1396d(r). Title XIX requires a State participating in the Medicaid program, as a condition of its participation, to include EPSDT as part of its Title XIX State Medicaid Plan. 42 U.S.C. §§ 1396a(a)(43); 1396a(a)(10) (Westlaw 2012); Collins v. Hamilton, 349 F.3d 371, 374 (7th Cir. 2003). EPSDT is not a program; it is a service. Collins, Id.
The Act of Congress defines “screening services” at 42 U.S.C. § 1396d(r)(1)-(4). Screening services include a comprehensive health and developmental history that includes an assessment of physical and mental health development, Section 1396d(r)(1)(B)(i), a comprehensive unclothed physical exam, Section 1396d(r)(1)(B)(ii), immunizations, laboratory tests, health education, vision services, dental services and hearing services. Section 1396d(r)(1)(B); (2); (3); (4). Screening services are to be made available at intervals which meet reasonable professional practices, or as medically necessary. Section 1396d(r)(1)(A); (2)(A); (3)(A); (4)(A).
The Act of Congress imposes no general requirement on the single state Medicaid agency to provide screening services to all Medicaid-eligible children. 42 U.S.C. §§ 1396a(a)(43); d(r) (Westlaw 2012). At Section 1396a(a)(43)(A) (Westlaw 2012), the Act of Congress requires that the State Medicaid plan provide for “informing all persons in the State who are under the age of 21 … of the availability of … [EPSDT] services …” Section 1396a(a)(43) also states, in pertinent part, that with respect to EPSDT the single state Medicaid agency shall:
5

Case: 1:10-cv-03121 Document #: 193 Filed: 10/10/12 Page 6 of 18 PageID #:2895
(B) provid[e] or arrang[e] for the provision of such screening services in all cases where they are requested, (C) arrang[e] for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services ... 42 U.S.C. § 1396a(a)(43)(B); (C) (Westlaw 2012) (emphasis added). 42 U.S.C. § 1396a(a)(43)(D), obligates the single state Medicaid agency to report to the federal Secretary of HHS certain information respecting EPSDT services provided during each fiscal year, including: the number of children receiving child health screening services, the number of children referred for corrective treatment and the State’s results in meeting the participation goals set for it by the Secretary of HHS. 42 U.S.C. § 1396a(a)(43)(D)(i), (ii), (iv) (Westlaw 2012). The Act of Congress also defines the term EPSDT to include: (5) Such other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State [Medicaid] plan. 42 U.S.C. § 1396d(r)(5) (Westlaw 2012). Under EPSDT, a Medicaid-eligible child shall receive services and treatment allowable in 42 U.S.C. § 1396d(a) to correct or ease the conditions discovered through the periodic screenings, whether the State includes the corrective services in its State Medicaid plan or not. (Emphasis supplied). The Act of Congress directs the federal Secretary of HHS to set annual participation “goals” for each state in order to measure how many Medicaid-eligible children are participating in EPSDT services. Section 1396d(r)(5). First, the language Congress used could not be plainer. EPSDT is a separate provision to have certain Medicaid services available to children under the age of 21. 42 U.S.C. §§ 1396d(a)(4); 1396a(a)(10) (Westlaw 2012). Congress did not create EPSDT to clothe the
6

Case: 1:10-cv-03121 Document #: 193 Filed: 10/10/12 Page 7 of 18 PageID #:2896
Medicaid agency with the authority to operate home and community-based services programs. 42 U.S.C. §§ 1396a(a)(43); d(r) (Westlaw 2012). Rather, that authority lies in 42 U.S.C. § 1396n(c) (Westlaw 2012). Second, under the plain language of Title XIX, Congress clearly intended to confer the benefit of certain services, such as designated out-of-State plan corrective and ameliorative services, on children only. Sections 1396a(a)(43); d(r) (Westlaw 2012). There is no reason for EPSDT or 42 U.S.C. § 1396d(a) to exist if the State is obligated to make the entire basket of every conceivable medical service accessible to each Medicaid-eligible individual. Third, there is no general Medicaid counterpart to EPSDT’s requirement that medical services, including out-of-State plan services, be provided whenever need for such services has been demonstrated. In fact, other Medicaid benefits are defined by age. See e.g., 42 U.S.C. § 1396d(a)(B) (Westlaw 2012) (IMD exclusion; certain services not available to Medicaid recipients under the age of 65 who reside in IMDs). Fourth, the EPSDT statutes target the single state Medicaid agency’s obligation to provide EPSDT services and treatment to physical and mental illnesses and conditions discovered by the screening services. 42 U.S.C. § 1396d(r)(5) (emphasis added); 42 U.S.C. § 1396a(a)(43)(C). In other words, EPSDT does not impose a wholesale, generic obligation on Defendant to uncover conditions in children that may require correction or amelioration. Rather, EPSDT obligates Defendant to act after the results of a healthcare professional’s screening demonstrate a “need” for corrective treatment. 42 U.S.C. § 1396a(a)(43)(C) (Westlaw 2012). Fifth, Title XIX directs the federal Secretary of HHS to set annual participation goals in EPSDT services for Medicaid-eligible children in the State, i.e., a yardstick, by which the federal government can measure the amount of EPSDT services provided. 42 U.S.C. §§ 1396a(a)(43); d(r)(5) (Westlaw 2012). The EPSDT statutes do not authorize the Secretary of HHS to order the single State Medicaid agency to provide services, or
7

Case: 1:10-cv-03121 Document #: 193 Filed: 10/10/12 Page 8 of 18 PageID #:2897
to create a program for the provision of services. Lastly, Congress’ intent in enacting in EPSDT was both to benefit Medicaid-eligible children and to preserve Medicaid funds. EPSDT is for children and any waiver of the age limit contained in the Medicaid Act is at odds with Congress’ intent in devising a set of services available to children only.
Having concluded that the age limit is an essential eligibility requirement, the court must next determine, as part of the ADA analysis, whether the Plaintiffs meet the age requirement with or without modification. Aughe v. Shalala, 885 F. Supp. 1428, 1432 (W.D. Wash. 1995). Obviously, once each Plaintiff reaches his or her twenty-first birthday, they cannot meet the EPSDT age limit without modification. Neither waiving the age limit for Plaintiffs, nor requiring Defendant to cover private duty nursing for them beyond the twenty-first birthday, nor requiring Defendant to provide “funding” at a level they enjoyed as children, is a reasonable modification. First, the State of Illinois cannot waive the requirements of an Act of Congress. Aughe, 885 F. Supp. at 1431. Second, a modification that rewrites an Act of Congress is not reasonable as a matter of law. Id. at 1432. Third, a modification is not reasonable when it compels the State to cover an optional Medicaid service, i.e., private duty nursing, that Congress permitted the State to cover or not. 42 U.S.C. §§ 1396a(a)(10)(A); 1396d(a)(8) (Westlaw 2012). See Defendant’s Local Rule 56.1(b)(3)(C) SMF at Nos. 139, 142-43, 154-55; Defendant’s Local Rule 56.1(a)(3) SMF at Nos. 13, 16-17, 27-28 (Illinois’ Title XIX State Medicaid Plan and MF/TD Medicaid Waiver do not include private duty nursing as a covered Medicaid service). Fourth, modifications, as previously stated, are not reasonable if they impose undue financial and administrative burdens or if they require a fundamental alteration in the nature of the program. Alexander v. Choate, 469 U.S. 287 (1985); Southeastern Community College v. Davis, 442 U.S. 397 (1979); Olmstead v. L.C., 527 U.S. 581 (1999). The relief Plaintiffs seek, if granted, would
8

Case: 1:10-cv-03121 Document #: 193 Filed: 10/10/12 Page 9 of 18 PageID #:2898
fundamentally alter the structure of Title XIX. Title XIX is a program of cooperative federalism; a State cannot be compelled to fund services that Congress itself is unwilling to fund. Harris v. McRae, 448 U.S. 297, 308-310 (1980). General civil rights statutes, like the ADA and Rehabilitation Act, do not evidence Congress’ intent to impose massive funding obligations on States that Congress itself has chosen not to fund. Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 22-27 (1981) (citing Harris v. McRae, 448 U.S. 297, 309 (1980)); Duquette by Duquette v. Dupuis, 582 F. Supp. 1365, 1369-1372 (D.N.H. 1984).
Moreover, under Choate, 469 U.S. at 301-09 (1985), the State need not alter the benefits offered under its Medicaid program simply to meet the reality that disabled persons have greater medical needs because, to conclude otherwise, would be to find that the Rehabilitation Act requires that States view certain medical conditions as more important than others and more worthy of cure through government subsidization. Choate, 469 U.S. at 302-04. Choate found that Tennessee’s limitation on hospital days covered by Medicaid does not offend the Rehabilitation Act because the denial of benefits, even when left unmodified, was not linked in any way to those plaintiffs’ particular disabilities. Choate, Id. at 302-03, 309; accord: Frances J. by Murphy v. Bradley, 1992 WL 390875 *7 (N.D. Ill. December 15, 1992) vacated on other grounds Frances J. v. Wright, 19 F.3d 337 (7th Cir. 1994) (elderly disabled who claimed that they did not receive enough in benefits under certain home and community-based Medicaid waiver program because of the program caps linked to the assessment tool the State used to grant those benefits, failed to state a claim under Rehabilitation Act; plaintiffs were not deprived of meaningful access to the benefits because the Medicaid Act gives the states substantial discretion in defining the allocation of benefits).
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Furthermore, once the court determines that the EPSDT age limit is an essential eligibility requirement that is mandatory and non-waivable, the court cannot give Plaintiffs the type and quantity of services they received as children, i.e., private duty nursing, by calling it a “reasonable modification” to some other Medicaid-funded program. For all the reasons set forth above, if it is a not a reasonable modification to extend the benefits of EPSDT services to individuals simply because they passed the twenty-first birthday, it is not a reasonable modification to the Home Services Program to revive the benefits of EPSDT for some individuals so that they can continue the status quo they enjoyed as children. Like Alexander v. Choate, 469 U.S. 287 (1985), the funding caps in place in the Home Services Program, see e.g., Plaintiffs’ Local Rule 56.1(a)(3) SMF at Nos. 104-116, even when left unmodified, are not linked to the Plaintiffs’ particular disabilities. Defendant has not denied Plaintiffs meaningful access to the Home Services Program.
Lastly, if the State of Illinois is required to continue funding out-of-State plan services for an individual simply because he or she is beyond the twenty-first birthday, the financial impact on the State of Illinois is far from minimal. The permanent injunctive relief sought here would require Defendant to maintain private duty nursing services for the Plaintiffs at the current level they enjoy as the minimum service level. Hampe Civil Docket at 54, pages 54-55. Presumably, a system must be in place by which Defendant can evaluate whether Plaintiffs have established a medical need for private duty nursing services, because private duty nursing is listed in 42 U.S.C. § 1396d(a). See Bontrager v. Indiana Family and Social Services Administration, ___ F.3d ___, 2012 WL 4372524 (C.A. 7th (Ind.) September 26, 2012). The Plaintiffs are or were participating in a federal Medicaid Waiver for Medically Fragile and Technology Dependent Children (“MF/TD”) and, presumably, want the case management services they received
10

Case: 1:10-cv-03121 Document #: 193 Filed: 10/10/12 Page 11 of 18 PageID #:2900
together with other MF/TD Waiver services to continue. Moreover, there is a putative class in Harris v. Hamos, 12 C 7105 (N.D. Ill.), seeking continuation of private duty nursing services after they attain age twenty-one. See Harris Civil Docket at Doc. No. 1. The relief sought in Hampe together with the relief sought in Harris, if granted, would impose massive funding obligations on Defendant that Congress declines to fund because of the EPSDT age limitation, as previously stated. As in Choate, the request to modify Tennessee’s Medicaid program by removing the cap on the duration of hospital days covered “would be far from minimal” and well beyond the accommodations that were required under Davis. Alexander v. Choate, 469 U.S. 287, 308 (1985). Given the financial impact, the State can properly resist the broad-based distributive decision that would be required. Id.
B. Plaintiffs Are Not “Otherwise Qualified” Within The Rehabilitation Act. The Rehabilitation Act, at 29 U.S.C. § 794(a) (Westlaw 2012), requires Plaintiffs to show 1) that they are disabled within the meaning of the Act, 2) that they are “otherwise qualified” for the services sought, 3) that they were excluded from the services “solely by reason of her or his disability,” and 4) that the program in question receives federal funds. Aughe v. Shalala, 885 F. Supp. 1428, 1431 (W.D. Wash 1995). Defendant adopts all the factual matter, arguments and authorities contained in pages 3 through 11 of this combined Response and Memorandum of Law to demonstrate that Plaintiffs cannot satisfy the second requirement set forth above. Since the Rehabilitation Act requires the court to determine both whether an individual meets all the essential eligibility requirements and whether reasonable modifications exist, Aughe, id. at 1431, all the matters set forth above also establish that Plaintiffs are not “otherwise qualified” with the Rehabilitation Act.
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C. Defendant Did Not Discriminate Against Plaintiffs On The Basis Of Disability.
Even if Plaintiffs were “qualified individuals with a disability” under the ADA or “otherwise qualified” individuals under the Rehabilitation Act, they cannot show that they been denied the benefits of EPSDT, or any Medicaid services because of disability. The ADA, at 42 U.S.C. § 12132 (Westlaw 2012), provides in pertinent part that “ … no qualified individual with a disability shall, by reason of such disability, be denied the benefits of the … services … of a public entity.” (Emphasis supplied). The Rehabilitation Act, at 29 U.S.C. § 794(a) (Westlaw 2012), provides in pertinent part that no otherwise qualified individual with a disability “shall, solely by reason of her or his disability, be excluded from the participation in … any program or activity receiving Federal financial assistance ...” (Emphasis supplied). When, as here, a neutral rule incidentally disqualifies a disabled individual from participation in services, then the neutral application of that rule, i.e., the EPSDT age limit, cannot be said to be a decision actuated “solely on the basis of disability.” Southeastern Community College v. Davis, 442 U.S. 397, 400, 405 (1979); Wimberly v. Labor and Industrial Relations Commission of Missouri, 479 U.S. 511, 51617 (1987); Sandison v. Michigan High School Athletic Ass’n, 64 F.3d 1026, 1030-34, 1036-37 (6th Cir. 1995). The phrase “by reason of” requires a showing of proximate causation that is lacking in this case. Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 268 (1992).
D. Participation In The MF/TD Waiver Confers No Right to Receive EPSDT Services Beyond The Age Of Twenty-One.
Under 42 U.S.C. § 1396n(c), States may apply to the Secretary of HHS for a “waiver” to allow the State to make medical assistance payments for home or community-based services approved by the Secretary and provided pursuant to a written plan of care to Medicaid-eligible
12

Case: 1:10-cv-03121 Document #: 193 Filed: 10/10/12 Page 13 of 18 PageID #:2902
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, nursing facility, or intermediate care facility for the mentally retarded (“ICF/MR”) the cost of which would be reimbursed under the State’s Title XIX plan. 42 U.S.C § 1396n(c)(1). Illinois has in effect a federally-approved Medicaid waiver to provide to allow eligible medically fragile, and technology dependent children i.e., persons up to age twenty-one to remain in their homes known as the Illinois Section 1915(c) Home and Community-based Services Waiver for Children that are Medically Fragile, Technology Dependent. The Defendant’s proposed renewal to the MF/TD Waiver is under discussion with representatives from the federal Centers for Medicare and Medicaid Services.
Under the MF/TD Waiver, the services included: respite, specialized medical equipment and supplies, environmental modifications, family training, nurse training, placement maintenance counseling and medically supervised day care. Hampe Civil Docket at 173-5, Plaintiffs’ Exhibit No. 29 at HFS 000003; Defendant’s Local Rule 56.1(b)(3)(C) SMF at Nos. 154-55; Defendant’s Local Rule 56.1(a)(3) SMF at Nos. 27-28. Nursing is the primary service received by waiver participants, but “it is not a waiver service.” Id. (Emphasis supplied). The Plaintiffs are clearly seeking relief that is not available to them through the MF/TD Waiver. Id. Participation in the MF/TD Waiver is neither material nor relevant to the disposition of the Plaintiffs’ claims. Moreover, to the extent Plaintiffs argue that Defendant “can” or “should” or “could” apply to CMS to amend various federal Medicaid Waivers to secure terms that Plaintiffs would like incorporated, Hampe Civil Docket at 176, pages 12-15, that is also neither relevant nor material to their claims. Indeed, once the Secretary of HHS approves the waiver pursuant to 42 U.S.C. 1396n(c), the federally-approved waiver document controls all the terms and
13

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conditions for all home and community-based services offered. Bertrand v. Maram, 2006 WL 2735494 at *6 (N.D. Ill. September 25, 2006) (affirmed) Bertrand ex rel. Bertrand v. Maram, 495 F.3d 452 (7th Cir. 2007). Once the federal government approves the home and communitybased services waiver, courts will not second-guess or undo its provisions. See Id. Under the authorities above, Plaintiffs’ arguments would appear to be a concession that the court cannot order Defendant to create, extend or amend a federal Medicaid Waiver in any particular manner.
E. Olmstead v. L.C., 527 U.S. 581 (1999) Does Not Aid Plaintiffs. Olmstead v. L.C., 527 U.S. 581 (1999) does not help Plaintiffs. In Olmstead, a group of mentally disabled individuals brought suit against State officials under the Americans with Disabilities Act. The Court characterized the issue as one concerning the proper construction of the anti-discrimination provision of 42 U.S.C. § 12132. Olmstead, 527 U.S. at 587. The Court stated that no constitutional issues were before it, id. at 588, and expressly stated that it was not ruling on the validity of the regulations issued by the Attorney General. Id. at 592. Under Olmstead, officials of the State of Georgia were found to have violated Title II of the ADA by failing to grant a reasonable modification to the State’s Medicaid program in the form of placing institutionalized persons into existing and unfilled community-based services programs. Id. at 601-03. Nevertheless, the Supreme Court held that the State is permitted to resist modifications that entail fundamental alterations of the State’s services and programs. Id. at 603-07. The Court held that “unjustified isolation … is properly regarded as discrimination based on disability.” Id. at 597. Olmstead is not a mandate to furnish all services to Medicaid-eligible persons in a home or community-based setting. Id. at 605. The Court also ruled that the States are obligated to mete out existing services with an “even hand” and “equitably.” Olmstead, 527 at 597, 605. The even handed treatment requirement of the ADA means that the State need not
14

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create new programs for anyone, because federal court review of the State’s judgment about establishing or declining to establish new programs raises grave constitutional concerns. Id. at 612-13 (Kennedy, J. concurring). The Court stated that the “States must adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.” Id. at 603, n.14 (emphasis supplied).
As previously stated, private duty nursing is not a Medicaid-covered service under Illinois’ Title XIX State Plan. Nothing in Olmstead requires Defendant to provide optional Medicaid services the State of Illinois has chosen not to cover. Nothing in Olmstead obligates Defendant to create a program for individuals who age-out of EPSDT services. Olmstead does not stand for the proposition that creating a program for persons who are not eligible for any services is a reasonable modification; rather, the modification Olmstead found to be reasonable was the affirmative act of taking qualified individuals from an institution into existing community placements for which they were eligible. No such facts are present in this case. Moreover, the medical evidence Plaintiffs presented here, even if competent, is not material to whether Plaintiffs could qualify for any other Medicaid programs or services.
F. 28 C.F.R. §§ 35.10(d) and 41.51(d) Do Not Create Any Right To Integration.
The integration regulations, 28 C.F.R. §§ 35.10(d) and 41.51(d) (Westlaw 2012) do not impose any affirmative obligations on the Defendant independent of the ADA and Section 504. Regulations creating rights independent of any federal statute are not enforceable laws. Mungiovi v. Chicago Housing Authority, 98 F.3d 982, 983-84 (7th Cir. 1996). In Alexander v. Sandoval, 532 U.S. 275, 285-93 (2001), the Supreme Court held that federal agencies were authorized to “effectuate” Title VI by issuing regulations, but that they could only effectuate
15

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rights already created by statute and could not themselves create new rights or rights of action. See also Olmstead v. L.C., 527 U.S. 581, 592 (1999). Both 28 C.F.R. §§ 35.130(d) and 41.51(d) state that the “public entity” and “recipient” shall administer services, program and activities “in the most integrated setting appropriate to the needs” of qualified individuals with disabilities. These regulations, compared to the ADA and Rehabilitation Act, previously cited, impose new affirmative obligations that have no textual support in the statutes. Compare 42 U.S.C. § 12132 and 29 U.S.C. § 7949(a) with 28 C.F.R. §§ 35.130(d) and 41.51(d) Under these authorities, since the integration regulations create new rights and new causes of action that the ADA and Rehabilitation Act themselves do not recognize, they are not enforceable and do not authorize the relief Plaintiffs seek here.
G. Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) Does Not Aid Plaintiffs. The Seventh Circuit’s decision in Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) does not aid Plaintiffs. In Radaszewski, the Seventh Circuit reversed the lower court’s dismissal of Plaintiff’s ADA claim and reversed a judgment on the pleadings for Defendant under the Rehabilitation Act that the claim failed as a matter of law. The claims asserted in Radaszewski were claims for a reasonable modification for an individual and are not similar to the claims asserted here on behalf of the Plaintiff class. In Radaszewski, the Seventh Circuit did not merely confine itself to a determination that the Radaszewski complaint stated a claim for relief and could proceed to trial. Instead, the court held as a matter of law, without an answer from the Defendant, and without the benefit of a fully developed record that, first, Eric Radaszewski is a “qualified individual with a disability” under the ADA and Rehabilitation Act. Radaszewski, 383 F.3d at 612-613 (“[f]or present purposes it appears undisputed that Eric is qualified for the receipt of home services through the HSP ...”).
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Second, the Seventh Circuit held as a matter of law, and without the benefit of a fully developed record that Eric Radaszewski was “qualified” i.e., eligible for Defendant’s Home Services Program. Id. at 613. Third, the Seventh Circuit found, as a matter of law, that an inference could be drawn from the pleadings that Eric Radaszewski satisfied the Olmstead criteria. Id. at 614-615. Fourth, the Seventh Circuit described the services Eric Radaszewski received before he turned twenty-one. The court stated that Eric was in the Medically Fragile and Technology Dependent Children’s Waiver and received “private duty shift nursing” through that Medicaid Waiver. Id. at 602. It was not clear that private duty nursing was an MF/TD service at that time. In any event, since 2001 when Illinois’ Title XIX State Medicaid plan was amended to remove optional private duty nursing services, private duty nursing is available only to children through the EPSDT requirements, whether a child is in the MF/TD Waiver or not. Defendant’s Local Rule 56.1(b)(3)(C) SMF at Nos. 139, 142-43, 154-55; Defendant’s Local Rule 56.1(a)(3) SMF at Nos. 13, 16-17, 27-28. Finally, Radaszewski and its progeny were claims for ADA and Rehabilitation Act modifications by individuals in individual cases. To the extent Plaintiffs argue these cases can be read for the proposition that the ADA and Rehabilitation Act authorize the court to rewrite an Act of Congress and modify Defendant’s EPSDT obligations, or the Home Services Program, to extend the benefits of EPSDT and MF/TD to individuals who have passed the twenty-first birthday, e.g., Hampe Civil Docket at 176, pages 3, 4, 6, 8, 9, 10 at n.5, 12, 13, 14, 15-18, all the arguments and authorities set forth in this combined Response and Memorandum of Law establish that such modifications are not reasonable.
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IV. CONCLUSION.

WHEREFORE, for the foregoing reasons, Defendant prays that Plaintiffs’ Motion for

Summary Judgment be denied and that the Defendant’s Motion for Summary Judgment be

granted.

Respectfully submitted,

LISA MADIGAN Attorney General of Illinois

DATED: October 10, 2012

By: /s/ Karen Koniecazny_______ KAREN KONIECZNY #1506277 JOHN E. HUSTON #3128039 Assistant Attorneys General 160 N. LaSalle St. Suite N-1000 Chicago, IL 60601 (312) 793-2380

18

 
 Hampe v. Hamos, 917 F.Supp.2d 805 (2013)

917 F.Supp.2d 805 United States District Court,
N.D. Illinois, Eastern Division.
William R. HAMPE, et al., Plaintiffs, v.
Julie HAMOS, Director, Illinois Department of Healthcare and Family Services, Defendant.
No. 10 C 3121. | Jan. 8, 2013.
Synopsis Background: Disabled individuals brought class action against Director of Illinois Department of Healthcare and Family Services (DHFS), alleging that DHFS’s planned or actual reduced funding of their in-home skilled nursing services violated Americans with Disabilities Act (ADA) and Rehabilitation Act (RA). Parties cross-moved for summary judgment.
Holdings: The District Court, Ruben Castillo, J., held that:
[1] fact issue existed as to whether plaintiffs were qualified individuals with disabilities;
[2] fact issue existed as to whether plaintiffs requested accommodation was reasonable; and
[3] DHFS could not rely on fundamental alteration defense.
Motions denied.
Attorneys and Law Firms
*807 Robert Hugh Farley, Jr., Robert H. Farley, Jr., Ltd., Mary Denise Cahill, Cahill and Associates, Naperville, IL, for Plaintiffs.
Kristen Kocourek, pro se.
Karen Elaine Konieczny, John E. Huston, Illinois Attorney General’s Office, Chicago, IL, for Defendant.
Opinion

MEMORANDUM OPINION AND ORDER
RUBEN CASTILLO, District Judge.
Eight medically fragile disabled individuals currently receive funding from the Illinois Department of Healthcare and Family Services (“DHFS”) for approximately 16 hours a day of in-home skilled nursing services. These services allow the disabled individuals, Plaintiffs in this case, to avoid constant hospitalization. As of their twenty-first birthdays, Plaintiffs have faced a significant reduction in funding for those services. Accordingly, William R. Hampe, by and through his mother/guardian, Jill Hampe; Richard L. Winfrey, III; Adam Cale; Olivia Welter, by and through her parents/guardians, John and Tamara Welter; Phillip Baron, by and through his mother/guardian, Barbara Baron; Jessica L. Lytle, by and through her grandmother/guardian Judith A. Lytle; Jacob Stracka, by and through his parents/guardians, David and Nicole Stracka; and Charles Stout bring this class action on behalf of themselves and all other similarly situated individuals (collectively, “Plaintiffs”) against Julie Hamos (“Defendant”) in her official capacity as Director of DHFS. (R. 54, Third Am. Compl.) Plaintiffs allege that Defendant’s policies and practices violate the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), Plaintiffs seek declaratory and injunctive relief. (R. 54, Third Am. Compl. at 54–55.) Both parties have moved for summary judgment, each claiming that it is entitled to judgment as a matter of law. (R. 171, Pls.’ Mot.; R. 191, Def.’s Mot.) Presently before the Court are these cross-motions for summary judgment. For the reasons set forth herein, both motions are denied.

RELEVANT FACTS1

1

The Court takes its facts from Plaintiffs’ Local Rule

56.1 Statement of Material Facts (“Pls.’ Facts”),

Defendant’s Local Rule 56.1 Response (“Def.’s Resp.

to Pls.’ Facts”) and Statement of Additional Facts

(“Def.’s Add’l Facts”), and Plaintiffs’ Response to

Defendant’s Statement of Additional Facts (“Pls.’ Resp.

to Def.’s Facts”). Defendant’s material facts in support

of her motion for summary judgment are identical to

her Additional Facts, and Plaintiffs response to

Defendant’s material facts is identical to their Response

to Defendant’s Additional Facts. Thus, for the sake of

clarity, the Court will only cite to the set of facts

surrounding Plaintiffs’ motion.

1

Hampe v. Hamos, 917 F.Supp.2d 805 (2013)
This case proceeds on behalf of a certified class comprised of:
*808 All persons who are enrolled or will be enrolled or were enrolled in the State of Illinois’ Medically Fragile, Technology Dependent Medicaid Waiver Program (MF/TD) and when they obtain the age of 21 years are subjected to reduced Medicaid funding which reduces the medical level of care which they had been receiving prior to obtaining 21 years.
(R. 75, Mem. Op. at 11.) Plaintiff Jessica Lytle is not a class member because she was not enrolled in Illinois’ MF/TD waiver prior to turning twenty-one years of age. (Def.’s Resp. to Pls.’ Facts ¶ 5.) Lytle received funding for levels of in-home skilled nursing services similar to those received by the class members through the Illinois Department of Children and Family Services as adoption assistance because she was adopted by her grandmother. (R. 173, Pls.’ L.R. 56.1 Materials, Ex.7 ¶ 5.)
I. Medicaid Medicaid is a joint federal- and state-funded program that provides necessary medical assistance to disabled individuals whose income and resources are insufficient to meet the cost of the medical care they require. See 42 U.S.C. § 1396; 305 Ill. Comp. Stat. 5/5–1. States that opt to participate in Medicaid must operate the program in conformity with federal statutory and regulatory requirements and must submit a Medicaid plan to the Department of Health and Human Services (“HHS”) for approval. 42 U.S.C. §§ 1396, 1396a. In Illinois, DHFS is the state agency responsible for operating Medicaid. 305 Ill. Comp. Stat. 5/2–12(4); (Def.’s Resp. to Pls.’ Facts ¶ 70). Illinois pays Medicaid-enrolled providers for all mandatory Medicaid services provided to eligible persons, but not for all optional services. (Pls.’ Resp. to Def.’s Add’l Facts ¶¶ 141–42.) Mandatory Medicaid services are those that Congress requires participating states to provide; these services include, among others, medically necessary hospitalizations, inpatient hospital services, physician services, long-term care (nursing facility) for individuals over twenty-one years of age, and Early and Periodic Screening, Detection and Treatment (“EPSDT”) services. 42 C.F.R. § 440.1 et seq.; (Pls.’ Resp. to Def.’s Add’l Facts ¶ 140; Ex. A to Pls.’ Resp. to Def.’s Add’l Facts at 29). Medicaid-eligible admissions to pediatric hospitals are reimbursed on a per diem basis in

Illinois. Ill. Admin. Code tit. 89, §§ 148.250–148.300. Medicaid-eligible admissions to general hospitals are reimbursed at a diagnosis-related group rate. Ill. Admin. Code tit. 89, § 149.50.
HHS grants Home and Community–Based Services (“HCBS”) waivers that allow a state to provide services not otherwise covered by the state’s Medicaid plan as an alternative to institutionalizing individuals within a target group. 42 U.S.C. § 1396n(c)(1). Illinois has implemented a total of nine HCBS waivers, including the MF/TD waiver and the Persons with Disabilities waiver in the Home Services Program (“HSP”). (Def.’s Resp. to Pls.’ Facts ¶ 74.)
A. Services for children EPSDT services are designed to serve as Medicaid’s well child program and provide *809 regular screenings, immunizations, and primary care services. 42 U.S.C. § 1396d(r); Ill. Admin. Code tit. 89, § 140.485. Individuals over the age of twenty-one are not eligible for EPSDT services. 42 U.S.C. § 1396d(a)(4)(B). Through EPSDT, Congress requires states to provide payment for any medically necessary service, including optional services, to Medicaid-eligible children under the age of twenty-one. (Def.’s Resp. to Pls.’ Facts 182.) When an EPSDT screening detects a problem, Medicaid-eligible children receive coverage for all services necessary to “correct or ameliorate” the problem, “whether or not such services are covered under the State plan.” 42 U.S.C. § 1396d(r)(5). Any limitations that Illinois’ Medicaid Plan imposes upon certain services do not apply to individuals who receive services through EPSDT. Id.
HCBS waivers, such as the MF/TD waiver, may supplement, but may not supplant, EPSDT services. Ill. Admin. Code tit. 89, § 120.530(d). The MF/TD waiver serves children under the age of twenty-one by providing in-home services to allow the recipients to avoid institutional placements. 305 Ill. Comp. Stat. 5/5–2.05; Ill. Admin. Code tit. 89, § 120.530(b). The MF/TD waiver is designed to serve children who require a hospital level of care or a skilled nursing home level of care. Ill. Admin. Code tit. 89, § 120.530(b). Services that are available only under the MF/TD waiver include respite care, environmental modifications, special medical supplies and equipment, medically supervised day care, family and nurse training, and placement maintenance counseling. Ill. Admin. Code tit. 89, § 120.530(d). Children participating in the MF/TD waiver also receive other covered Medicaid services, such as hospital care, medical equipment and supplies, and skilled and private duty nursing services. Id.; Ill. Admin. Code tit. 89, § 140.3(b). Skilled nursing is
2

Hampe v. Hamos, 917 F.Supp.2d 805 (2013)
the primary service received by MF/TD waiver participants, although it is covered by EPSDT rather than the MF/TD waiver. (Def.’s Resp. to Pls.’ Facts ¶ 81; Pls.’ Resp. to Def.’s Add’l Facts at ¶¶ 154–55.) Skilled nursing is an optional service that Illinois’ Medicaid Plan does not provide for adults but is required to provide for children as an EPSDT service. See Ill. Admin. Code tit. 89, §§ 140.3(c), 140.485.
The MF/TD waiver is managed by DHFS, and DHFS nurses and physicians make all eligibility determinations. Ill. Admin. Code tit. 89, § 120.530(e). Participants’ care plans are developed by DHFS and the University of Illinois, Division of Specialized Care for Children (“DSCC”) with input from their attending physicians to ensure that participants may be cared for safely in the home within the individual cost limit. Ill. Admin. Code tit. 89, § 120.530(f). DSCC is responsible for the day-to-day operations of the MF/TD waiver. Ill. Admin. Code tit. 89, § 120.530(c). DHFS has the final review and approval of all care plans. Ill. Admin. Code tit. 89, § 120.530(f).
The MF/TD waiver has the capacity for 700 children, and it served 627 children in fiscal year 2010. (Def.’s Resp. to Pls.’ Facts 12.) Between January 1, 2010, and December 31, 2013, 51 participants will turn twenty-one years old and therefore “age out” of the waiver. (Id. ¶ 4.) When participants age out, their options for continued long-term, Medicaid-funded care are either HSP services or nursing home facilities. (Id. ¶ 54.) Most participants in the MF/TD waiver transition into the Persons with Disabilities waiver, part of the HSP, once they turn twenty-one. (Id. ¶ 105.)
B. Services for adults Private duty nursing is an optional service that states may choose to cover or not *810 in their Medicaid plan. 42 U.S.C. §§ 1396a(10)(A), 1396d(a). Illinois’ Medicaid Plan does not cover private duty nursing. (Pls.’ Resp. to Def.’s Add’l Facts ¶ 143); see Ill. Admin. Code tit. 89, § 140.3(c). The HSP is “a State and federally funded program designed to allow Illinois residents, who are at risk of unnecessary or premature institutionalization, to receive necessary care and services in their homes, as opposed to being placed in an institution.” Ill. Admin. Code tit. 89, § 676.30(j). Waivers under the HSP provide funding based on the cost of a nursing home level of care for adults with physical disabilities. Ill. Admin. Code tit. 89, § 679.50. An applicant to the HSP is assigned a Determination of Need (“DON”) score based on his impairment and need for care. Ill. Admin. Code tit. 89, § 676.30(d). The DON assessment “is made to determine

whether or not the individual is at imminent risk of institutionalization, and therefore eligible for placement in a hospital/nursing facility and/or services through HSP.” Ill. Admin. Code tit. 89, § 691.10(a). The HSP provides services such as personal assistants, adult day care, homemaker services, skilled professional nursing, certified nursing assistants, in-home therapy, home-delivered meals, emergency home response, special medical equipment and supplies, environmental modifications, and respite services. Ill. Admin. Code tit. 89, § 676.40.
HSP services are only limited by their cost, as HSP participants cannot receive services that exceed the fixed cost cap, the Service Cost Maximum (“SCM”), assigned to them. Ill. Admin. Code tit. 89, § 679.50(a). The SCM “directly corresponds to the amount the State would expect to pay for the nursing care component of institutionalization if the individual chose institutionalization” and is determined by a recipient’s DON score. Id.; Ill. Admin. Code tit. 89, § 679.10(b) individuals with “complex medical needs that cannot be served within the allowable SCM” are funded at the Exceptional Care Rate determined by DHFS. Ill. Admin. Code tit. 89, § 679.50(f). The Exceptional Care Rate is based on a nursing home level of care rather than a hospital level of care, and it is comparable to the assessed cost of nursing facility care that a person with similar needs would require. Id.; Ill. Admin. Code tit. 89, § 140.569(a).
II. Plaintiffs Plaintiffs are Medicaid recipients. (Def.’s Resp. to Pls.’ Facts ¶ 30.) They were enrolled in the MF/TD waiver until their twenty-first birthdays. (Id. ¶ 31.) Defendant approved funding for significant hours of in-home skilled nursing services prior to their turning twenty-one; at minimum, she approved 112 hours each week plus an additional 168 hours each year of respite care. (Id. ¶ 33.) Plaintiffs chose to receive home and community-based services rather than be institutionalized. (Id. ¶¶ 25, 27, 29.) Plaintiffs’ medical conditions did not improve when they turned twenty-one. (Id. ¶ 64.) Plaintiffs wish to continue to receive home- and community-based services rather than be institutionalized after their twenty-First birthdays. (Id. ¶¶ 26, 28, 29.)
Defendant’s physicians determined that Plaintiffs required a hospital level of care, and Defendant found that the “Alternative Place” for Plaintiffs was a hospital. (Id. ¶¶ 34, 36.) Plaintiffs’ physicians state that Plaintiffs need a skilled nursing level of care. (Id. ¶ 64.) It is disputed whether the only alternative to the home-based services
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Hampe v. Hamos, 917 F.Supp.2d 805 (2013)

for Plaintiffs is long-term hospitalization. (Id. ¶¶ 34–45.) Defendant does not dispute that DHFS physicians found that the alternative to home-based services for Plaintiffs was hospitalization, but argues *811 that those determinations are immaterial to the present issue because they were made under the MF/TD waiver, which only applies to children under the age of twenty-one. (Id. ¶¶ 34–38). DSCC also determined that Plaintiffs’ alternative level of care was hospitalization, but Defendant argues that the DSCC’s determination is immaterial to the present issue because Plaintiffs have attained the age of twenty-one and are thus ineligible for the MF/TD waiver and EPSDT services. (Id. ¶ 47.) Defendant also alleges that similar, individual findings by Plaintiffs’ treating physicians are conclusory, foundationless, and speculative. (Id. ¶¶ 39–45.)
Plaintiffs’ medical needs cannot be met in nursing homes because “the number of patients that are assigned to a nurse would not provide the Plaintiffs the proper level of intensity of skilled nursing which they require.” (Pls.’ Facts ¶¶ 65–A, 65–B.) Defendant disputes this fact, but offers no record evidence to refute it.2 (Def.’s Resp. to Pls.’ Facts ¶¶ 65–A, 65–B.) Plaintiffs contend that the Exceptional Care Rate is not sufficient to cover the costs of the in-home skilled nursing services that Plaintiffs received under the MF/TD waiver and that they need to avoid hospitalization. (Pls.’ Facts ¶ 63.) Defendant argues that because Plaintiffs do not specify what conditions would cause them to be admitted to the hospital or what hospital they would be admitted to, the allegation is speculative. (Def.’s Resp. to Pls.’ Facts ¶ 63.) The costs DHFS had estimated for institutional care for Plaintiffs were more than twice as much as the costs of providing skilled nursing services in-home. (Id. ¶ 48.) The maximum level of reimbursement under Exceptional Care Rate is “a bit less than half of what the children are receiving through [the] MF/TD [waiver].” (Id. ¶¶ 54, 57, 58.) Thus, Plaintiffs claim that “Defendant does not permit [them] to maintain the same level of Medicaid nursing care services” once they reach the age of twenty-one. (Pls.’ Facts ¶ 55.) Defendant avers that as a matter of federal law, Plaintiffs no longer qualify for EPSDT services, including private duty nursing, once they turn twenty-one. (Def.’s Resp. to Pls.’ Facts ¶ 55.)

2

In support of Defendant’s dispute of Plaintiffs’ Facts ¶¶

65–A and 65–B, she cites to No. 39 in her Exhibit A,

which is Plaintiffs’ Response to Defendant’s First

Requests to Admit. Defendant’s Exhibit A, however,

does not include No. 39 of that document. The Court

thus regards Defendant’s response as lacking any

evidentiary basis and deems Plaintiffs’ Facts ¶¶ 65–A

and 65–B undisputed. Malec v. Sanford, 191 F.R.D.

581, 584 (N.D.Ill.2000); see F.T.C. v. Bay Area Bus.

Council, Inc., 423 F.3d 627, 634 (7th Cir.2005).
Plaintiffs claim that the costs for their continued care at home “would not exceed the anticipated cost of care for them in an institutional setting at the hospital level of care,” and that “[t]he cost of providing skilled nursing services to the Plaintiffs is less than the cost of serving them in a hospital.” (Pls.’ Facts ¶¶ 51, 53.) Defendant disputes these facts because, as Plaintiffs have attained the age of twenty-one, they “no longer qualify for the MF/TD Waiver, EPSDT services, admission to a pediatric hospital or payment of Medicaid eligible pediatric in-patient hospital admissions at a [per]-diem amount.” (Def.’s Resp. to Pls.’ Facts ¶¶ 51, 53.) Plaintiffs argue that the Exceptional Care Rates that have been established for them are insufficient to cover in-home nursing. (Pls.’ Facts ¶ 57–63.) Defendant disputes this contention, repeating her allegations that Plaintiffs’ doctors statements are conclusory and baseless, and pointing out that DHS has set an Exceptional Care Rate for only some of the named Plaintiffs. (Def.’s Resp. to Pls.’ Facts ¶ 57–63.)
*812 PROCEDURAL HISTORY
Plaintiff William R. Hampe filed his initial complaint (R. 1) on May 20, 2010. On May 23, 2010, he moved for a temporary restraining order and a preliminary injunction (R. 4), which were granted on May 28, 2010 (R. 11, Order). On June 2, 2010, Hampe moved to certify a class. (R. 12, Pl.’s Mot.) The United States filed a statement of interest (R. 26) on July 16, 2010. Throughout the next few months, additional plaintiffs joined the suit and obtained temporary restraining orders and preliminary injunctions. (R. 33, Winfrey Order; R. 49, Cale Order; R. 58, Welter Order; R. 83, Lytle Order; R. 85, Baron Order; R. 87, Stracka Order.) Plaintiffs filed their third amended complaint on October 28, 2010. (R. 54, Third Am. Compl.) In Count I, Plaintiffs allege that “Defendant’s planned reduced funding or actual reduced funding of the home nursing and other services which the Plaintiffs needs [sic ]” constitutes unlawful discrimination of individuals with disabilities in violation of Title II of the ADA, 42 U.S.C. § 12132. (Id. ¶¶ 211–15.) In Count II, Plaintiffs allege that the reduced funding constitutes unlawful discrimination in violation of the Rehabilitation Act, 29 U.S.C. § 794(a), and that the reduced funding will force the Plaintiffs “into an institution” in violation of the regulations implementing the Rehabilitation Act, 28 C.F.R. § 41.51(d). (Id. ¶¶ 220–24.) Plaintiffs seek declaratory and injunctive relief. (R. 54, Third Am.
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Hampe v. Hamos, 917 F.Supp.2d 805 (2013)
Compl. at 54–55.)
Hampe’s motion to certify a class was granted on November 11, 2010. (R. 75, Mem. & Order.) Defendant filed her amended affirmative defenses and answer to the amended complaint (R. 102) on December 21, 2010. On January 23, 2012, Plaintiffs moved to reassign and consolidate with this case Chad White–Smith v. Hamos, No. 12 C 41 (R. 120), another case being litigated in this district. The motion to reassign and consolidate was granted on May 15, 2012. (R. 153, Min. Entry.) On August 23, 2012, Plaintiffs moved for summary judgment (R. 171). On October 10, 2012, Defendant filed her response to Plaintiffs’ motion for summary judgment (R. 190) in addition to her own motion for summary judgment (R. 191). Plaintiffs filed their reply and response on October 14 (R. 197), and Defendant replied on October 25 (R. 200). The cross-motions for summary judgment are presently before the Court.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding a motion for summary judgment, the Court does not evaluate the weight of the evidence, judge the credibility of the witnesses, or determine the ultimate truth of the matter; instead, the Court must ascertain whether there exists a genuine issue of triable fact. Id. at 249–50, 106 S.Ct. 2505. Accordingly, the nonmovant must “come forward with specific facts showing that there is a genuine issue for trial.” Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir.2000) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Summary judgment is not appropriate if there are disputed issues of material fact *813 remaining, or if the Court must make “a choice of inferences” arising from undisputed facts. Harley–Davidson Motor Co., Inc. v. PowerSports, Inc., 319 F.3d 973, 989 (7th Cir.2003). In deciding a motion for summary judgment, the Court must construe all facts in the light most favorable to the nonmovant and draw all reasonable and justifiable inferences in her favor.

Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir.2009). When both parties seek summary judgment, the Court “look[s] to the burden of proof that each party would bear on an issue of trial; [the Court] then require[s] that party to go beyond the pleadings and affirmatively to establish a genuine issue of material fact.” Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir.1997) (citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548).
On summary judgment, the Court limits its analysis of the facts to the evidence that is presented in the parties’ Local Rule 56.1 statements. See Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir.2000). Parties’ statements of material facts must be “amply supported by citations to the relevant record evidence.” Bay Area Bus. Council, 423 F.3d at 634. When a proposed statement of fact is supported by the record and not adequately controverted by the opposing party, the Court will accept that statement as true. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir.2001). To adequately dispute a statement of fact, the opposing party must cite specific support in the record; an unsubstantiated denial or a denial that is mere argument or conjecture is not sufficient to create a genuinely disputed issue of material fact. Id.; see also Judson Atkinson Candies, Inc. v. Latini–Hohberger Dhimantec, 529 F.3d 371, 382 n. 2 (7th Cir.2008). These same Rule 56 standards apply to cross-motions for summary judgment. Int’l Bhd. of Elec. Workers, Local 176 v. Balmoral Racing Club, Inc., 293 F.3d 402, 404 (7th Cir.2002).
DISCUSSION
Plaintiffs allege that DHFS’s “planned reduced funding or actual reduced funding of the home nursing and other services which the Plaintiffs need in order to avoid institutionalization” constitutes unlawful discrimination in violation of the ADA, 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. § 794(a). (R. 54, Third Am. Compl. ¶¶ 214, 215, 222, 223.)
Title II of the ADA requires that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Under the statute, “[t]he terra ‘qualified individual with a disability’ means an individual with a disability who, with or without reasonable modifications ... meets the essential eligibility requirements for the receipt of services or the participation in programs or
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Hampe v. Hamos, 917 F.Supp.2d 805 (2013)
activities provided by a public entity.” 42 U.S.C. § 12131(2). Similarly, Section 504 of the Rehabilitation Act, which applies to programs receiving federal financial assistance, states in relevant part: “No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance[.]” 29 U.S.C. § 794. “In view of the similarities between the relevant provisions of the ADA and the [RA],” courts are instructed to “construe and apply them in a consistent manner.” Radaszewski ex rel. Radaszewski v. Maram (Radaszewski I), 383 F.3d 599, 607 (7th Cir.2004). Thus, the Court’s analysis of *814 Plaintiffs’ ADA claim applies with equal force to their Rehabilitation Act claim.
Certain elements of Plaintiffs’ ADA claim are undisputed. It is undisputed that Plaintiffs are individuals with disabilities, though the parties disagree as to whether Plaintiffs are “qualified” for the services they seek. Additionally, the parties agree that DHFS is a “public entity” for purposes of Title II of the ADA and a recipient of federal funds subject to the Rehabilitation Act. (R. 54, Third Am. Compl. ¶¶ 213, 221; R. 102, Def.’s Am. Aff. Defenses & Answer ¶¶ 213, 221.) Thus, DHFS is subject to the two statutes and their implementing regulations. Two critical issues, however, are disputed: (1) whether Plaintiffs are eligible for the services they seek and thus can be considered qualified individuals with disabilities; and (2) whether Defendant discriminated against Plaintiffs on the basis of their disabilities. The Court will address each in turn.
I. Whether Plaintiffs are qualified individuals with disabilities [1] It is undisputed that Plaintiffs are Medicaid recipients and that they met the eligibility requirements for community-based services, and received such services through the MF/TD waiver, prior to their twenty-first birthdays. (Pls.’ Facts ¶¶ 30, 33, 34.) The parties dispute whether Plaintiffs are qualified individuals with disabilities and the eligibility requirements that Plaintiffs must meet to be considered qualified individuals with disabilities within the meaning of the ADA.
Plaintiffs seem to broadly argue that they are qualified individuals with disabilities within the meaning of Title II because they are eligible for Illinois’ Medicaid program. (See R. 176, Pls.’ Mem. at 8–9.) Plaintiffs allege that any individual who was previously a participant in the MF/TD waiver is a qualified individual with a disability. (Id. at 8) (quoting Radaszewski I, 383 F.3d at 613–14). Plaintiffs

base their argument only on their allegation that “every District Court in the State of Illinois has found that a person previously enrolled in the MF/TD [waiver] has been found to be an ‘individual with a disability’ without any difficulty.” (Id. at 8–9) (citing Radaszewski I, 383 F.3d at 613–14; Grooms v. Maram, 563 F.Supp.2d 840, 850–51 (N.D.Ill.2008); Radaszewski ex rel. Radaszewski v. Maram (Radaszewski II), No. 01 C 9551, 2008 WL 2097382, at *38–39 (N.D.Ill. Mar. 26, 2008); Sidell v. Maram, No. 05–1001, 2007 WL 5396285, at *26 (C.D.Ill. May 14, 2007)). Plaintiffs fail to provide any law or analysis in support of their argument.
Purportedly in response, Defendant argues that Plaintiffs are not qualified within the meaning of the ADA because they do not meet the eligibility requirements of EPSDT. (R. 193, Def.’s Resp. to Pls.’ Mem. at 3–11.) Defendant argues that EPSDT is a Medicaid provision pursuant to which Congress requires states to make certain health services available to children, and that the age limit is an essential eligibility requirement for EPSDT services. (Id. at 4–5.) Defendant contends that because Plaintiffs have already turned twenty-one, they cannot meet the eligibility requirements for EPSDT without modification and that raising the age limit is not a reasonable modification. (Id. at 8.) Defendant does not address whether Plaintiffs are eligible to receive services through the PWD waiver except to assert that this Court “cannot give Plaintiffs the type and quantity of services they received as children, i.e., private duty nursing, by calling it a “reasonable modification” to some other Medicaid-funded program.” (Id. at 10.)
*815 Plaintiffs reply by repeating their original arguments nearly verbatim. (R. 197, Pls.’ Reply to Def.’s Resp. at 9–10.) Plaintiffs then attack Defendant’s arguments as to whether their proposed modifications are reasonable without addressing her allegations that they are not eligible to receive the services they seek. (Id. at 10–12.) Plaintiffs rely heavily on Radaszewski I, Radaszewski II, Grooms, and Sidell to support their argument that the modifications they seek are reasonable, and they allege that Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 607, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), “set out an unequivocal application of the integration mandate for forced institutionalization cases.” (Id. at 10–11.)
First, the Court must address the disagreement as to what program or waiver Plaintiffs must be eligible for in order to be qualified individuals with disabilities within the meaning of Title II of the ADA. The Court rejects Plaintiffs’ apparent position that they must only be eligible for Medicaid to be deemed qualified individuals with disabilities because Plaintiffs seek specific services, namely, skilled private-duty nursing, that are not offered
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to all Medicaid recipients. It is undisputed that Plaintiffs require a hospital level of care. (Pls.’ Facts ¶ 36, 64; Def.’s Resp. to Pls.’ Facts at 22, 37.) In order to avoid institutionalization as adults, as is the goal of the HSP, Plaintiffs each require over 112 hours of skilled nursing per week. (See, e.g., R. 173–6, Pls.’ Local Rule 56.1 Materials, Ex. 38, Decl. of Dr. Keith Veselik, ¶¶ 4–5; R. 173–6, Pls.’ Local Rule 56.1 Materials, Ex. 39, Decl. of Dr. Gregory K. Milani, ¶¶ 4–5; R. 173–6, Pls.’ Local Rule 56.1 Materials, Ex. 40, Decl. of Dr. David L. Miller, ¶¶ 4–5); see also Radaszewski I, 383 F.3d at 611–12 (“[T]he purpose of a waiver program like HSP is to enable medically needy individuals to avoid institutionalization by making services available to them that are otherwise not part of the State’s basic Medicaid program.”). Based on these facts, the Court concludes that Plaintiffs must prove their eligibility for either the MF/TD waiver or the HSP to be qualified individuals with disabilities who may sue Defendant pursuant to the ADA.
In Radaszewski I, the Seventh Circuit addressed whether the plaintiff, who was very similarly situated to Plaintiffs here, was a qualified individual with a disability within the meaning of the ADA and found it undisputed that he was “qualified for the receipt of home services through the HSP” in the sense that he was eligible for Medicaid and at risk of institutionalization. 383 F.3d at 612 (emphasis added); see also Olmstead, 527 U.S. at 602, 119 S.Ct. 2176 (discerning whether plaintiffs met the essential eligibility requirements “for habilitation in a community-based program”). The Seventh Circuit looked to the Illinois Administrative Code to determine whether the plaintiff met the statutory HSP eligibility requirements. Radaszewski I, 383 F.3d at 612–13 (citing Ill. Admin Code. tit. 89, § 682.100). Because the Seventh Circuit was reversing a grant of summary judgment in favor of the defendant, it assumed that the plaintiff would be able to prove on remand his assertions that he met the specific elements of HSP eligibility, such as cost-neutrality. Radaszewski I, 383 F.3d at 613.
To establish their eligibility under the HSP, Plaintiffs must prove the following: (a) they are citizens of the United States; (b) they are Medicaid recipients; (c) they are Illinois residents; (d) they are under the age of sixty; (e) they have severe, lifelong disabilities; (f) they are in need of long-term care as indicated by their DON scores; (g) their physicians certify that they are in need of long-term care that can safely and adequately be provided in their *816 homes; and (h) their in-home care is cost-neutral as compared to institutional care for an individual with a similar DON score. Ill. Admin. Code. tit. 89, § 682.100. Eligibility requirements (a)-(e) and (g) are easily met. With respect to subsection (f), Plaintiffs never disclose their DON scores or allege that their DON

scores indicate that they are in need of long-term care. Nevertheless, the Court concludes, based on the totality of the undisputed facts and drawing all reasonable inferences in favor of Defendant, that Defendant cannot plausibly dispute that Plaintiffs meet the eligibility requirement of subsection (f).
With respect to subsection (h), Plaintiffs argue that providing them in-home nursing services costs Illinois less than their hospitalizations would. (R. 176, Pls.’ Mem. at 10.) In support of this proposition, Plaintiffs cite the hours of in-home nursing care DHFS approved for them under the MF/TD waiver and the Defendant’s estimated costs of institutional care versus home care. (Pls.’ Facts ¶¶ 33, 48.) Defendant does not dispute that DHFS found in-home care to be more cost-effective than institutional care under the MF/TD waiver, but argues that those figures are irrelevant because Plaintiffs are no longer covered by the MF/TD waiver. (Def.’s Resp. to Pls.’ Facts at 33.) It is undisputed that under Medicaid, pediatric hospital stays are reimbursed on a per-diem basis, while general hospital stays are reimbursed at a “diagnosis related grouping rate.” (Def.’s Add’l Facts ¶¶ 156, 158.) This disparity may constitute a significant difference in cost, or it may not. Neither party provides the Court with information about the relative costs of the per-diem reimbursement for pediatric hospital stays and the diagnosis related grouping rate reimbursement for general hospital stays. Without this evidence, the Court is unable to determine whether Plaintiffs meet the eligibility requirements for HSP. See Radaszewski I, 383 F.3d at 613–614 (finding the question of relative costs critical to any final decision).
As in Radaszewski I, Defendant here has not alleged facts sufficient to establish that she is entitled to judgment as a matter of law on the issue of Plaintiffs’ eligibility for HSP. See Radaszewski I, 383 F.3d at 614–15 (holding that the district court erred in granting summary judgment in favor of the defendant because the plaintiff’s complaint permitted the inference that he was entitled to home placement). Plaintiffs’ allegations and their prior qualification for the MF/TD waiver lead the Court to believe that Plaintiffs are likely to be able to prove that home-based treatment is cost-neutral and thus that they meet the eligibility requirements for HSP and are qualified individuals with disabilities for the purposes of the ADA and the Rehabilitation Act. See id. at 613. Accordingly, the Court will not grant Defendant’s motion for summary judgment on this issue.
Neither have Plaintiffs established that they are entitled to a finding that they are eligible for HSP. The fact that “every District Court in the State of Illinois” has found similarly-situated individuals to be qualified does not
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excuse Plaintiffs from alleging the specific facts necessary to prove their case and supporting those facts with record evidence. The case before the Court is procedurally distinguishable from the four cases Plaintiffs cite in support of their allegation that they are qualified individuals with disabilities under the ADA. In Radaszewski I, the Seventh Circuit stated that the plaintiffs assertion of cost-neutrality was plausible, particularly because he had met a similar cost-neutrality requirement for the MF/TD waiver prior to turning twenty-one. 383 F.3d at 613. There, however, as in Grooms and Sidell, the court was addressing only the defendant’s *817 motion for summary judgment. The court therefore found that the plaintiffs plausibly could prove cost-neutrality, not that they had. Id.; see also Grooms, 563 F.Supp.2d at 863–64 (denying defendant’s motion for summary judgment and seeking further briefing on issues of relative costs); Sidell, 2007 WL 5396285, at *9 (same). In Radaszewski II, the district court made a finding of fact on remand that plaintiffs were eligible to receive services through HSP after a bench trial where, presumably, the relative costs of care were entered into evidence. 2008 WL 2097382, at *14.
As Plaintiffs note, a party arguing for summary judgment “may not rest upon the mere allegations or denials of his pleading but instead, must set forth specific facts” that leave no possibility that a jury could find for the non-movant. (R. 176, Pls.’ Mem. at 5) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505) (internal quotation marks omitted). Parties must also provide analysis to support their arguments; bare facts and legal standards are insufficient. Malec v. Sanford, 191 F.R.D. 581, 586 (N.D.Ill.2000). Thus, because Plaintiffs have failed to definitively establish that they are qualified individuals with disabilities entitled to bring this suit under the ADA, the Court must also deny Plaintiffs’ motion for summary judgment on this issue. See Harley–Davidson, 319 F.3d at 992 (denying summary judgment when the facts were undisputed because “the reasonable inferences arising from those facts [were] disputed and create[d] genuine issues of material fact”).
II. Whether Defendant discriminated against Plaintiffs on the basis of disability Assuming, arguendo, that Plaintiffs are qualified individuals with disabilities, the Court must next determine whether Defendant violated the ADA and the Rehabilitation Act by discriminating against Plaintiffs on the basis of their disabilities. Plaintiffs argue that Defendant’s arbitrary reduction of services forces them into “segregated institutions,” which constitutes discrimination in violation of the ADA and the

Rehabilitation Act. (R. 176, Pls.’ Mem. at 5–6.) Defendant argues that she did not discriminate against Plaintiffs on the basis of disability because the neutral application of a neutral rule, the EPSDT age limit, disqualifies Plaintiffs from receiving the services they seek. (R. 193, Def.’s Resp. to Pls.’ Mem. at 12.)
A. Integration mandate The ADA was enacted to prevent discrimination against individuals with disabilities, including isolation and segregation of those individuals. Olmstead, 527 U.S. at 588–89, 599–603, 119 S.Ct. 2176 (quoting and discussing 42 U.S.C. §§ 12101(a)(2), (3), (5)). To that end, the regulations promulgated pursuant to the ADA and the Rehabilitation Act include “integration mandates.” Specifically, the Rehabilitation Act’s regulations require public entities to “administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.” 28 C.F.R. § 41.51(d). The ADA’s corresponding regulation, 28 C.F.R. § 35.130(d), was modeled after and is virtually identical to the Rehabilitation Act’s regulation. Olmstead, 527 U.S. at 592, 119 S.Ct. 2176. Because the integration mandates of the ADA and the Rehabilitation Act are so similar, this Court will “construe and apply them in a consistent manner.” Radaszewski I, 383 F.3d at 607 (7th Cir.2004).
[2] [3] In Olmstead, the Supreme Court found that institutionalization severely diminishes an individual’s ability to participate in everyday life activities, and thus *818 “unjustified institutional isolation” of a disabled individual receiving medical care from a state constitutes actionable discrimination under the ADA. Id. at 597–603, 119 S.Ct. 2176. “[A] State may violate Title II when it refuses to provide an existing benefit to a disabled person that would enable that individual to live in a more community-integrated setting.” Radaszewski I, 383 F.3d at 609; see also Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1182–84 (10th Cir.2003); Townsend v. Quasim, 328 F.3d 511, 516–20 (9th Cir.2003). A state is obligated to provide community-based treatment for individuals with disabilities if three conditions are satisfied: (1) the state’s treatment professionals find that community-based treatment is appropriate; (2) the affected individuals do not oppose community-based treatment; and (3) community-based treatment can be reasonably accommodated, taking into account the state’s resources and the needs of others with similar disabilities. Olmstead, 527 U.S. at 607, 119 S.Ct. 2176; Radaszewski I, 383 F.3d at 608.
Defendant argues that in Olmstead, the Supreme Court ruled that states must mete out the services they offer
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equitably, not that states must provide additional services. (R. 193, Def.’s Resp. to Pls.’ Mem. at 14–15) (citing Olmstead, 527 U.S. at 597, 603, 119 S.Ct. 2176 n. 14, 605). Defendant also argues that the integration mandates do not impose any additional affirmative obligations. (R. 193, Def.’s Resp. to Pls.’ Mem. at 15) (“Regulations creating rights independent of any federal statute are not enforceable laws.”) (citing Mungiovi v. Chi. Hous. Auth., 98 F.3d 982, 983–84 (7th Cir.1996)). Defendant’s arguments run counter to the holdings in Olmstead and Radaszewski I, which instruct that the integration mandate within the implementing regulations of the ADA creates a private right of action for disabled individuals who are institutionalized instead of integrated into community-based treatment plans. In Olmstead, the Supreme Court explicitly held that “the proscription of discrimination may require placement of persons with mental disabilities in community settings rather than in institutions” as long as “the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” 527 U.S. at 587–88, 119 S.Ct. 2176. In Radaszewski I, the Seventh Circuit extended that analysis to apply equally to individuals with physical disabilities. 383 F.3d at 608; see also Fisher, 335 F.3d at 1181 (finding that Olmstead’s holding involving patients seeking to be removed from institutions applies equally to individuals seeking to avoid institutionalization).
Defendant attempts to distinguish Radaszewski I, arguing that “[t]he claims asserted [there] were claims for a reasonable modification for an individual and are not similar to the claims asserted here on behalf of the Plaintiff class.” (R. 193, Def.’s Resp. to Pls.’ Mem. at 16.) Defendant then criticizes Radaszewski I and provides myriad reasons why the Court should not follow Seventh Circuit precedent. (Id. at 16–17.) The Court finds neither of these approaches persuasive. The claims asserted in Radaszewski I were virtually identical to the claims asserted here, except that they were on behalf of a single individual. Thus, the Seventh Circuit’s analysis in Radaszewski I guide the Court’s decision here. The Court declines to entertain Defendant’s implications that Radaszewski I was wrongly decided or that the Seventh Circuit *819 overreached in making that decision. (Id.)
The parties agree that the state’s treatment professionals determined that community-based treatment was appropriate prior to Plaintiffs’ twenty-first birthdays. (Pls.’ Facts ¶ 34; Def.’s Resp. to Facts at 20–21.) The parties also agree that Plaintiffs’ medical conditions did

not improve when they turned twenty-one.3 Based on these two facts, the Court finds it undisputed that community-based treatment is appropriate for Plaintiffs. See Radaszewski I, 383 F.3d at 608 (“There is little doubt that [the plaintiff] can be cared for appropriately at home; he has been receiving care at home since 1994.”). Additionally, the parties agree that Plaintiffs do not oppose, and in fact seek, community-based treatment. (Pls.’ Facts ¶¶ 25–29.) Thus, the question that remains for the Court is whether community-based treatment can be reasonably accommodated, taking into account the state’s resources and the needs of others with similar disabilities. If the answer is yes, Defendant is obligated to provide community-based treatment for Plaintiffs, and failure to do so constitutes a violation of the ADA and the Rehabilitation Act, Olmstead, 527 U.S. at 607, 119 S.Ct. 2176; Radaszewski I, 383 F.3d at 608.

3

Plaintiffs’ statement of fact ¶ 34 is: “The Plaintiffs [sic

] medical condition[s] did not improve when they

turned 21 years of age and the Plaintiffs still require a

hospital level of care.” (Pls.’ Facts.) Defendant disputes

this fact and asserts that “Plaintiffs’ physicians state

that they need a skilled nursing level of care.” (Def.’s

Resp. to Pls.’ Facts ¶ 34.) The Court interprets

Defendant’s response to dispute Plaintiffs’ contention

that they “still require a hospital level of care,” but not

their contention that their “medical condition[s] did not

improve when they turned 21 years of age.”

Additionally, the evidence both parties rely on for these

assertions clearly states that Plaintiffs’ medical

conditions did not improve when they turned

twenty-one. Thus, the Court considers it undisputed

that Plaintiffs’ medical conditions did not improve

when they turned twenty-one.

B. Reasonable accommodation [4] Because community-based treatment is appropriate for Plaintiffs if they are qualified individuals with disabilities, the Court must decide whether the State can reasonably accommodate their request for community-based treatment. Grooms, 563 F.Supp.2d at 855. In order for Plaintiffs to obtain the relief they seek, Defendant could amend the MF/TD waiver to provide services past the age of twenty-one or amend the PWD waiver to provide a hospital level of care. (R. 176, Pis.’ Mem. at 12–15); Radaszewski I, 383 F.3d at 609. Defendant argues that neither of these are reasonable modifications. (R. 193, Def.’s Resp. to Pls.’ Mem. at 4, 10.)
Olmstead does not require states to create new services, but rather requires them to “adhere to the ADA’s nondiscrimination requirement with regard to the services
9

Hampe v. Hamos, 917 F.Supp.2d 805 (2013)
they in fact provide.” 527 U.S. at 603 n. 14, 119 S.Ct. 2176. Illinois does in fact provide private-duty nursing through the HSP program. (Pls.’ Facts ¶¶ 106, 107; Def.’s Resp. to Pls.’ Facts at 57–58.) In Radaszewski I, the Seventh Circuit held that private duty nursing is a service that Illinois provides independently of the MF/TD waiver. 383 F.3d at 612. The Seventh Circuit concluded that the plaintiff was not seeking a new service, just a modification of the existing nursing services provided, and that this modification could be achieved either by an increased age limit for participation in the MF/TD waiver or an increased Exceptional Care Rate in the HSP waiver. Id. at 609–10; see also Townsend, 328 F.3d at 517; Fisher, 335 F.3d at 1183. “[T]he fact that the *820 State already provides for some private-duty nursing tends to belie the notion that providing such care to [the plaintiff] so that he may remain at home would require the State to alter the substance of its Medicaid programs by creating an entirely ‘new’ service.” Radaszewski I, 383 F.3d at 612. The modification Plaintiffs seek is not the creation of a new program or service; they just seek more of the same service they are already entitled to and provided.
Determining whether the requested accommodation is reasonable “requires the court to ask (1) whether a nursing home facility can meet [Plaintiffs’] needs and (2) what level of care [Plaintiffs] would require in an institutional facility.” Grooms, 563 F.Supp.2d at 855 (citing Radaszewski I, 383 F.3d at 610). The Court must then determine the cost of institutionalization in the proper facility and whether instead providing home care imposes a reasonable expense upon the state. Id. As discussed above, there is no genuine dispute that Plaintiffs’ needs cannot be met in a nursing home facility. Thus, the only questions are as to the level of care Plaintiffs would receive if they were institutionalized and the relative costs of providing that level of care at home instead of in an institution. Plaintiffs broadly and repeatedly assert that their only alternative to receiving a hospital-level of care at home is hospitalization. This is undisputed, but neither party provides any evidence as to what kind of hospital Plaintiffs would be placed in, what level of care they would receive, what services they would be entitled to during their hospitalizations, or the probable durations of their hospital stays. See id. at 863–64 (listing these questions, among others, as issues that “were identified by the Seventh Circuit as critical to any final decision in this case”) (citing Radaszewski I, 383 F.3d at 610, 613–14). Additionally, as discussed above, the facts before the Court create a relevant factual issue as to whether community-based treatment is cost-neutral when the Plaintiffs are subject to general hospital stays rather than pediatric hospital stays. Accordingly, the Court is unable to determine whether the relief Plaintiffs seek is a reasonable accommodation.

C. Fundamental alteration [5] Defendant argues not only that the requested accommodation is unreasonable, but that it would constitute a fundamental alteration in the nature of Illinois’ Medicaid program. (R. 193, Def.’s Resp. to Pls.’ Mem. at 8.) The ADA’s regulations instruct that public entities are to make reasonable modifications necessary to comply with the ADA, “unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7); see also Radaszewski I, 383 F.3d at 611 (holding that Title II of the ADA “may well require the State to make reasonable modifications to the form of existing services in order to adapt them to community-integrated settings,” but that “a State is not obliged to create entirely new services” or fundamentally alter the substance of the services it provides). Defendant argues that the modifications Plaintiffs seek—waiving the age limit, requiring Defendant to cover private duty nursing beyond Plaintiffs’ twenty-first birthdays, or requiring Defendant to provide Plaintiffs with funding at the same level they received as children—would fundamentally alter the structure of Illinois’ Medicaid Plan by compelling the State to cover optional Medicaid services. (R. 193, Def.’s Resp. to Pls.’ Mem. at 8–9.) Plaintiffs argue that Defendant can amend the Medicaid waiver because “the ADA trumps Medicaid and if the existing Medicaid program in Illinois places the Plaintiffs at risk *821 of institutionalization, then the Defendant is required [to] modify or amend [ ] its program as required by Olmstead and Radaszewski [I].” (R. 197, Pls.’ Reply to Def.’s Resp. at 14–15.)
[6] The fundamental alteration defense allows a state to avoid making modifications to accommodate disabled individuals if it can “show that adapting existing institution-based services to a community-based setting would impose unreasonable burdens or fundamentally alter the nature of its programs or services.” Radaszewski I, 383 F.3d at 611. Courts of Appeals have interpreted the fundamental alteration defense narrowly and have applied it only when a state has already implemented a plan to bring it into compliance with the ADA. Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 380–81 (3d Cir.2005) (“[T]he only sensible reading of the integration mandate consistent with the Court’s Olmstead opinion allows for a fundamental alteration defense only if the accused agency has developed and implemented a plan to come into compliance with the ADA and [Rehabilitation Act].”); Frederick L. v. Dep’t of Pub. Welfare of Pa., 422 F.3d 151, 157 (3d Cir.2005) (interpreting Olmstead “to mean that a comprehensive
10

Hampe v. Hamos, 917 F.Supp.2d 805 (2013)
working plan is a necessary component of a successful ‘fundamental alteration’ defense” and holding that the Commonwealth of Pennsylvania could “not avail itself of the ‘fundamental alteration’ defense to relieve its obligation to deinstitutionalize eligible patients without establishing a plan that adequately demonstrate[d] a reasonably specific and measurable commitment to deinstitutionalization for which [the Commonwealth could] be held accountable.”); Arc of Wash. State Inc. v. Braddock, 427 F.3d 615, 621–22 (9th Cir.2005) (allowing the State of Washington to claim the fundamental alteration defense because it had “a comprehensive, effectively working plan,” and demonstrated “that its commitment to deinstitutionalization [wa]s genuine, comprehensive and reasonable”) (internal citations and quotation marks omitted); see also Townsend, 328 F.3d at 519 (“[P]olicy choices that isolate the disabled cannot be upheld solely because offering integrated services would change the segregated way in which existing services are provided.... Olmstead did not regard the transfer of services to a community setting, without more, as a fundamental alteration.”); Fisher, 335 F.3d at 1182 (“[T]he mere fact that a program is optional does not support a fundamental-alteration defense; rather, it merely begs the question whether provision of that service would constitute a fundamental alteration.”).
Here, Defendant has presented no comprehensive plan to come into compliance with the ADA that would be disrupted by Plaintiffs’ proposed modifications or any substantive reason to find that the relief Plaintiffs seek constitutes a fundamental alteration. The reasons Defendant gives for why the Court should view Plaintiffs’ requested relief as a fundamental alteration are abstract: that the ADA does “not evidence Congress’ intent to impose massive funding obligations on States that Congress itself has chosen not to fund,” and that requiring the State to “alter the benefits under its Medicaid program simply to meet the reality that disabled persons have greater medical needs ... would be to find that the Rehabilitation Act requires that States view certain medical conditions as more important than others and more worthy of cure through government subsidization.” (R. 193, Def.’s Resp. to Pls.’ Mem. at 9.) Neither of these allegations explain why Plaintiffs’ requested relief would constitute a fundamental alteration of Illinois’ current Medicaid program.
*822 [7] Additionally, Defendant argues that if the Court grants the relief Plaintiffs seek, it “would impose massive funding obligations on Defendant that Congress declines to fund because of the EPSDT age limitation.” (R. 193, Def.’s Resp. to Pls.’ Mem. at 10–11.) Defendant does not

support this allegation with any evidence about the costs Illinois would face and only provides vague speculations. (Id.) Mere speculation is not sufficient to sustain a motion for summary judgment. Liu v. T & H Machine, Inc., 191 F.3d 790, 796 (7th Cir.1999). Even if Defendant had provided a concrete analysis of the costs involved, “budgetary constraints alone are insufficient to establish a fundamental alteration defense.” Pa. Prot. & Advocacy, 402 F.3d at 380; see also Radaszewski I, 383 F.3d at 614 (explaining that the fact that plaintiff’s modifications would require a state to “substantially increase” its expenditures is not sufficient to defeat his Title II claim); Townsend, 328 F.3d at 520 (explaining that budgetary considerations are insufficient to establish a fundamental alteration defense and focusing on “whether [the asserted] extra costs would, in fact, compel cutbacks in services to other recipients”); Fisher, 335 F.3d at 1182–83 (“the fact that [a state] has a fiscal problem, by itself, does not lead to an automatic conclusion that [the provision of integrated treatment] will result in a fundamental alteration”).
In sum, a state cannot avoid correcting an ADA violation “simply by replying that compliance would be too costly or would otherwise fundamentally alter its noncomplying programs. Any program that runs afoul of the integration mandate would be fundamentally altered if brought into compliance. Read this broadly, the fundamental alteration defense would swallow the integration mandate whole.” Pa. Prot. & Advocacy, 402 F.3d at 380–81. Defendant has not alleged sufficient facts to establish that Plaintiffs seek a fundamental alteration of the Illinois Medicaid Plan, and the Court will not grant Defendant’s motion based on this defense.
CONCLUSION
Because several issues of material fact remain, summary judgment is inappropriate at this time. Accordingly, Plaintiffs’ Motion for Summary Judgment (R. 171) is DENIED and Defendant’s Motion for Summary Judgment (R. 191) is DENIED. The parties are directed to reevaluate their settlement positions in light of this opinion and to exhaust all efforts to settle this case. A status hearing will be held on February 5, 2013 at 9:45 a.m. to set a firm trial date. Given the limited, but important, factual issues that remain to be determined, it is the Court’s hope that this delayed lawsuit can be resolved in the near future.

11

Hampe v. Hamos, 917 F.Supp.2d 805 (2013) 12

 
 n4l\ Case: 1:10-cv-03121 Document #: 240 Filed: 10/03/13 Page 1 of 10 PageID #:3121

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

WILLIAM R. HAMPE, by and through his mother / guardian Jill Hampe, RICHARD L.
WINFREY,III, and ADAM CALE, OLMA
WELTER by and through her parents/guardians
John Welter and Tamara Welter, PHILLP
BARON, by and through his mother/guardian Barbara Baron, JESSICA L. LYTLE, by and through her mother/guardian Judith A. Lflle, JACOB STRACKA, by and through his parents/
guardians, David Stracka and Nicole Stracka,
and CHARLES STOUT, individually and on
behalf of a class,

Plaintiffs,
vs.
JULIE HAMOS, in her official capacity as Director of the Illinois Department of
Healthcare and Family Services,
Defendant.

No. 10 C 3l2l

Judge Ruben Castillo

)

Magistrate Judge Arlander Keys

)

)

)

CONSENT DECREE
1. Plaintiffs William R. Hampe, by and through his motheriguardian Jill Hampe,

Richard L. Winfrey, III, Adam Cale, Olivia Welter, by and through her parents/guardians John

Welter and Tamara Welter, Phillip Baron, by and through his mother/guardian Barbara Baron,

Jessica Lytle, by and through her mother/guardian Judith A. Lytle, Jacob Stracka, by and through

his parents/guardians David Stracka and Nicole Stracka, and Charles Stout, on their own behalf

and a class of others similarly situated, and Defendant Julie Hamos, in her official capacity as

Director of the Illinois Department of Healthcare and Family Services, hereby file this Consent

Decree to resolve the claims raised in the Plaintiffs' Third Amended Complaint for Declaratory

and Injunctive Relief, alleging violations of Title II of the Americans with Disabilities Act (42

Case: 1:10-cv-03121 Document #: 240 Filed: 10/03/13 Page 2 of 10 PageID #:3122
U.S.C. $ 12132,28 C.F.R. $ 35.130), Section 504 of the Rehabilitation Act (29 U.S.C. $ 794(a), 28.C.F.R. $ 41.51), and42 U.S.C. $ 1983.
2. The Plaintiffs are individuals with disabilities who, at the time this action was
initiated, were eligible for Medicaid under Title XIX of the Social Security Act pursuant to a federally-approved Home and Community Based Services Waiver for Medically Fragile and
Technology Dependent Children (MF/TD Waiver) for children under 2l years of age, and who,
upon attaining 2l years of age, were no longer eligible for the MF/TD Waiver and were
allegedly subjected to reduced Medicaid funding.
3. The Defendant is the Director of the Illinois Department of Healthcare and Family
Services, which is the agency responsible for overseeing and implementing Illinois' Medical
Assistance or Medicaid program pursuant to 42 U.S.C. $ 1396(aX5).
4. The Plaintiffs allege, inter alia, that when individuals attain2l years of age, they
age out of the MF/TD Waiver and into a different waiver program that provides substantially less funding. The Plaintiffs allege that without the funding provided by the MF/TD Waiver program,
they will have to be institutionalized or hospitalized to provide for their medical needs. The Plaintiffs allege that the Defendant's policy violates Title II of the Americans with Disabilities
Act,42 U.S.C. T2132, and the Rehabilitation Act, 29U.5.C.794.
5. By Order dated November 22,2010, the Court certified this case to proceed as a
class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure on behalf of "[a]ll persons who are enrolled or will be enrolled or were enrolled in the State of Illinois' Medically Fragile, Technology Dependent Medicaid Waiver Program (MF/TD) and when they obtain the age of 21 years are subjected to reduced Medicaid funding which reduces the medical level of care which they had been receiving prior to obtaining2l years."

Case: 1:10-cv-03121 Document #: 240 Filed: 10/03/13 Page 3 of 10 PageID #:3123
6. The Defendant denies the allegations of the Plaintiffs' Third Amended Complaint
for Declaratory and Injunctive Relief and further denies any violations of statutes or regulations. The Defendant makes no admission of liability, and nothing herein shall be deemed an admission of fault of any kind by Defendant.
7. The parties have stated their desire to resolve this matter amicably and without
going to trial.
8. The parties agree that this Court has jurisdiction over the subject matter of this
case pursuant to 28 U.S.C. $ 1331 and 28 U.S.C. $ 1345.
9. The parties agree that the issue in this case is limited to individuals who age out of
the MF/TD waiver program upon attaining 2l years of age and are no longer eligible for the
MF/TD waiver program. The parties further agree that the MF/TD Waiver program and eligibility for the MF/TD waiver program for those who have not yet attained the age of 21 years is not the subject of this litigation and that any actions taken by Defendant with respect to the MF/TD waiver program and eligibility for the MF/TD waiver program are not material to this action. Nothing in this Consent Decree is intended to prevent or direct any changes to the
MF/TD Waiver program for persons prior to the date they attain the age of 21 years.
10. This Consent Decree shall not override or supersede any requirements or
restrictions established by Title XIX, federal law, federal regulation, state law, state regulation,
or the federal Centers for Medicare and Medicaid Services (CMS), including the extent to which any procedure and/or covered service available under this Consent Decree may require or be
subject to federal approval by federal CMS in accordance with Title XIX. Any service covered
pursuant to this Consent Decree must be eligible for Federal Financial Participation. The terms of this Consent Decree shall not require the Defendant to cover or fund any services that the

Case: 1:10-cv-03121 Document #: 240 Filed: 10/03/13 Page 4 of 10 PageID #:3124

individual did not receive, or for which the individual was not eligible, prior to attaining 2l years

of age. The terms of this Consent Decree shall not require the Defendant to cover Class Members

under any specific program, including but not limited to the Home Services Program as it exists

at the time this Consent Decree is entered, or federal financing mechanism. Defendant shall have

the flexibility to work with the federal government to determine the most appropriate financing

mechanism.
I 1.

HFS may establish eligibility and/or resource allocation requirements, standards

and limitations. HFS will utilize a standardized assessment tool(s) that objectively determines
medical necessity, level of services, and resource allocation requirements, standards or

limitations for class members. HFS will utilize a person-centered approach.
12. A class member's need, level and amount of medical services will be based upon
medical necessity, not the chronological age of the class member. The tool will allocate

resources based on medical need and allow the class member the option to choose federally

approved services including but not limited to licensed nursing and/or personal attendant

services.
13. Service plans and assessments will be based upon the individual's support system
in addition to the medical needs. The service plans will address the numbers and levels of service hours-including back-up plans, emergency plans, and training of caregivers. If the

medical needs allow for self-direction, service plans will give participants the opportunity to

choose self-directed models of care conceivably allowing more service hours.
14. Emergency room and hospitalizations will be monitored and if there are frequent

Emergency Room visits or hospitalizations, the service plan, including nursing services or care

coordination, may be adjusted temporarily to attempt to reduce Emergency Room visits and

Case: 1:10-cv-03121 Document #: 240 Filed: 10/03/13 Page 5 of 10 PageID #:3125
hospitalizations.
15. Except as described in Paragraph23, service plans will be reviewed annually and
may be reviewed in interim periods if necessary to address changes in needs, stability, risk
factors, or other circumstances found through case management.
16. Any changes in medical services and service plans will be discussed with the
individual and family prior to implementation.
17. Since services will be based on medical necessity, where indicated through
assessment, service will be gradually reduced through titration. In these instances, individuals will be closely monitored to assure their medical needs are not compromised.
18. Medical case management will be available beyond age 2l for continuity of care
upon transition from children to adult services.
19. The level of case management will be determined by an HFS approved
assessment and will be reviewed on an ongoing basis. Higher levels of case management will provide support for families, with more assistance to families with greater needs, linkage to services, and availability for trouble shooting and problem solving. Higher levels of case management will also include promptly identifying and acting on changes in medical conditions
to determine the need for any temporary increase in hours.
20. Any changes in case management will be discussed with the individual and family
prior to implementation.
21. HFS, or any successor agency, may make medical necessity, or resource
determinations, and/or establish utilization control procedures through the use of Quality Improvement Organrzations. HFS shall retain the authority to establish eligibility criteria,
medical necessity criteria and cost sharing as permitted by Title XIX and, where applicable,

Case: 1:10-cv-03121 Document #: 240 Filed: 10/03/13 Page 6 of 10 PageID #:3126
approved by federal CMS. HFS may require class members to enroll with a managed care entity
or other form of care coordination entity for any or all care coordination, case management
and/or services delivered and nothing in this Consent Decree shall prohibit the Defendant, HFS
or any successor agency from using care coordination entities or managed care entities as
authorized under Title XIX.
22. Upon entry of the Consent Decree, any Temporary Restraining Order (TRO) or
Preliminary Injunction shall be dissolved by the Court. In the time frame described in paragraph
23, HFS shall review the level of services identified in any TRO or Preliminary Injunction through the completion of an assessment and establishment of a new service plan via the level of care tool described herein. HFS will agree to maintain the level of services identified in any
TRO or Preliminary Injunction until the completion of an assessment and establishment of a new service plan.
23. Class members will be initially assessed as follows: a. at 6 months prior to turning 21 years of age; b. within 120 days from the date of the Consent Decree for any class
members with a TRO or preliminary injunction in place;
c. within 120 days of a request for individuals who were served under the
MF/TD Waiver and who have turned 2l years old and who do not have a
TRO in place.
24. Class members who are dissatisfied with any service planning issue shall have the
right to appeal under the administrative processes set forth at 89 Ill. Admin. Code Sections 104.1
- 104.80.
25. Nothing in this Consent Decree shall operate to limit any individual's freedom of
6

Case: 1:10-cv-03121 Document #: 240 Filed: 10/03/13 Page 7 of 10 PageID #:3127

choice as required by Title XIX of the Social Security Act and, to the extent any class member

chooses to participate in any other home and community-based services program, which may be

operated pursuant to a federal Title XIX waiver, the terms of this Consent Decree shall not apply

and shall not require the alteration or modification of the program chosen by the individual.
26. This Consent Decree is based on existing State and Federal law. If either party

believes a change in State or Federal law impacts the terms of the Decree, it shall notify the other

party and attempt to negotiate a resolution. If negotiation is unsuccessful, after 45 days, the issue

may be presented to the Court for resolution. Until such time as there is a negotiated or court-

imposed resolution, both parties will continue to abide by the terms of the Consent Decree.

.27

This Consent Decree shall be in effect for three years from the date of entry. The

Court shall retain jurisdiction to enforce the terms of the Consent Decree during its duration,

after which time the case shall be dismissed with prejudice.
28. Defendant shall provide to Plaintiffs' counsel, upon a reasonable request and
within a reasonable time frame, identifying information as to the Class Members. All

information provided to the Plaintiffs' counsel shall be considered confidential in accordance

with the terms of the Agreed Protective Order, entered in this case on September 27,2010 (Civil

Docket Document No. 53), which shall continue apply to any such disclosure of confidential

information to the Plaintiff s counsel.

Case: 1:10-cv-03121 Document #: 240 Filed: 10/03/13 Page 8 of 10 PageID #:3128
29. Within 90 days of the date of entry of this Consent Decree, the Defendant shall
pay to Plaintiffs' counsel the sum of $525,000 (Five Hundred Twenty-Five Thousand Dollars), in settlement of all claims by Plaintiffs or their attorneys for attorneys' fees and litigation costs.
doL/-.' rt So ordered thisflta aur
States District Judge
ISTGNATURE PAGE FOLLOWSI

Case: 1:10-cv-03121 Document #: 240 Filed: 10/03/13 Page 9 of 10 PageID #:3129

EacH UNpSRSTGNED Pe,nry enters into this Consent Decreo in the matter of Hampev" Hamos, Case No, 10-3121, pending in the United States District Court for the Northern District

of Iilinois, Eastem Division.

FoRrnr Plamnrr Cuss:
n"t", b/nf t?

SEL:

/r

F'oR Dsrui{peNT, DlnscroR oF
Iurnors Drpnnrnarnr or
Hr,lr,rnc.a.nr axo FEurr,Y SeRvrcps:
Date:
As ArronNBY FoR DEFENTTaNT:
Date:

Case: 1:10-cv-03121 Document #: 240 Filed: 10/03/13 Page 10 of 10 PageID #:3130
Encu UNoenstcNru PlRrv enters into this Consent Decree in the matter of Hampe v. Hamos, Case No. 10-3121, pending in the United States District Court for the Northern District of lllinois, Eastem Division. FonrsB PlnlnnrrCLAss:
Date:
Fon Cuass Counsrl:
Date:
Fon DprsxDANT, Dlnsc'roR or
Iuunols DEPARTMENToF HslrrHcaRr AND Feurly Snnvtcss: As ATToRNEY roR DurrnnexT:
9

 
 Case: 1:10-cv-03121 Document #: 243 Filed: 08/26/15 Page 1 of 1 PageID #:3154

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

William R Hampe et al Plaintiff,
v. Julie Hamos et al
Defendant,

) ) ) ) ) No. 10cv3121 ) ) Chief Judge Ruben Castillo ) )

ORDER

Motion hearing held on 8/26/15. Plaintiff’s motion for rule to show cause and other relief [241] is granted in part and denied in part. Attorney fees are awarded to the plaintiff in the amount of $2,600.

(00:04)

Dated: August 26, 2015

/s/ Chief Judge Ruben Castillo

 
 Case: 1:10-cv-3121 As of: 10/27/2017 06:53 PM CDT 1 of 20
CASREF,KEYS,PROTO,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.1.1.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:10−cv−03121

Hampe et al v. Hamos Assigned to: Honorable Ruben Castillo Cause: 42:12101 Americans with Disabilities Act
Plaintiff

Date Filed: 05/20/2010 Date Terminated: 07/09/2013 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

William R Hampe next of friend Jill Hampe

represented by Robert Hugh Farley , Jr. Robert H. Farley, Jr., Ltd. 1155 South Washington Naperville, IL 60540 (630) 369−0103 Email: farleylaw@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Denise Cahill Cahill and Associates 1155 South Washington Street Suite 106 Naperville, IL 60540 (630)778−6500 Email: mdcahill@sbcglobal.net ATTORNEY TO BE NOTICED

Plaintiff Richard L. Winfrey, III

represented by Robert Hugh Farley , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Denise Cahill (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Adam Cale

represented by Mary Denise Cahill (See above for address) ATTORNEY TO BE NOTICED

Robert Hugh Farley , Jr. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Olivia Welter next of friend John Welter next of friend Tamara Welter

represented by Mary Denise Cahill (See above for address) ATTORNEY TO BE NOTICED
Robert Hugh Farley , Jr. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

represented by

Case: 1:10-cv-3121 As of: 10/27/2017 06:53 PM CDT 2 of 20

Jacob Stracka next of friend David Stracka next of friend Nicole Stracka

Mary Denise Cahill (See above for address) ATTORNEY TO BE NOTICED
Robert Hugh Farley , Jr. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Charles Stout

represented by Mary Denise Cahill (See above for address) ATTORNEY TO BE NOTICED

Robert Hugh Farley , Jr. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Phillip Baron next of friend Barbara Baron

represented by Mary Denise Cahill (See above for address) ATTORNEY TO BE NOTICED

Robert Hugh Farley , Jr. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jessica Lytle Individually and on behalf of a class next of friend Judith A. Lytle

represented by Mary Denise Cahill (See above for address) ATTORNEY TO BE NOTICED
Robert Hugh Farley , Jr. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Kristen Kocourek

V. Defendant Julie Hamos in her official capacity as Director of the Illinois Department of Healthcare and Family Services
Movant

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
John E. Huston Illinois Attorney General's Office 160 North LaSalle Street Suite N−1000 Chicago, IL 60601 (312)793−2380 Email: John.Huston@illinois.gov ATTORNEY TO BE NOTICED

Case: 1:10-cv-3121 As of: 10/27/2017 06:53 PM CDT 3 of 20

The United States of America

represented by AUSA − Chicago United States Attorney's Office (NDIL − Chicago) 219 South Dearborn Street Chicago, IL 60604 Email: USAILN.ECFAUSA@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 05/20/2010 05/20/2010 05/20/2010 05/20/2010 05/20/2010 05/23/2010
05/23/2010
05/23/2010
05/24/2010 05/27/2010 05/27/2010 05/28/2010
05/28/2010 06/02/2010 06/02/2010 06/02/2010
06/08/2010

# Docket Text
1 COMPLAINT filed by William R Hampe; Filing fee $ 350, receipt number 0752−4835513.(Farley, Robert) (Entered: 05/20/2010)
2 CIVIL Cover Sheet (Farley, Robert) (Entered: 05/20/2010)
3 ATTORNEY Appearance for Plaintiff William R Hampe by Robert Hugh Farley, Jr (Farley, Robert) (Entered: 05/20/2010)
CASE ASSIGNED to the Honorable William J. Hibbler. Designated as Magistrate Judge the Honorable Arlander Keys. (lcw, ) (Entered: 05/20/2010)
SUMMONS Issued as to Defendant Julie Hamos (emd, ) (Entered: 05/20/2010)
4 MOTION by Plaintiff William R Hampe for temporary restraining order and preliminary injunction (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Farley, Robert) (Entered: 05/23/2010)
5 MEMORANDUM by William R Hampe in support of motion for temporary restraining order 4 and preliminary injunction (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Farley, Robert) (Entered: 05/23/2010)
6 Plaintiff's NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion for temporary restraining order 4 before Honorable William J. Hibbler on 6/1/2010 at 09:30 AM. (Farley, Robert) (Entered: 05/23/2010)
7 SUMMONS Returned Executed by William R Hampe as to Julie Hamos on 5/24/2010, answer due 6/14/2010. (Farley, Robert) (Entered: 05/24/2010)
8 ATTORNEY Appearance for Defendant Julie Hamos by Karen Elaine Konieczny (Konieczny, Karen) (Entered: 05/27/2010)
9 ATTORNEY Appearance for Defendant Julie Hamos by John E. Huston (Huston, John) (Entered: 05/27/2010)
10 MINUTE entry before Honorable William J. Hibbler: Enter Agreed Order granting plaintiff's motion for temporary restraining order # 4 . The order shall remain in effect until further order of Court. Status hearing to set scheduling order set for 8/3/2010 at 9:30 a.m. Parties to submit joint proposed discovery schedule to the Court by 8/2/2010. [For further details see separate order(s).] Mailed notice (ber, ) (Entered: 06/02/2010)
11 AGREED ORDER Signed by the Honorable William J. Hibbler on 5/28/2010. (ber, ) (Entered: 06/02/2010)
12 MOTION by Plaintiff William R Hampe to certify class (Attachments: # 1 Exhibit A)(Farley, Robert) (Entered: 06/02/2010)
13 MEMORANDUM by William R Hampe in support of motion to certify class 12 (Farley, Robert) (Entered: 06/02/2010)
14 Plaintiff's NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion to certify class 12 before Honorable William J. Hibbler on 6/8/2010 at 09:30 AM. (Farley, Robert) (Entered: 06/02/2010)
15 MINUTE entry before Honorable William J. Hibbler: Motion hearing held on 6/8/2010. Plaintiffs' Motion for class certification 12 is entered. Defendant to respond to the motion by 7/6/2010. Plaintiffs to reply by 7/16/2010. Ruling will be by mail

Case: 1:10-cv-3121 As of: 10/27/2017 06:53 PM CDT 4 of 20

06/14/2010 07/06/2010 07/11/2010 07/11/2010 07/11/2010 07/15/2010 07/15/2010
07/16/2010 07/16/2010
07/16/2010 07/16/2010 07/16/2010 07/23/2010
07/23/2010 07/26/2010 07/26/2010

unless otherwise notified. Status hearing set for 8/3/2010 is stricken and reset to 7/28/2010 at 9:30 A.M. Joint discovery schedule date is reset to 7/26/2010. Mailed notice by judge's staff. (srb,) (Entered: 06/08/2010)
16 Affirmative Defenses and ANSWER to Complaint with Certificate of Service by Julie Hamos(Huston, John) (Entered: 06/14/2010)
17 RESPONSE by Julie Hamosin Opposition to MOTION by Plaintiff William R Hampe to certify class 12 with Certificate of Service (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Konieczny, Karen) (Entered: 07/06/2010)
18 MOTION by Plaintiff William R Hampe to amend/correct Leave To File An Amended Complaint Instanter (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Farley, Robert) (Entered: 07/11/2010)
19 MOTION by Plaintiff William R Hampe for extension of time to file Reply to Defendant's Response to Class Certification (Farley, Robert) (Entered: 07/11/2010)
20 Plaintiff's NOTICE of Motion by Robert Hugh Farley, Jr for presentment of extension of time 19 , motion to amend/correct 18 before Honorable William J. Hibbler on 7/15/2010 at 09:30 AM. (Farley, Robert) (Entered: 07/11/2010)
21 Plaintiffs AMENDED complaint by William R Hampe against Julie Hamos (Farley, Robert) (Entered: 07/15/2010)
22 MINUTE entry before Honorable William J. Hibbler: Motion hearing held on 7/15/2010. Plaintiff's unopposed motion for extension of time to file reply 19 is granted. Plaintiff to file reply to motion for class certification by 7/23/2010. Plaintiff's Motion for leave to file an amended complaint 18 is granted as stated in open court. Defendant to answer or otherwise plead to amended complaint by 8/3/2010. Status hearing set for 7/28/2010 is stricken and reset to 8/24/2010 at 9:30 A.M. Discovery is held in abeyance. Mailed notice by judge's staff. (srb,) (Entered: 07/15/2010)
23 MOTION by Plaintiff Richard L. Winfrey, III for temporary restraining order and preliminary injunction (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Farley, Robert) (Entered: 07/16/2010)
24 MEMORANDUM by Richard L. Winfrey, III in support of motion for temporary restraining order 23 and preliminary injunction (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Farley, Robert) (Entered: 07/16/2010)
25 Plaintiff Winfrey's NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion for temporary restraining order 23 before Honorable William J. Hibbler on 7/22/2010 at 09:30 AM. (Farley, Robert) (Entered: 07/16/2010)
26 statement of interest STATEMENT by The United States of America (Johnson, Patrick) (Entered: 07/16/2010)
27 REPLY by William R Hampe to response in opposition to motion 17 for class certification (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Farley, Robert) (Entered: 07/16/2010)
32 MINUTE entry before Honorable William J. Hibbler: Enter Agreed Order granting plaintiff Richard L. Winfrey, III's motion for temporary restraining order # 23 . The order shall remain in effect until further order of the Court. Status hearing date of 8/3/2010 at 9:30 a.m. to set scheduling order to stand. Joint discovery schedule to be submitted to the Court by 8/2/2010. [For further details see separate order(s).] Mailed notice (ber, ) (Entered: 07/28/2010)
33 AGREED ORDER Signed by the Honorable William J. Hibbler on 7/23/2010. (ber, ) (Entered: 07/28/2010)
28 MOTION by Defendant Julie HamosRoutine Motion to Cite Additional Authority with Exhibit A and Certificate of Service (Konieczny, Karen) (Entered: 07/26/2010)
29 Certificate of Service and NOTICE of Motion by Karen Elaine Konieczny for presentment of motion for miscellaneous relief 28 before Honorable William J. Hibbler on 8/3/2010 at 09:30 AM. (Konieczny, Karen) (Entered: 07/26/2010)

Case: 1:10-cv-3121 As of: 10/27/2017 06:53 PM CDT 5 of 20

07/27/2010 07/27/2010 08/02/2010 08/02/2010 08/02/2010
08/03/2010 08/06/2010 08/06/2010 08/11/2010
08/11/2010 08/11/2010 08/11/2010 08/11/2010 08/17/2010 08/18/2010
08/24/2010

30 RESPONSE by William R Hampe to MOTION by Defendant Julie HamosRoutine Motion to Cite Additional Authority with Exhibit A and Certificate of Service 28 (Farley, Robert) (Entered: 07/27/2010)
31 ATTORNEY Appearance for Plaintiff Richard L. Winfrey, III by Robert Hugh Farley, Jr (Farley, Robert) (Entered: 07/27/2010)
34 REPORT of Rule 26(f) Planning Meeting (Huston, John) (Entered: 08/02/2010)
35 REPORT of Rule 26(f) Planning Meeting (Farley, Robert) (Entered: 08/02/2010)
36 MINUTE entry before Honorable William J. Hibbler: Defendant's Routine Motion to cite additional authority 28 is granted. The Court having previously reset the status hearing to 8/24/2010 at 9:30 AM, the 7/23/10 order setting the status to 8/3/2010 is vacated. Parties to submit joint proposed discovery to the Court by 8/20/2010. Mailed notice (jdh) (Entered: 08/02/2010)
37 Affirmative Defenses and ANSWER to amended complaint and Certificate of Service by Julie Hamos(Huston, John) (Entered: 08/03/2010)
38 MOTION by Plaintiff William R Hampe to amend/correct for leave of court to file second amended complaint instanter (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Farley, Robert) (Entered: 08/06/2010)
39 Plaintiffs NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion to amend/correct 38 before Honorable William J. Hibbler on 8/11/2010 at 09:30 AM. (Farley, Robert) (Entered: 08/06/2010)
40 MINUTE entry before Honorable William J. Hibbler: Motion hearing held on 8/11/2010 regarding motion to amend/correct 38 .MOTION by Plaintiff William R Hampe to amend/correct for leave of court to file second amended complaint instanter 38 is granted, the seconded amended complaint shall be filed by the close of business 8/11/2010. Defendant to answer the second amended complaint on or before 8/24/2010. The status date of 8/24/2010 is stricken. A joint proposed discovery schedule to be filed by 9/3/2010. Status hearing reset for 9/7/2010 at 09:30 AM.Mailed notice (jdh, ) (Entered: 08/11/2010)
41 PLAINTIFFS SECOND AMENDED complaint by Adam Cale, William R. Hampe, Richard L. Winfrey, III against Julie Hamos (Farley, Robert) "Text edited by Clerk's Office to reflect correct filer." Modified on 8/13/2010 (ber, ). (Entered: 08/11/2010)
42 MOTION by Plaintiff Adam Cale for preliminary injunction and temporary restraining order (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Farley, Robert) (Entered: 08/11/2010)
43 MEMORANDUM by Plaintiff Adam Cale in support of Plaintiff's Motion for Temporary Restraining Order & Preliminary Injunction (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Farley, Robert) (Entered: 08/11/2010)
44 Plaintiff Adam Cale's NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion for preliminary injunction 42 before Honorable William J. Hibbler on 8/18/2010 at 09:30 AM. (Farley, Robert) (Entered: 08/11/2010)
45 DECLARATION of Jane Woerly Supplemental (Second) Declaration in support of Plaintiff Cale's Motion for Temporary Restraining Order and Preliminary Injunction (Attachments: # 1 Exhibit A)(Farley, Robert) (Entered: 08/17/2010)
46 MINUTE entry before Honorable William J. Hibbler: Motion hearing held on 8/18/2010 regarding motion for preliminary injunction 42 . Plaintiff Adan Cale's Motion for preliminary injunction 42 is continued to 8/25/2010 at 2:00 PM. By agreement of the parties plaintiff is to receive the same level of skilled nursing services, 116.5 hours per week and 336 hours of respite per year, pending the outcome of the case. Mailed notice (jdh) (Entered: 08/23/2010)
47 Affirmative Defenses and ANSWER to amended complaint (Second) and certificate of service by Julie Hamos(Huston, John) (Entered: 08/24/2010)

Case: 1:10-cv-3121 As of: 10/27/2017 06:53 PM CDT 6 of 20

08/26/2010 08/26/2010 09/02/2010 09/07/2010
09/27/2010
09/27/2010 10/28/2010 10/28/2010 10/28/2010 11/02/2010
11/02/2010 11/04/2010
11/10/2010 11/15/2010

48 MINUTE entry before Honorable William J. Hibbler: Motion by plaintiff for preliminary injunction and temporary restraining order 42 is granted. Enter Agreed Order. [For further detail see separate order(s).] Mailed notice (ber, ) (Entered: 08/27/2010)
49 AGREED ORDER Signed by the Honorable William J. Hibbler on 8/26/2010. (ber, ) (Entered: 08/27/2010)
50 REPORT of Rule 26(f) Planning Meeting (Farley, Robert) (Entered: 09/02/2010)
51 MINUTE entry before Honorable William J. Hibbler: Status hearing held on 9/7/2010 and continued to 11/4/2010 at 9:30 AM. The Court adopts the joint proposed discovery schedule. Parties to comply with FRCP 26(a)(1) by 9/24/2010. The parties shall have a maximum of 40 interrogatories per side, the maximum number of requests for admission by each side shall be 100 and a maximum number of 30 depositions by each side. Parties given to and including 10/29/10 to amend all pleadings and to add any additional parties. Fact discovery ordered closed by 1/31/2011. Plaintiff shall comply with FRCP(26)(a)(2) by 3/31/2011. Defendant shall comply with FRCP(26)(a)(2) by 6/2/2011. Deposition of experts to be completed by 6/30/2011. Dispositive motions with supporting memoranda due by 8/15/2011. Mailed notice (jdh) (Entered: 09/09/2010)
52 MINUTE entry before Honorable William J. Hibbler: Enter Agreed Protective Order. The Protective Order governs pre−trial proceedings only. Parties need leave of court prior to filing any documents Under Seal. Parties to file a motion to retrieve any documents filed Under Seal within 60 days after the close of this case. If a party fails to file a motion, any documents under seal will become part of the public record. [For further detail see separate order(s).] Mailed notice (ber, ) (Entered: 09/30/2010)
53 AGREED PROTECTIVE Order Signed by the Honorable William J. Hibbler on 9/27/2010. (ber, ) (Entered: 09/30/2010)
54 Plaintiffs Hampe, Winfrey, Cale and Others, Third AMENDED complaint by Olivia Welter, Jacob Stracka, Charles Stout, Phillip Baron, Jessica Lytle against Julie Hamos (Farley, Robert) (Entered: 10/28/2010)
55 Plaintiffs MOTION by Plaintiff William R Hampe for leave to appear as additional attorney appearance Plaintiffs (Farley, Robert) (Entered: 10/28/2010)
56 Plaintiff NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion for leave to appear 55 before Honorable William J. Hibbler on 11/4/2010 at 09:30 AM. (Farley, Robert) (Entered: 10/28/2010)
57 MINUTE entry before Honorable William J. Hibbler: Enter Agreed Order directing plaintiff Olivia Welter to receive the same level of Medicaid and skilled nursing services, 112 hours per week and 336 hours of respite per year and not reduce her level of benefits on her twenty−first birthday. Defendant shall take all steps necessary to effectuate this order so as to not interrupt the receipt of services following the plaintiff's 21st birthday on 11/9/2010. By agreement of the parties this Order shall be in effect until further order of the Court. [For further detail see separate order(s)]. Mailed notice (ber, ) (Entered: 11/04/2010)
58 AGREED ORDER Signed by the Honorable William J. Hibbler on 11/2/2010. (ber, ) (Entered: 11/04/2010)
59 MINUTE entry before Honorable William J. Hibbler: Status hearing held on 11/4/2010 and continued to 12/15/2010 at 9:30 AM. Plaintiffs' Motion for leave of court to file additional appearance of Mary Denise Cahill 55 is granted. Defendant to answer or otherwise respond plaintiff's third amended complaint by 11/18/2010. Mailed notice (jdh) (Entered: 11/05/2010)
60 Additional Appearance by Phillip Baron, Adam Cale, William R Hampe, Jessica Lytle, Charles Stout, Jacob Stracka, Olivia Welter, Richard L. Winfrey, III (Cahill, Mary) (Entered: 11/10/2010)
61 MOTION by Plaintiff William R Hampe to amend/correct for leave to file Fourth Amended Complaint (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Farley, Robert) (Entered: 11/15/2010)

Case: 1:10-cv-3121 As of: 10/27/2017 06:53 PM CDT 7 of 20

11/15/2010 11/18/2010 11/18/2010 11/18/2010 11/18/2010 11/18/2010
11/19/2010 11/19/2010 11/19/2010 11/21/2010 11/22/2010 11/22/2010 11/23/2010
11/23/2010 12/04/2010

62 Plaintiffs NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion to amend/correct 61 before Honorable William J. Hibbler on 11/18/2010 at 09:30 AM. (Farley, Robert) (Entered: 11/15/2010)
63 MOTION by Defendant Julie Hamos to dismiss Certain Plaintiffs as Misjoined Parties (Attachments: # 1 Exhibit A)(Konieczny, Karen) (Entered: 11/18/2010)
64 MEMORANDUM by Julie Hamos in support of motion to dismiss 63 Certain Plaintiffs as Misjoined Parties and Response to Plaintiffs' Motion to File Fourth Amended Complaint (Attachments: # 1 Exhibit A − C)(Konieczny, Karen) (Entered: 11/18/2010)
65 NOTICE by Julie Hamos re memorandum in support of motion 64 , MOTION by Defendant Julie Hamos to dismiss Certain Plaintiffs as Misjoined Parties 63 and Certificate of Service (Konieczny, Karen) (Entered: 11/18/2010)
66 ATTORNEY Appearance for Plaintiffs Phillip Baron, Adam Cale, William R Hampe, Jessica Lytle, Charles Stout, Jacob Stracka, Olivia Welter, Richard L. Winfrey, III by Mary Denise Cahill (Cahill, Mary) (Entered: 11/18/2010)
70 MINUTE entry before Honorable William J. Hibbler: Motion hearing held on 11/18/2010 regarding motion to amend/correct 61 . Plaintiffs' Motion to amend/correct 61 is taken under advisement. Motion to dismiss 63 is taken under advisement. Responses due by 11/19/2010. Motion Hearing set for 11/23/2010 at 11:00 AM. Mailed notice (jdh) (Entered: 11/19/2010)
67 MOTION by Plaintiff Kristen Kocourek for temporary restraining order and preliminary injunction (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Farley, Robert) (Entered: 11/19/2010)
68 MEMORANDUM of Law in support of Kristen Kocourek Motion for Temporary Restraining Order and Preliminary Injunction (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Farley, Robert) (Entered: 11/19/2010)
69 Plaintiff Kristen Kocourek NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion for temporary restraining order 67 before Honorable William J. Hibbler on 11/23/2010 at 11:00 AM. (Farley, Robert) (Entered: 11/19/2010)
71 RESPONSE by William R Hampein Opposition to MOTION by Defendant Julie Hamos to dismiss Certain Plaintiffs as Misjoined Parties 63 (Attachments: # 1 Exhibit A)(Farley, Robert) (Entered: 11/21/2010)
74 MINUTE entry before Honorable William J. Hibbler: Enter Memorandum Opinion and Order. The Court Grants Plaintiffs' Motion to Certify a Class. [For further details see separate order.] Mailed notice (ber, ) (Entered: 11/30/2010)
75 MEMORANDUM Opinion and Order Signed by the Honorable William J. Hibbler on 11/22/2010. (ber, ) (Entered: 11/30/2010)
72 MINUTE entry before Honorable William J. Hibbler: Motion hearing held on 11/23/2010. Plaintiff's motion to certify class 12 is granted. Plaintiff's motion to file fourth amended complaint 61 is withdrawn. Defendant to answer or plead to plaintiff's third amended complaint by 12/21/10. Defendant's motion to dismiss certain plaintiffs as misjoined parties 63 is moot. Status hearing set for 12/15/10 is stricken and reset to 1/6/11 at 9:30 a.m. Amended disclosure schedule due 1/4/11. Enter Agreed Order granting Plaintiff's Motion for temporary restraining order and preliminary injunction 67 . [For further detail see separate order(s).] Mailed notice (ber, ) (Entered: 11/30/2010)
73 AGREED ORDER Signed by the Honorable William J. Hibbler on 11/23/2010. (ber, ) (Entered: 11/30/2010)
76 MOTION by Plaintiff Phillip Baron for temporary restraining order and preliminary injunction on behalf of Plaintiffs, BARON, LYTLE, STRACKA and Class Member, ST. CLAIR (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Farley, Robert) Modified on 12/6/2010 (ber, ). (Entered: 12/04/2010)

Case: 1:10-cv-3121 As of: 10/27/2017 06:53 PM CDT 8 of 20

12/04/2010 12/04/2010 12/06/2010 12/08/2010
12/08/2010 12/09/2010
12/09/2010 12/09/2010
12/09/2010 12/16/2010
12/16/2010

77 MEMORANDUM by Phillip Baron in support of motion for temporary restraining order, 76 and preliminary injunction on behalf of Plaintiffs, BARON, LYTLE, STRACKA and Class Member ST. CLAIR (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Farley, Robert) Modified on 12/6/2010 (ber, ). (Entered: 12/04/2010)
78 Plaintiffs BARON, LYTLE, STRACKA and Class Member, ST. CLAIR NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion for temporary restraining order, 76 before Honorable William J. Hibbler on 12/9/2010 at 09:30 AM. (Farley, Robert) (Entered: 12/04/2010)
79 DECLARATION of Dr. Sean Diamond regarding motion for temporary restraining order, 76 in support of Plaintiff Baron's Motion for Temporary Restraining Order and Preliminary Injunction (Farley, Robert) (Entered: 12/06/2010)
80 MINUTE entry before Honorable William J. Hibbler: Enter Agreed Order that class member Phillip Peters shall receive the same level of Medicaid and skilled nursing services, 56 hours per week and 336 hours of respite per year and not reduce his level of benefits on his twenty−first birthday. Defendant shall take all steps necessary to effectuate this order so as to not interrupt the receipt of services following class member's 21st birthday on 12/14/2010. By agreement of the parties this Order shall be in effect until further order of the Court. [For further detail see separate order(s).] Mailed notice (ber, ) (Entered: 12/10/2010)
81 AGREED ORDER Signed by the Honorable William J. Hibbler on 12/8/2010. (ber, ) (Entered: 12/10/2010)
84 MINUTE entry before Honorable William J. Hibbler: Status hearing reset to 1/5/2011 at 1:30 p.m. Filing of joint proposed discovery schedule held in abeyance until further order of court. Enter Agreed Order that plaintiff Phillip Baron shall receive the same level of Medicaid and skilled nursing services, 112 hours per week and 336 hours of respite per year and not reduce his level of benefits on his twenty−first birthday. Defendant shall take all steps necessary to effectuate this order so as to not interrupt the receipt of services following plaintiff's 21st birthday on 1/4/2011. By agreement of the parties this Order shall be in effect until further order of the Court. [For further detail see separate order(s).] Mailed notice (ber, ) (Entered: 12/21/2010)
85 AGREED ORDER Signed by the Honorable William J. Hibbler on 12/9/2010. (ber, ) (Entered: 12/21/2010)
86 MINUTE entry before Honorable William J. Hibbler: Motion hearing held. Hearing on plaintiff's motion for temporary restraining order as to Jessica L. Lytle set for 1/5/2011 at 1:30 p.m. Enter Agreed Order that plaintiff Jacob Stracka shall receive the same level of Medicaid and skilled nursing services, 112 hours per week and 336 hours of respite per year and not reduce her level of benefits on his twenty−first birthday. Defendant shall take all steps necessary to effectuate this order so as to not interrupt the receipt of services following plaintiff's 21st birthday on 1/20/2011. By agreement of the parties this Order shall be in effect until further order of the Court. [For further detail see separate order(s).] Mailed notice (ber, ) (Entered: 12/21/2010)
87 AGREED ORDER Signed by the Honorable William J. Hibbler on 12/9/2010. (ber, ) (Entered: 12/21/2010)
82 MINUTE entry before Honorable William J. Hibbler: Enter Agreed Order that class member Jessica Lytle shall receive the same level of Medicaid and skilled nursing services, 112 hours per week when Jessica is in school and 154 hours of skilled nursing services per week (22 hours per day) when Jessica is out of school in the summer and during holidays/extended breaks) and not reduce her level of benefits on her first twenty−first birthday. Defendant shall take all steps necessary to effectuate this order so as to not interrupt the receipt of services following plaintiff's 21st birthday on 1/10/2011. By agreement of the parties this Order shall be in effect until further order of Court. [For further detail see separate order(s).] Mailed notice (ber, ) (Entered: 12/20/2010)
83 AGREED ORDER Signed by the Honorable William J. Hibbler on 12/16/2010. (ber, ) (Entered: 12/20/2010)

Case: 1:10-cv-3121 As of: 10/27/2017 06:53 PM CDT 9 of 20

12/16/2010
12/16/2010 12/21/2010 01/05/2011 02/10/2011 02/16/2011
03/21/2011 03/21/2011 04/20/2011 04/26/2011
04/26/2011 06/02/2011 06/02/2011 06/08/2011

88 MINUTE entry before Honorable William J. Hibbler: Enter Agreed Order that class member Jameson St. Clair shall receive the same level of Medicaid and skilled nursing services, 112 hours per week (minus any hours provided by the school district or personal assistant hours paid by DHS/DORS) and 336 hours of respite per year and not reduce her level of benefits on his twenty−first birthday. Defendant shall take all steps necessary to effectuate this order so as to not interrupt the receipt of services following plaintiff's 21st birthday on 12/19/2011. By agreement of the parties this Order shall be in effect until further order of the Court. [For further detail see separate order(s).] Mailed notice (ber, ) (Entered: 12/21/2010)
89 AGREED ORDER Signed by the Honorable William J. Hibbler on 12/16/2010. (ber, ) (Entered: 12/21/2010)
90 Defendant's Affirmative Defenses and ANSWER to amended complaint (Third) and Certificate of Service by Julie Hamos(Huston, John) (Entered: 12/21/2010)
91 MINUTE entry before Honorable William J. Hibbler: Status hearing held on 1/5/2011 and continued to 2/16/2011 at 9:30 AM. Parties to submit joint proposed discovery schedule to the Court by 2/14/2011. Plaintiffs' Motion for TRO as to Jessica Lytle 76 is terminated as moot.Mailed notice (jdh) (Entered: 01/06/2011)
92 JOINT Proposed Discovery Schedule by Plaintiff William R Hampe −Joint Proposed Discovery Schedule (Farley, Robert) Modified on 2/17/2011 (ber, ). (Entered: 02/10/2011)
93 MINUTE entry before Honorable William J. Hibbler: Status hearing held on 2/16/2011 and continued to 4/20/2011 at 9:30 AM. The Court adopts the revised joint proposed discovery schedule as amended. The parties shall have a maximum of 50 interrogatories per side, the maximum number of requests for admission by each side shall be 100 and a maximum number of 30 depositions by each side. Fact discovery ordered closed by 9/30/2011. Mailed notice (jdh) (Entered: 03/11/2011)
94 MINUTE entry before Honorable William J. Hibbler: Enter Agreed Order regarding class member, Lauren Reimer. [For further detail see separate order(s).] Mailed notice (ber, ) (Entered: 03/23/2011)
95 AGREED ORDER Signed by the Honorable William J. Hibbler on 3/21/2011. (ber, ) (Entered: 03/23/2011)
96 MINUTE entry before Honorable William J. Hibbler: Status hearing held on 4/20/2011 and continued to 7/27/2011 at 9:30 AM. Mailed notice (jdh) (Entered: 04/20/2011)
97 MINUTE entry before Honorable William J. Hibbler: Enter Agreed Order that class member Quantell Wood shall receive the same level of Medicaid and skilled nursing services (50 hours per week and 336 hours of respite per year) and not reduce his level of benefits on his twenty−first birthday. Defendant shall take all steps necessary to effectuate this order so as to not interrupt the receipt of services following the class member's 21st birthday on 4/29/2011. The class member agrees to cooperate in the administration of his care and services described above, including, but not limited to case management services. By agreement of the parties this Order shall be in effect until further order of the Court. [For further detail see separate order(s).] Mailed notice (ber, ) (Entered: 04/28/2011)
98 AGREED ORDER Signed by the Honorable William J. Hibbler on 4/26/2011. (ber, ) (Entered: 04/28/2011)
99 MOTION by Defendant Julie Hamos for leave to file Amended Affirmative Defenses & Answer to Plaintiffs' Third Amended Complaint (Attachments: # 1 Exhibit A)(Huston, John) (Entered: 06/02/2011)
100 Certificate of Service and NOTICE of Motion by John E. Huston for presentment of motion for leave to file 99 before Honorable William J. Hibbler on 6/9/2011 at 09:30 AM. (Huston, John) (Entered: 06/02/2011)
101 MINUTE entry before Honorable William J. Hibbler: Defendants' Motion for leave to file amended affirmative defenses and answer to plaintiffs' third amended complaint for declaratory and injunctive relief 99 is granted. Mailed notice (jdh) (Entered:

Case: 1:10-cv-3121 As of: 10/27/2017 06:53 PM CDT 10 of 20

06/08/2011 06/13/2011
06/13/2011 06/13/2011
06/13/2011 07/21/2011 07/27/2011 09/21/2011 10/20/2011 10/20/2011
10/20/2011 11/15/2011

06/08/2011)
102 AMENDED Affirmative Defenses and Answer to plaintiffs' third amended complaint for declaratory and injunctive relief by Julie Hamos. (ber, ) (Entered: 06/09/2011)
103 MINUTE entry before Honorable William J. Hibbler: Enter Agreed Order that class member Gwendolyn Riddick shall receive the same level of Medicaid and skilled nursing services (100 hours per week and 336 hours of respite per year) and not reduce her level of benefits on her twenty−first birthday. Defendant shall take all steps necessary to effectuate this order so as to not interrupt the receipt of services following the class member's 21st birthday on 6/21/11. The class member agrees to cooperate in the administration of her care and services described above, including but not limited to case management services. By agreement of the parties this Order shall be in effect until further order of the Court. [For further detail see separate order(s).] Mailed notice (ber, ) (Entered: 06/15/2011)
104 AGREED ORDER Signed by the Honorable William J. Hibbler on 6/13/2011. (ber, ) (Entered: 06/15/2011)
105 MINUTE entry before Honorable William J. Hibbler: Enter Agreed Order that class member Joshua Draper shall receive the same level of Medicaid and skilled nursing services (100 hours per week when Joshua attends school and 80 hours per week when Joshua is not in school and 336 hours of respite per year) and not reduce his level of benefits on his twenty−first birthday. Defendant shall take all steps necessary to effectuate this order so as to not interrupt the receipt of services following the class member's 21st birthday on 6/28/11. The class member agrees to cooperate in the administration of his care and services described above, including, but not limited to case management services. By agreement of the parties this Order shall be in effect until further order of the Court. [For further detail see separate order(s).] (ber, ) (Entered: 06/15/2011)
106 AGREED ORDER Signed by the Honorable William J. Hibbler on 6/13/2011. (ber, ) (Entered: 06/15/2011)
108 AGREED ORDER Signed by the Honorable William J. Hibbler on 7/21/2011. (ber, ) (Entered: 08/05/2011)
107 MINUTE entry before Honorable William J. Hibbler: Status hearing held and continued to September 21, 2011 at 9:30 a.m.Mailed notice(air, ) (Entered: 07/27/2011)
109 MINUTE entry before Honorable William J. Hibbler: Status hearing held on 9/21/2011 and continued to 10/20/2011 at 9:30 AM. Mailed notice (jdh) (Entered: 09/22/2011)
110 MINUTE entry before Honorable William J. Hibbler: Status hearing held on 10/20/2011 and continued to 11/30/2011 at 9:30 AM. Mailed notice (jdh) (Entered: 10/20/2011)
111 MINUTE entry before Honorable William J. Hibbler: Enter Agreed Order that class member Mark Kragel shall receive the same level of Medicaid and skilled nursing service (88 hours per week when Mark attends school and 108 hours per week when he is not in school minus any hours provided through the Illinois Department of Rehabilitation Services and 336 hours of respite per year) and not reduce his level of benefits on his twenty−first birthday. Defendant shall take all steps necessary to effectuate this order so as to not interrupt the receipt of services following the class member's 21st birthday on 11/19/11. The class member agrees to cooperate in the administration of his care and services described above, including, but not limited to case management services. By agreement of the parties this order shall be in effect until further order of the Court. [For further detail see separate order(s).]Mailed notice (mjc, ) (Entered: 10/24/2011)
112 AGREED ORDER Signed by the Honorable William J. Hibbler on 10/20/2011.(mjc, ) (Entered: 10/24/2011)
113 MINUTE entry before Honorable William J. Hibbler: Enter Agreed Order that class member Jo Vontae Ishmon shall receive the same level of Medicaid and skilled nursing service (72 hours per week when Jo Vontae is in school and 112 hours per

Case: 1:10-cv-3121 As of: 10/27/2017 06:53 PM CDT 11 of 20

11/15/2011 11/30/2011 11/30/2011 12/28/2011
12/28/2011 01/17/2012

week when he is not in school and 336 hours of respite per year Jo Vontae receives 16 hours of skilled nursing services per day when he does not attend school due to illness, holiday, school closing or any other reason) and not reduce his level of benefits on his twenty−first birthday. Defendant shall take all steps necessary to effectuate this order so as to no interrupt the receipt of services following the class member's 21st birthday on 11/27/11. Class member agrees to cooperate in the administration of his care and services described above, including, but not limited to case management services. [For further detail see separate order(s).]Mailed notice (mjc, ) (Entered: 11/22/2011)
114 AGREED ORDER Signed by the Honorable William J. Hibbler on 11/15/2011.(mjc, ) (Entered: 11/22/2011)
115 MINUTE entry before Honorable William J. Hibbler:Status hearing held and continued to 1/10/2012 at 09:30 AM.Mailed notice (jms, ) (Entered: 11/30/2011)
116 MINUTE entry before Honorable William J. Hibbler: For the reasons stated in open court, the order of 4/26/2011 [#98] is vacated.Mailed notice (jms, ) (Entered: 11/30/2011)
117 MINUTE entry before Honorable William J. Hibbler: Enter Agreed Order that class member Keenan Saddler shall receive the same level of Medicaid and skilled nursing service (112 hours per week and 336 hours per year) and not reduce his level of benefits on his twenty−first birthday. Defendant shall take all steps necessary to effectuate this order so as to not interrupt the receipt of services following the class member's 21st birthday on 1/13/12. The class member agrees to cooperate in the administration of his care and services described above, including, but not limited to case management services. By agreement of the parties this order shall be in effect until further order of the Court. [For further detail see separate order(s).]Mailed notice (mjc, ) (Entered: 12/30/2011)
118 AGREED ORDER Signed by the Honorable William J. Hibbler on 12/28/2011.(mjc, ) (Entered: 12/30/2011)
119 TRANSCRIPT OF PROCEEDINGS held on 11/30/2011 before the Honorable William J. Hibbler. Court Reporter Contact Information: ALEXANDRA ROTH, (312) 408−5038, alexandra_roth@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.

01/23/2012 01/23/2012 01/26/2012 01/26/2012 01/26/2012

Redaction Request due 2/7/2012. Redacted Transcript Deadline set for 2/17/2012. Release of Transcript Restriction set for 4/16/2012. (Roth, Alexandra) (Entered: 01/17/2012)
120 MOTION by Plaintiff William R Hampe to reassign case of Chad−White Smith v. Hamos, Case No. 12 CV 41 and consolidate with Hampe v. Hamos 10−3121 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Farley, Robert) (Entered: 01/23/2012)
121 Plaintiffs NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion to reassign case 120 before Honorable William J. Hibbler on 2/7/2012 at 09:30 AM. (Farley, Robert) (Entered: 01/23/2012)
122 MOTION by Plaintiff William R Hampe for temporary restraining order and preliminary injunction on behalf of Class member, Jermaine Sutherland (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Farley, Robert) (Entered: 01/26/2012)
123 MEMORANDUM by William R Hampe in support of motion for temporary restraining order, 122 and preliminary injunction on behalf of Class member, Jermaine Sutherland (Farley, Robert) (Entered: 01/26/2012)
124 Plaintiffs NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion for temporary restraining order, 122 before Honorable William J. Hibbler on 2/7/2012 at

Case: 1:10-cv-3121 As of: 10/27/2017 06:53 PM CDT 12 of 20

02/02/2012 02/03/2012 02/06/2012 02/08/2012
02/08/2012 02/09/2012 02/17/2012 02/21/2012 02/21/2012 02/24/2012
02/26/2012

09:30 AM. (Farley, Robert) (Entered: 01/26/2012)
125 MINUTE entry before Honorable Amy J. St. Eve: Presentment date of 2/7/12 before Judge Hibbler is stricken. Plaintiff's motion for tro/preliminary injunction 122 is being referred to Magistrate Judge Keys. Referral order to follow shortly. Plaintiff's motion for reassignment and consolidation 120 is entered. Response should be filed by 2/9/12. Status hearing before Judge Hibbler set for 3/8/2012 at 09:30 AM.Mailed notice (kef, ) (Entered: 02/02/2012)
127 EXECUTIVE COMMITTEE ORDER: Case referred to the Honorable Arlander Keys for Class member Jermaine Sutherlands motion for a temporary restraining order and preliminary injunction 122 . Signed by Executive Committee on 2/3/12.(mjc, ) (Entered: 02/07/2012)
126 MINUTE entry before Honorable Arlander Keys:Motion for TRO 122 is entered and continued before Judge Arlander Keys on 2/8/2012 at 09:00 AM.Mailed notice (ac, ) (Entered: 02/06/2012)
129 MINUTE entry before Honorable Arlander Keys: Motion hearing held on Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction on Behalf of Class Member, Jermaine Sutherland 122 . The parties have executed an agreed order covering the issue pursuant to which the motion was brought. Therefore, there is no need for injunctive relief at this time. The motion is denied, without prejudice, as moot with the entry of the Agreed Order. Enter Agreed Order. All matters relating to this action having been resolved, the case is returned to the assigned judge. See attached order for further detail. Mailed notices (gcy, ) (Entered: 02/09/2012)
130 AGREED ORDER Signed by the Honorable Arlander Keys on 2/8/2012:(mb, ) (Entered: 02/10/2012)
128 RESPONSE by Julie Hamosin Opposition to MOTION by Plaintiff William R Hampe to reassign case of Chad−White Smith v. Hamos, Case No. 12 CV 41 and consolidate with Hampe v. Hamos 10−3121 120 and Certificate of Service (Attachments: # 1 Exhibit A)(Konieczny, Karen) (Entered: 02/09/2012)
131 REPLY by William R Hampe to response in opposition to motion, 128 for Plaintiffs' Motoin for Reassignment and Consolidation (Farley, Robert) (Entered: 02/17/2012)
132 MOTION by Plaintiff William R Hampe to amend/correct as to Class Member, Jermain Sutherland, the Agreed Order of February 8, 2012 and Motion for Preliminary Injunction (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Farley, Robert) (Entered: 02/21/2012)
133 NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion to amend/correct, 132 before Honorable Arlander Keys on 2/24/2012 at 09:00 AM. (Farley, Robert) (Entered: 02/21/2012)
138 MINUTE entry before Honorable Arlander Keys: This matter was referred to this Court on 2/3/2012 on plaintiff Jermaine Sutherland's motion for temporary restraining order and preliminary injunction 122 . the motion was resolved at the hearing on 2/28/2012 when the parties presented an agreed order which the court signed and entered 129 . On 2/21/2012, plaintiff filed a motion to amend/correct the agreed order and another motion for preliminary injunction 132 . the motion seeks to amend the agreed order by adding provisions to which the parties cannot agree. At the hearing on 2/23/2012, the Court permitted expedited discovery on the issue, which cuts off on 3/9/2012 and set a hearing on the matter for 3/16/2012. Plaintiff sought to have defendant agree to provide the additional relief he is seeking immediately, pending the outcome of the hearing before this Court, to which defendant would not agree. This Court does not have jurisdiction to order defendant to provide the immediate relief that plaintiff seeks, which is, in effect, a temporary restraining order. Only the District Judge may order such relief. Mailed notice (mjc, ) Modified on 6/15/2012 (amb, ). (Entered: 02/29/2012)
134 MOTION by Plaintiff William R Hampe for temporary restraining order on behalf of Class Member, Jermaine Sutherland (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Farley, Robert) (Entered: 02/26/2012)

Case: 1:10-cv-3121 As of: 10/27/2017 06:53 PM CDT 13 of 20

02/26/2012 02/26/2012 02/27/2012 02/27/2012 02/27/2012 03/05/2012 03/05/2012 03/07/2012 03/09/2012
03/15/2012 03/15/2012 03/15/2012 03/21/2012
03/22/2012
03/26/2012

135 MEMORANDUM of Law in Support of Class Member's Jermaine Sutherland Motion for a Temporary Restraining Order (Farley, Robert) (Entered: 02/26/2012)
136 NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion for temporary restraining order, 134 before Honorable Ronald A. Guzman on 2/27/2012 at 09:30 AM. (Farley, Robert) (Entered: 02/26/2012)
137 MINUTE entry before Honorable Ronald A. Guzman: Motion hearing held on 2/27/2012. Motion for Plaintiff William R Hampe for temporary restraining order on behalf of Class Member, Jermaine Sutherland 134 is granted. Mailed notice (cjg, ) (Entered: 02/27/2012)
139 MINUTE entry before Honorable Ronald A. Guzman: Enter temporary restraining order. Order shall remain in effect until March 16, 2012. [For further detail see separate order(s).] Mailed notice(mjc, ) (mjc, ). (Entered: 02/29/2012)
140 ORDER Signed by the Honorable William J. Hibbler on 2/27/2012.(mjc, ) (Entered: 02/29/2012)
141 MOTION by Defendant Julie Hamosto Set a Pretrial Conference (Konieczny, Karen) (Entered: 03/05/2012)
142 NOTICE of Motion by Karen Elaine Konieczny for presentment of motion for miscellaneous relief 141 before Honorable Arlander Keys on 3/9/2012 at 09:00 AM. (Konieczny, Karen) (Entered: 03/05/2012)
143 MINUTE entry before Honorable William J. Hibbler: Status hearing reset to 3/15/2012 at 10:00 AM. Mailed notice (jdh) (Entered: 03/07/2012)
144 MINUTE entry before Honorable Arlander Keys: Hearing held on Defendant's motion to set a pretrial conference. For the reasons stated during the hearing, the motion is denied. [#142]. The contested issues to be considered in the preliminary injunction hearing are rather straightforward and should not require the Court's involvement prior to the hearing. The hearing will be concluded in a matter of hours, not days, and it is not anticipated that extensive documents and stipulations will be necessary. However, to the extent that certain documents or stipulations will obviate the necessity of, or shorten, testimonial evidence on certain issues, the parties are encouraged to do so. The parties should prepare to argue orally at the hearing in lieu of filing post−hearing briefs.Mailed notice (mjc, ) (Entered: 03/12/2012)
145 MINUTE entry before Honorable Arlander Keys: Enter Agreed Order. The agreed order entered 2/8/2012 is vacated. The hearing set for 3/16/2012 is vacated. See attached order for further detail. Mailed notice (tg, ) (Entered: 03/16/2012)
146 AGREED ORDER Signed by the Honorable Arlander Keys on 3/15/2012.(tg, ) (Entered: 03/16/2012)
147 MINUTE entry before Honorable William J. Hibbler: Status hearing reset to 4/3/2012 at 10:00 AM. Mailed notice (jdh) (Entered: 03/20/2012)
148 EXECUTIVE COMMITTEE ORDER: It appearing that cases previously assigned to the Honorable William J. Hibbler require reassignment, therefore It is hereby ordered that the cases on the attached list are to be reassigned to other judges of this Court as indicated. Case reassigned to the Honorable Ruben Castillo for all further proceedings. Signed by Executive Committee on 3/21/12. Mailed notices. (lw, ) (Entered: 03/21/2012)
149 MINUTE entry before Honorable Ruben Castillo:This case has been transferred to this Court's docket. The parties are requested to immediately exhaust all settlement possibilities and consider whether the parties agree to consent to the general jurisdiction of the designated magistrate judge. If a settlement stipulation or a consent to the magistrate is not filed, the parties are directed to file a joint status report on or before 4/2/2012. The Court will hold a status hearing in open court on 4/5/2012 at 1:30 PM.Mailed notice (rao, ) (Entered: 03/22/2012)
150 STATUS Report by Plaintiffs and Defendant by William R Hampe (Farley, Robert) (Entered: 03/26/2012)

Case: 1:10-cv-3121 As of: 10/27/2017 06:53 PM CDT 14 of 20

04/05/2012
05/11/2012 05/14/2012 05/14/2012 05/15/2012
05/22/2012 05/22/2012 06/06/2012 06/06/2012 06/06/2012 06/08/2012
06/27/2012 06/27/2012 06/27/2012 06/27/2012 07/03/2012

151 MINUTE entry before Honorable Ruben Castillo:Status hearing held on 4/5/2012. The Court will hold a settlement conference in chambers on 5/15/2012 at 1:00 PM. Clients with settlement authority are directed to appear or be available by telephone. The Court will rule by mail on Plaintiffs' motion for reassignment and consolidation 120 .Mailed notice (rao, ) (Entered: 04/05/2012)
152 MINUTE entry before Honorable Ruben Castillo:The settlement conference set for 5/15/2012 will begin at 1:30 PM.Mailed notice (rao, ) (Entered: 05/11/2012)
154 MINUTE entry before Honorable Ruben Castillo: Enter Agreed Order regarding the level of Medicaid and skilled nursing services for class member, Andrew J. Weekly. [ For further detail see separate order(s).] Mailed notice (tg, ) (Entered: 05/16/2012)
155 AGREED ORDER Signed by the Honorable Ruben Castillo on 5/14/2012.(tg, ) (Entered: 05/16/2012)
153 MINUTE entry before Honorable Ruben Castillo:Settlement conference held in chambers on 5/15/2012. Defendant's counsel are requested to draft an acceptable consent decree and tender same to Plaintiffs' counsel on or before 6/6/2012. The Court will hold another settlement conference in chambers on 6/29/2012 at 11:00 a.m. Plaintiffs' motion to reassign case No. 12 C 41 and consolidate with this case 120 is granted. Plaintiffs' motion to amend the order as to class member Jermain Sutherland 132 is denied without prejudice as moot. Mailed notice (rao, ) (Entered: 05/15/2012)
156 MINUTE entry before Honorable Ruben Castillo: Enter Agreed Order to Vacate. Due to the death of Mark Kragel, the Agreed Order (Doc. No. 112 ) is vacated. [ For further detail see separate order(s).] Mailed notice (tg, ) (Entered: 05/24/2012)
157 AGREED ORDER to Vacate Signed by the Honorable Ruben Castillo on 5/22/2012. (tg, ) (Entered: 05/24/2012)
158 MOTION by Defendant Julie Hamos for extension of time to draft Consent Decree and Reset Settlement Conference (Huston, John) (Entered: 06/06/2012)
159 NOTICE of Motion by John E. Huston for presentment of extension of time 158 before Honorable Ruben Castillo on 6/13/2012 at 09:45 AM. (Huston, John) (Entered: 06/06/2012)
160 NOTICE of Motion by John E. Huston for presentment of extension of time 158 before Honorable Ruben Castillo on 6/13/2012 at 09:45 AM. (Huston, John) (Entered: 06/06/2012)
161 MINUTE entry before Honorable Ruben Castillo:Defendant's motion to enlarge the time to draft consent decree and to reset settlement conference 158 is granted. The draft Consent Decree is due 7/18/2012. Settlement conference reset to 8/21/2012 at 1:00 PM. The motion hearing set for 6/13/2012 and the settlement conference set for 6/29/2012 are vacated.Mailed notice (rao, ) (Entered: 06/08/2012)
162 MOTION by Plaintiff William R Hampe for temporary restraining order and preliminary injunction for Class Member, Bronwyn Newton and Corey Willis (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Farley, Robert) (Entered: 06/27/2012)
163 NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion for temporary restraining order, 162 before Honorable Ruben Castillo on 7/3/2012 at 09:45 AM. (Farley, Robert) (Entered: 06/27/2012)
164 MEMORANDUM of Law in Support of Class Members, Bronwyn Newton and Corey Willis' Motion for Temporary Restraining Order and Preliminary Injunction (Farley, Robert) (Entered: 06/27/2012)
MOTION by Plaintiff William R Hampe for preliminary injunction. (Omitted Relief for 162 ) ea (Entered on 6/28/12) (ea, ) (Entered: 06/28/2012)
165 MINUTE entry before Honorable Ruben Castillo:Motion hearing held on 7/3/2012. Class members Bronwyn Newton and Corey Willis' verified motion for a temporary restraining order and preliminary injunction 162 is granted. Enter Agreed Order as to class member, Bronwyn Newton. Enter Agreed Order as to class member, Corey Willis. [For further detail see separate order(s)] Mailed notice (tg, ) (Entered:

Case: 1:10-cv-3121 As of: 10/27/2017 06:53 PM CDT 15 of 20

07/03/2012 07/03/2012 07/24/2012 07/24/2012 08/21/2012
08/23/2012 08/23/2012 08/23/2012
08/23/2012 08/23/2012 08/23/2012 08/23/2012 08/29/2012
09/08/2012 09/08/2012

07/06/2012)
166 AGREED ORDER Signed by the Honorable Ruben Castillo on 7/3/2012.(tg, ) (Entered: 07/06/2012)
167 AGREED ORDER Signed by the Honorable Ruben Castillo on 7/3/2012.(tg, ) (Entered: 07/06/2012)
168 MINUTE entry before Honorable Ruben Castillo:Enter Agreed Order as to class member, Tyler R. Falco. [For further detail see separate order(s).] Mailed notice (tg, ) (Entered: 07/26/2012)
169 AGREED ORDER Signed by the Honorable Ruben Castillo on 7/24/2012.(tg, ) (Entered: 07/26/2012)
170 MINUTE entry before Honorable Ruben Castillo: Settlement conference held in Chambers. The Court reluctantly concludes that this class action lawsuit cannot be presently settled. Plaintiff is given until 10/5/12 to file a motion for summary judgment on behalf of the certified class. Defendants response will be due on or before 11/2/12. Any reply will be due on or before 11/30/12. The Court will rule by mail. Mailed notice (tlp, ) (Entered: 08/21/2012)
171 MOTION by Plaintiff William R Hampe for summary judgment (Farley, Robert) (Entered: 08/23/2012)
172 MOTION by Plaintiff William R Hampe for leave to file excess pages for Memorandum of Law in support of Plaintiffs' Motion for Summary Judgment and to exceed paragraph limits for Summary Judgment Statement of Facts (Farley, Robert) (Entered: 08/23/2012)
173 Plaintiffs' Statement of Material Facts Pursuant To Local Rule 56.1(a)(3) STATEMENT by William R Hampe (Attachments: # 1 Exhibit 1, 2, 3, 5, 7, # 2 Exhibit 9, # 3 Exhibit 12, 14, 18, 19, 20, # 4 Exhibit 21, 22, 23, 24, 25, 26, # 5 Exhibit 28, 29, 30, 31, 32, 33, 34, 35, # 6 Exhibit 36, 37, 38, 39, 40, # 7 Exhibit 41, 42, 43, 44, 45, # 8 Exhibit 46, 47, 48, 49, 50, 51)(Farley, Robert) (Entered: 08/23/2012)
174 SEALED EXHIBIT by Plaintiff William R Hampe as to Plaintiffs' Materials Relied Upon in Support of Summary Judgment (Doc. 173) (Attachments: # 1 Exhibit 4, 6, 8, # 2 Exhibit 10, 11, # 3 Exhibit 13, 15, 16, 17, # 4 Exhibit 27)(Farley, Robert) (Entered: 08/23/2012)
175 Exhibit List as to Plaintiffs' Materials Relied Upon in Support of Summary Judgment Pursuant to Local Rule 56.1(a)(1) by William R Hampe. (Farley, Robert) (Entered: 08/23/2012)
176 MEMORANDUM of Law in Support of Plaintiffs' Motion for Summary Judgment (Farley, Robert) (Entered: 08/23/2012)
177 NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion for leave to file excess pages 172 , motion for summary judgment 171 before Honorable Ruben Castillo on 8/29/2012 at 09:45 AM. (Farley, Robert) (Entered: 08/23/2012)
178 MINUTE entry before Honorable Ruben Castillo:Motion hearing held on 8/29/2012. Plaintiffs' motion to exceed paragraph limits for Summary Judgment Statement of Facts and to exceed page limit for Memorandum of Law in Support of Summary Judgment 172 is granted. Defendants are granted leave to file the same paragraph limits and page limit as the Plaintiffs. Defendant's response to Plaintiffs' Motion for Summary Judgment 171 is due 10/10/2012. Plaintiffs' reply will be due 10/24/2012. The Court will rule by mail.Mailed notice (rao, ) (Entered: 08/29/2012)
179 MOTION by Plaintiff William R Hampe for temporary restraining order and preliminary injunction on behalf of Class member, Travis Jones (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Farley, Robert) (Entered: 09/08/2012)
180 MEMORANDUM of Law in Support of Class Member, Travis Jones' Motion for Temporary Restraining Order and Preliminary Injunction (Farley, Robert) (Entered: 09/08/2012)

Case: 1:10-cv-3121 As of: 10/27/2017 06:53 PM CDT 16 of 20

09/08/2012 09/11/2012
09/11/2012
09/11/2012 09/20/2012 09/20/2012 10/05/2012 10/05/2012 10/10/2012
10/10/2012 10/10/2012 10/10/2012 10/10/2012 10/10/2012 10/10/2012 10/10/2012 10/14/2012

181 NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion for temporary restraining order 179 before Honorable Ruben Castillo on 9/18/2012 at 09:45 AM. (Farley, Robert) (Entered: 09/08/2012)
182 DECLARATION of Dr. Donald F. Davison regarding motion for temporary restraining order 179 in support of Class Member, Travis Jones' Motion for Temporary Restraining Order and Preliminary Injunction (Attachments: # 1 Exhibit C)(Farley, Robert) (Entered: 09/11/2012)
183 MINUTE entry before Honorable Ruben Castillo: Enter Agreed Order as to class member, Travis Jones. Class member Travis Jones' verified motion for a temporary restraining order and preliminary injunction 179 is denied as moot. The motion hearing set for 9/18/2012 is vacated. [For further detail see separate order(s).] Mailed notice (tg, ) (Entered: 09/13/2012)
184 AGREED ORDER Signed by the Honorable Ruben Castillo on 9/11/2012.(tg, ) (Entered: 09/13/2012)
185 MINUTE entry before Honorable Ruben Castillo: Enter Agreed Order as to class member, Akil Pang. [For further detail see separate order(s).] Mailed notice (tg, ) (Entered: 09/24/2012)
186 AGREED ORDER Signed by the Honorable Ruben Castillo on 9/20/2012. (tg, ) (Entered: 09/24/2012)
187 MINUTE entry before Honorable Ruben Castillo: Enter Agreed as to class, Darius Johnson.[For further detail see separate order(s).] mailed notice (tg, ) (Entered: 10/10/2012)
188 AGREED ORDER Signed by the Honorable Ruben Castillo on 10/5/2012. (tg, ) (Entered: 10/10/2012)
189 RESPONSE by Defendant Julie Hamos to Plaintiffs' Statement of Material Facts and Defendant's Rule 56.1(b)(3)(C) Statement of Additional Material Facts with Certificate of Service (Attachments: # 1 Exhibit A and B)(Konieczny, Karen) (Entered: 10/10/2012)
190 RESPONSE by Julie Hamosin Opposition to MOTION by Plaintiff William R Hampe for summary judgment 171 and Memorandum Of Law in Support of Defendant's Motion for Summary Judgment (Konieczny, Karen) (Entered: 10/10/2012)
191 MOTION by Defendant Julie Hamos for summary judgment (Konieczny, Karen) (Entered: 10/10/2012)
192 RULE 56 56.1(a)(3) Statement of Material Facts in Support of Defendant's Motion for Summary Judgment (Attachments: # 1 Exhibit A and B)(Konieczny, Karen) (Entered: 10/10/2012)
193 MEMORANDUM of Law in Support of Defendant's Motion for Summary Judgment (Konieczny, Karen) (Entered: 10/10/2012)
194 NOTICE of Motion by Karen Elaine Konieczny for presentment of motion for summary judgment 191 before Honorable Ruben Castillo on 10/16/2012 at 09:45 AM. (Konieczny, Karen) (Entered: 10/10/2012)
195 MOTION by Defendant Julie Hamos for leave to file excess pages her Memorandum of Law in Support of Motion for Summary Judgment (Konieczny, Karen) (Entered: 10/10/2012)
196 NOTICE of Motion by Karen Elaine Konieczny for presentment of motion for leave to file excess pages 195 before Honorable Ruben Castillo on 10/16/2012 at 09:45 AM. (Konieczny, Karen) (Entered: 10/10/2012)
197 REPLY by Plaintiff William R Hampe Plaintiffs' Reply to Defendant's Response to Plaintiffs' Motion for Summary Judgment and Plaintiffs' Response to Defendant's Motion for Summary Judgment (Attachments: # 1 Exhibit A)(Farley, Robert) (Entered: 10/14/2012)

Case: 1:10-cv-3121 As of: 10/27/2017 06:53 PM CDT 17 of 20

10/14/2012
10/16/2012
10/25/2012 11/26/2012 11/26/2012 12/06/2012 12/06/2012 12/06/2012 12/12/2012
12/19/2012
12/21/2012 12/21/2012 01/08/2013
01/08/2013 01/09/2013 01/30/2013 01/30/2013

198 RESPONSE by Plaintiff William R Hampe Plaintiffs' Response to Defendant's Rule 56.1(b)(3)(C) Statement of Additional Facts and Plaintiffs' Response to Defendant's Rule 56.1(A)(3) Statement of Facts (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Farley, Robert) (Entered: 10/14/2012)
199 MINUTE entry before Honorable Ruben Castillo:Motion hearing held on 10/16/2012. Defendant's motion for leave to file memorandum of law in support of her motion for summary judgment in excess of fifteen pages 195 is granted. Defendant's reply in support of her motion for summary judgment 191 is due on or before 10/26/2012. The Court will rule by mail.Mailed notice (rao, ) (Entered: 10/16/2012)
200 REPLY by Julie Hamos to reply, 197 and Plaintiffs' Response to Defendant's Motion for Summary Judgment with Certificate of Service (Konieczny, Karen) (Entered: 10/25/2012)
201 MINUTE entry before Honorable Ruben Castillo: Enter Agreed Order as to class member, Brandon Major. (For further detail see separate order.) Mailed notice. (ym, ) (Entered: 11/27/2012)
202 AGREED ORDER Signed by the Honorable Ruben Castillo on 11/26/2012.(ym, ) (Entered: 11/27/2012)
203 MOTION by Plaintiff William R Hampe for temporary restraining order and preliminary injunction on behalf of Class member, Ryan Nieves (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Farley, Robert) (Entered: 12/06/2012)
204 MEMORANDUM of Law in Support of Class Member, Ryan Nieves' Motion for Temporary Restraining Order and Preliminary Injunction (Farley, Robert) (Entered: 12/06/2012)
205 NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion for temporary restraining order 203 before Honorable Ruben Castillo on 12/12/2012 at 09:45 AM. (Farley, Robert) (Entered: 12/06/2012)
206 MINUTE entry before Honorable Ruben Castillo:Motion hearing held on 12/12/2012. Class member Ryan Nieves' motion for a Temporary Restraining Order and Preliminary Injunction 203 is entered and continued to 12/19/2012 at 9:45 AM.Mailed notice (rao, ) (Entered: 12/12/2012)
207 MINUTE entry before Honorable Ruben Castillo:Motion hearing held on 12/19/2012. Class member Ryan Nieves' motion for temporary restraining order and preliminary injunction 203 is entered and continued to 1/9/2013 at 9:45 AM.Mailed notice (rao, ) (Entered: 12/19/2012)
208 MINUTE entry before Honorable Ruben Castillo: Enter Agreed Order as to class member, Penelope Rosas. (For further detail see separate order.) Mailed notice. (ym, ) (Entered: 12/26/2012)
209 AGREED ORDER Signed by the Honorable Ruben Castillo on 12/21/2012.(ym, ) (Entered: 12/26/2012)
210 MINUTE entry before Honorable Ruben Castillo: Enter Memorandum Opinion and Order. Plaintiff's motion for summary judgment 171 is denied. Defendant's motion for summary judgment 191 is denied. The Court will hold a status hearing on 2/5/2013 at 9:45 a.m. to set a firm trial date. (For further detail see separate order.) Mailed notice. (ym, ) (Entered: 01/10/2013)
211 MEMORANDUM Opinion and Order Signed by the Honorable Ruben Castillo on 1/8/2013.(ym, ) (Entered: 01/10/2013)
212 MINUTE entry before Honorable Ruben Castillo:Motion hearing held on 1/9/2013. Class member Ryan Nieves' motion for temporary restraining order and preliminary injunction 203 is voluntarily withdrawn.Mailed notice (rao, ) (Entered: 01/10/2013)
213 MOTION by Plaintiff William R Hampe for extension of time to reopen fact discovery on certain limited matters (Farley, Robert) (Entered: 01/30/2013)
214 NOTICE of Motion by Robert Hugh Farley, Jr for presentment of extension of time 213 before Honorable Ruben Castillo on 2/5/2013 at 09:45 AM. (Farley, Robert)

Case: 1:10-cv-3121 As of: 10/27/2017 06:53 PM CDT 18 of 20

02/05/2013 03/08/2013 03/12/2013 03/12/2013 03/21/2013 04/30/2013
05/06/2013 05/16/2013
05/20/2013

(Entered: 01/30/2013)
215 MINUTE entry before Honorable Ruben Castillo:Status hearing held on 2/5/2013 and continued to 3/21/2013 at 1:00 p.m. Plaintiffs' motion to reopen fact discovery on certain limited matters 213 is entered and continued to 3/21/2013 at 1:00 p.m.Mailed notice (rao, ) (Entered: 02/05/2013)
216 MINUTE entry before Honorable Ruben Castillo:The status hearing and motion hearing on Plaintiffs' motion to reopen fact discovery on certain limited matters 213 are reset to 3/21/2013 at 9:45 AM. Mailed notice (rao, ) (Entered: 03/08/2013)
217 MINUTE entry before Honorable Ruben Castillo: Enter Agreed Order as to class member, Andrew Slaw. (For further detail see separate order.) Mailed notice. (ym, ) (Entered: 03/13/2013)
218 AGREED ORDER Signed by the Honorable Ruben Castillo on 3/12/2013.(ym, ) (Entered: 03/13/2013)
219 MINUTE entry before Honorable Ruben Castillo:Status hearing held on 3/21/2013 and continued to 4/30/2013 at 9:45 AM. Plaintiff's motion for extension of time to reopen fact discovery on certain limited matters 213 is entered and continued generally.Mailed notice (rao, ) (Entered: 03/21/2013)
220 MINUTE entry before Honorable Ruben Castillo:Status hearing held on 4/30/2013. The Court will hold a settlement conference in chambers on 5/6/2013 at 3:00 p.m. Plaintiff's motion for extension of time to reopen fact discovery on certain limited matters 213 is entered and continued to 5/6/2013 at 3:00 p.m.Mailed notice (rao, ) (Entered: 04/30/2013)
221 MINUTE entry before Honorable Ruben Castillo:Settlement conference held in chambers on 5/6/2013 on the issue remaining in this class lawsuit. Good progress made toward a potential global settlement. The settlement conference will resume on 5/16/2013 at 12:00 p.m. in chambers.Mailed notice (rao, ) (Entered: 05/06/2013)
222 MINUTE entry before Honorable Ruben Castillo:Continued settlement conference held in chambers on 5/16/2013. Full settlement reached on all issues between the parties. The parties should present a joint motion for approval for the proposed class settlement at the earliest time possible. The Court will hold a status hearing in open court on 7/9/2013 at 10:00 AM.Mailed notice (rao, ) (Entered: 05/16/2013)
223 TRANSCRIPT OF PROCEEDINGS held on 2/5/13 before the Honorable Ruben Castillo. Court Reporter Contact Information: Kathleen M. Fennell, Kathleen_Fennell@ilnd.uscourts.gov.

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

05/21/2013 06/04/2013 06/04/2013 07/02/2013

Redaction Request due 6/10/2013. Redacted Transcript Deadline set for 6/20/2013. Release of Transcript Restriction set for 8/19/2013. (Fennell, Kathleen) (Entered: 05/20/2013)
224 MINUTE entry before Honorable Ruben Castillo:Given the Court's recent settlement of all the issues in this lawsuit, Plaintiffs' motion to reopen fact discovery 213 is denied as moot.Mailed notice (rao, ) (Entered: 05/21/2013)
225 MINUTE entry before Honorable Ruben Castillo: Enter Agreed Order as to class member, Harli Hamilton. (For further detail see separate order.) Mailed notice. (ym, ) (Entered: 06/05/2013)
226 AGREED ORDER Signed by the Honorable Ruben Castillo on 6/4/2013.(ym, ) (Entered: 06/05/2013)
227 MOTION by Defendant Julie HamosJoint Motion for Preliminary Approval of COnsent Decree, Class Notice and to Set Date for Fairness Hearing (Attachments: # 1

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07/02/2013 07/02/2013 07/09/2013
07/09/2013
07/09/2013 07/09/2013 07/18/2013 09/26/2013 10/01/2013 10/01/2013 10/01/2013 10/03/2013 10/03/2013 08/12/2015 08/12/2015 08/26/2015
09/25/2015

Exhibit A − C)(Konieczny, Karen) (Entered: 07/02/2013)
228 MEMORANDUM in Support of Joint Motion for Preliminary Approval of Consent Decree, Class Notice and to Set Date for Fairness Hearing (Konieczny, Karen) (Entered: 07/02/2013)
229 NOTICE of Motion by Karen Elaine Konieczny for presentment of motion for miscellaneous relief 227 before Honorable Ruben Castillo on 7/9/2013 at 09:45 AM. (Konieczny, Karen) (Entered: 07/02/2013)
230 MINUTE entry before Honorable Ruben Castillo:Status hearing held on 7/9/2013 and continued to 9/23/2013 at 10:00 a.m. Joint motion for preliminary approval of consent decree, class notice, and to set a date for a fairness hearing 227 is granted. Signature Order will follow. Fairness hearing set for 10/3/2013 at 1:30 p.m. Mailed notice (rao, ) (Entered: 07/09/2013)
231 MINUTE entry before Honorable Ruben Castillo: Enter Agreed Order. Enter Legal Notice of Proposed Class Action Settlement and Hearing. Given the Court's preliminary approval of the proposed class consent decree, this lawsuit is administratively dismissed without prejudice with full leave to reinstate if this Court does not give final approval to the proposed class action consent decree after the final fairness hearing on October 3, 2013. Civil case terminated. [For further detail see separate order(s). Mailed notices (gcy, ) Modified on 7/14/2013 (rao, ). (Entered: 07/10/2013)
232 AGREED ORDER Entered by the Honorable Ruben Castillo on 7/9/2013:(gcy, ) (Entered: 07/10/2013)
233 LEGAL NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND HEARING Entered by the Honorable Ruben Castillo on 7/9/2013:(gcy, ) (Entered: 07/10/2013)
234 MINUTE entry before Honorable Ruben Castillo:Enter Agreed Order as to class member, Devon Brown.Mailed notice(rao, ) (Entered: 07/18/2013)
235 MINUTE entry before Honorable Ruben Castillo:Fairness hearing set for 10/3/2013 at 1:30 PM.Mailed notice (rao, ) (Entered: 09/26/2013)
236 AGREED ORDER As to Class Member, Codie Jones Entered by the Honorable Ruben Castillo on 10/1/2013.(gcy, ) (Entered: 10/02/2013)
237 AGREED ORDER As to Class Member, Giovanni Mejia Entered by the Honorable Ruben Castillo on 10/1/2013.(gcy, ) (Entered: 10/02/2013)
238 AGREED ORDER As to Class Member, Patrick Stein Entered by the Honorable Ruben Castillo on 10/1/2013.(gcy, ) (Entered: 10/02/2013)
239 ORDER: Fairness hearing held on 10/3/2013. The Court finds the settlement is fair and reasonable and gives final approval of the class consent decree. Enter Consent Decree. Signed by the Honorable Ruben Castillo. (gcy, ) (Entered: 10/04/2013)
240 CONSENT DECREE Entered by the Honorable Ruben Castillo on 10/3/2013.(gcy, ) (Entered: 10/04/2013)
241 MOTION by Plaintiff Charles Stout for rule to show cause and other relief against the Defendant (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Farley, Robert) (Entered: 08/12/2015)
242 Plaintiff Charles Stout NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion for rule to show cause 241 before Honorable Ruben Castillo on 8/26/2015 at 09:45 AM. (Farley, Robert) (Entered: 08/12/2015)
243 ORDER: Motion hearing held on 8/26/15. Plaintiff's motion for rule to show cause and other relief 241 is granted in part and denied in part. Attorney fees are awarded to the plaintiff in the amount of $2,600.Signed by the Honorable Ruben Castillo on 8/26/2015. MAILED notice(ks, ) (Entered: 08/28/2015)
244 TRANSCRIPT OF PROCEEDINGS held on 8/26/15 before the Honorable Ruben Castillo. Court Reporter Contact Information: Kathy Fennell,

Case: 1:10-cv-3121 As of: 10/27/2017 06:53 PM CDT 20 of 20
Kathleen_Fennell@ilnd.uscourts.gov.
IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.
Redaction Request due 10/16/2015. Redacted Transcript Deadline set for 10/26/2015. Release of Transcript Restriction set for 12/24/2015. (Fennell, Kathleen) (Entered: 09/25/2015)