Case 1:06-cv-02211 Document 44 Filed 03/27/2007 Page 1 of 6

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

DAVID GROOMS,

)

)

Plaintiff,

)

)

No. 06 C 2211

v.

)

Judge Rebecca R. Pallmeyer

)

Magistrate Judge Martin C. Ashman

BARRY S. MARAM, Director,

)

Illinois Department of Healthcare and

)

Family Services,

)

)

Defendant.

)

DEFENDANT'S OBJECTIONS TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

NOW COMES Defendant, BARRY S. MARAM, Director of the Illinois

Department of Healthcare and Family Services, in his official capacity only, by his

attorney, LISA MADIGAN, Attorney General of Illinois, and hereby objects to Plaintiff's

Motion for Preliminary Injunction, stating as follows:

1. On March 13, 2007, Plaintiff filed his Motion for Preliminary Injunction.

(Grooms v. Maram, 06 C 2211, Civil Docket No. 42). This Motion was filed eleven

months after Plaintiff filed his Complaint in this action on or about April 20, 2006. The

Complaint, in turn, was filed some six months after Plaintiff began receiving benefits

under the Persons with Disabilities Waiver of the Home Service Program.

2. Plaintiff's Motion for Preliminary Injunction should be denied because: 1) the

Motion for Preliminary Injunction is not supported by any evidentiary material, and 2)

Plaintiff is not entitled to a preliminary injunction because he has delayed seeking

preliminary relief. In the alternative, any hearing on preliminary injunction should be

consolidated with the trial on the merits under F.R.Civ.P. 65(a)(2).

Case 1:06-cv-02211 Document 44 Filed 03/27/2007 Page 2 of 6
THE MOTION FOR PRELIMINARY INJUNCTION IS NOT SUPPORTED BY EVIDENTIARY MATERIALS 3. A preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865 (1977). Accordingly, the motion for preliminary injunction must be accompanied by affidavits or a verified complaint. See, Bascom Food Prods. v. Reese Finer Foods, Inc., 715 F.Supp. 616, 624 n. 14 (D.N.J. 1989). 4. Plaintiff's Motion for Preliminary Injunction is not supported by any evidentiary materials, such as affidavits. Moreover, the Complaint filed in this action on or about April 20, 2006 was not verified. 5. Consequently, Plaintiff's Motion for Preliminary Injunction is fatally flawed and must be denied since it lacks any evidentiary basis to make a clear showing of entitlement to an "extraordinary and drastic remedy." Mazurek, 520 U.S. at 972. PLAINTIFF HAS DELAYED SEEKING PRELIMINARY RELIEF UNTIL NEAR THE CLOSE OF DISCOVERY 6. Plaintiff filed his Complaint in this action on or about April 20, 2006. However, Plaintiff has been continuously eligible for and enrolled in the Persons with Disabilities Waiver since he turned 21 years old on October 8, 2005, and signed-off on a Service Plan as recently as January 24, 2007. In order to be eligible and receive benefits and services under the Persons with Disabilities Waiver, an individual's physician must certify that the care plan developed can safely provide care to the individual in the home. Plaintiff participated in the Persons with Disabilities Waiver for approximately six months before he filed his Complaint. Plaintiff did not seek preliminary relief contemporaneously with the filing of his Complaint.
2

Case 1:06-cv-02211 Document 44 Filed 03/27/2007 Page 3 of 6
7. On June 15, 2006, this Court entered a scheduling order setting forth the sequence of discovery, expert disclosure dates, the close of all discovery on April 27, 2007, and setting this matter for trial on July 16, 2007. (Grooms v. Maram, 06 C 2211, Civil Docket No. 13).
8. The parties have engaged in discovery. Plaintiff has not disclosed any retained expert witnesses. Defendant disclosed his retained expert, the expert's report, and has made available to Plaintiff documents utilized by the retained expert, in conformance with this Court's order entered March 5, 2007. (Grooms v. Maram, 06 C 2211, Civil Docket No. 41).
9. A preliminary injunction is sought upon the theory that there is an urgent need for speedy action to protect the plaintiff's rights. By sleeping on his rights, a plaintiff demonstrates the lack of need for speedy action. Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984). While a plaintiff's delay in seeking an injunction is not alone a basis to withhold relief, it is a fact to be considered in measuring the claim of urgency. Id. at 1214; Flint v. Dennison, 336 F.Supp 2d 1065, 1070 (D. Mont. 2004).
10. Plaintiff's delay in seeking preliminary relief, taken in conjunction with the fact that he has, since October 8, 2005, been certified by his physician to participate in the Persons with Disabilities Waiver belies any claim that he has an urgent need for speedy action to protect his rights.
SHOULD THE COURT WISH TO DETERMINE WHETHER PRELIMINARY RELIEF MAY BE APPROPRIATE, THE COURT SHOULD CONSOLIDATE THE HEARING FOR THE PRELIMINARY
INJUNCTION WITH THE TRIAL ON THE MERITS 11. Pursuant to F.R.Civ.P. 65(a)(2), before or after the commencement of hearing of an application for a preliminary injunction, the court may order the trial of the action
3

Case 1:06-cv-02211 Document 44 Filed 03/27/2007 Page 4 of 6
on the merits to be advanced and consolidated with the hearing of the application. See also Proimos v. Fair Auto Repair, Inc., 808 F.2d 1273, 1277-78 (7th Cir. 1987).
12. As detailed in Paragraphs 7 and 8 above, discovery is set to close shortly and the July 16, 2007 trial date can be advanced. Defendant is prepared to go to trial in this matter. Given the stage of the proceedings, it would certainly be judicially economical to advance the trial date and consolidate the preliminary injunction hearing with trial on the merits. Defendant would propose a trial date, based on the Court's availability, sometime after May 7, 2007. This date would allow the parties to compile their final pre-trial order materials to be prepared and submitted to the court after the close of discovery on April 27, 2007.
WHEREFORE, for the reasons stated above, Defendant respectfully requests that the court:
1) Deny Plaintiff's Motion for Preliminary Injunction; or 2) Advance the trial of the action on the merits and consolidate the trial with the hearing of the preliminary injunction on or after May 7, 2007; or 3) Allow Defendant such time to present evidence and a memorandum of law to respond to any such submission the Court may allow Plaintiff to file in support of his Motion for Preliminary Injunction.
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Case 1:06-cv-02211 Document 44 Filed 03/27/2007 Page 5 of 6

DATED: March 27, 2007

Respectfully submitted,
LISA MADIGAN Attorney General of Illinois
By: John E. Huston__________ KAREN KONIECZNY #1506277 JOHN E. HUSTON #3128039 CHRISTOPHER S. GANGE #6255970 Assistant Attorneys General 160 N. LaSalle St. Suite N-1000 Chicago, IL 606012 (312) 793-2380

5

Case 1:06-cv-02211 Document 44 Filed 03/27/2007 Page 6 of 6 CERTIFICATE OF SERVICE
JOHN E. HUSTON, one of the attorneys of record for the Defendant, hereby certifies that he caused a copy of the foregoing DEFENDANT'S OBJECTIONS TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION to be served by the Court’s ECF/electronic mailing system upon the following: Karen I. Ward Byron L. Mason Equip for Equality 20 N. Michigan Ave., Ste. 300 Chicago, IL 60602
/s/John E. Huston____
6

 
 Case 1:06-cv-02211 Document 1 Filed 04/20/2006 Page 1 of 9
..

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT 01<' ILLINOIS
_ASTERN DIVISION

Plainti\~ f DAVID GROOMS,

\,.

~
06CV2211 1 JUDGE PALLMEYER

v. BARRY S. MARAM,

~) 0 r;;:.. .....::;
'"l:(,.,;!

)..r'\ I ) ".

MAG. JUDGE ASHMAN

,.

Director, Tllinois Department of ~

)

Hcalthcare and Family Services

)

Defendant.

)

COMPLAINT

I.

PRELIMINARY STATEMENT

1. Plainti ff David Grooms (David) reached the age of 21 years old on October 8,

2005. David has Type II Glycogen Storage Disease (GSD Type II). David's condition was

diagnosed when he was abont 12 years old. GSD Type IT is a muscle disease that progressively

affects skeletal muscle and muscles involved in respiration. David's condition has resulted in

quadriplegia. David is eligible for assistance under the Medicaid Program.

2. Although David's cognitive ability is unimpaired, all of his body functions have

been compromised and his medical needs are very complex. David relies on others for virtually

all care and mobility. He does have some use of his hands, and is therefore able to drink from a

straw without assistance, to feed himself certain foods, and to use a computer. Aside from these

limited activities, David has no control of his limbs.

3. During 2005, the l11inois Department of Healthcare and Family Services (HFS)

approved and paid for monthly benefits that allowed David to obtain services in his own home

and avoid institutionalil,ation, Payment for the care was through a Medicaid waiver program for

children who have exceptional medical needs who would be institutionalized at state expense if

Case 1:06-cv-02211 Document 1 Filed 04/20/2006 Page 2 of 9
not given care at homc. HFS approved the extensive nursing services plan for David based on its determination that the services were mcdically necessary and that the cost ofthc care David needed to remain at home was less than the cost of the carc in a hospital or other institutional setting.
4. At the end of2005, HFS significantly cut funding for David's in-home nursing services. The reduction was based solely On the fact that David reached the age of21 ycars on Octobcr 8, 2005; it was not due to a changc in his medical needs or in the cost to HFS for the carc he would require in an institutional setting. Due to the reduction in funding by HFS, David faces an impossible choicc in the coming months: remaining at home with severely reduccd services or moving to an institution. The laUer choice would require that he be removed from family and community in order to receive the care that he needs. The fonner places him in danger of a lethal medical crisis.
5. David seeks declaratory relief that the actions of HFS and its director constitute illegal discrimination under Title II ofthe Americans with Disabilities Act (ADA), 42 U.S.C § 12132, and Section 504 of the Rehabilitation Act, 29 u.S.C § 794(a}. David also seeks injunctive relief to require HFS and its director to provide nursing and othcr home services to him at the level that he received prior to turning 21.
n. JURISDICTION
6. Jurisdiction is conferred on this Court by 28 U.S.C § 1331. Declaratory relief is authorized under 28 U.S.c. § 22(H.
7. David's discrimination claims are brought pursuant to 42 U.S.C. § 12133 and 29 U.S.C § 794.
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Case 1:06-cv-02211 Document 1 Filed 04/20/2006 Page 3 of 9
Ill. PARTIES 8. David resides in LaSalle County, Illinois. 9. Defendant Barry S. Maram is the Director of the Illinois Department of
Healthcare and Family Services (HFS). IV. FACTS
10. David is 21 years old. His date ofbirth is October 8, 1984. II. David is an individual with a disability and is eligible for Medicaid. 12. The Medicaid program is ajoint federal and state funded program enacted to provide necessary medical assistance to needy aged or disabled persons and families with dependant children. whose income and resources are insufficient to meet the cost of care. 42 U.s.C. § 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.§ 1396a. 13. 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. § 1396. 14. Each State that participates in the Medicaid program must also designate a single state agency to administer and/or supervise the administration of that state's Medicaid Plan. 42 U.S.C. § 1396a(a)(5). IS. In Illinois, HFS is the single state agency responsible for administering the Medicaid program. 16. States have the option under Medicaid of providing home and community based services to persons who would otherwise require institutional care. 42 U.S.C. Sec 1396n(c)(1). Home and community based services are provided through HHS-approved "waiver" programs.
Under HHS' waiver authority, the Secretary of HHS may grant waivers 0 rspecified
3

Case 1:06-cv-02211 Document 1 Filed 04/20/2006 Page 4 of 9
requirements, such as service limitations, that are otherwise applicable to the state's Medicaid Plan. 42 U.S.c. § 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 setting must not exceed the estimated average cost ofprovidillg care in the institutional setting they would reqlLire. 42 U.S.c. § 1396n(c)(2)(D), 42 C.F.R. § 441. 302(E).
17. The Secretary oflIHS has approved waivers in Illinois for Medically Fragile and Technology Dependent Children (Medically Fragile Children's Waiver) and for lIome Services for Adults with Disabilities (Adult Home Services Waiver).
18. Under the Medically Fragile Children's Waiver, HI'S pays for home based care for children under age 21 who have exceptional medical needs. HFS administers this waiver program with participation orthe University oflllinois Division of Specialized Services for Children (DSSC) under an agreement with lIFS.
19. Under the Adult Home Services Waiver, lIFS provides funds to enable disabled adults to remain in their homes or in a community setting. HFS administers the IISP program with the participation ofthe Department or Rehabilitative Services (DRS) of the lIlinois Department of Human Services under an agreement with HFS.
20. David's condition, known as GSD Type IT, was diagnosed in or about 1996 when he was about 12 years old.
21. David's physical condition has progressively worsened since the condition was diagnosed. David currently has quadriplegia and is 100% ventilator dependent.
22. David has complex medical needs and requires constant monitoring. His medical condition must be assessed constantly. David requires the service of a registered nurse or a
4

Case 1:06-cv-02211 Document 1 Filed 04/20/2006 Page 5 of 9
licensed practical nurse to care for certain of his medical needs, such as those associated with his ventilator.
23. David's mother, Kathy Grooms, has diabetes. She was hospitalized on several occasions during 2005 and 2006 due to complications from diabetes, with the most recent hospitalization occurring in or about March of 2006.
24. David's father, David Grooms, Sr., works full time to support his family. 25. HFS approved David's care plan as a medically necessary and cost effective alternative to the care in the institutional setting it determined David would otherwise require. 26. HFS paid for David's skilled nursing care under the Medically Fragile Children's Waiver. 27. During 2005, HFS approved and paid for approximately $16,000.00 for monthly medical services provided by a registered nurse and a licensed practical nurse. The monthly benefits allowed David to meet the costs of salaries and benefits for the medical care that his condition requires. In addition to nursing services, the benefits allowed David to receive approximately $1,000.00 per month for respite care. His mother and father provided the halance of David's care. In the year before David reached the age of 21 years, the cost ofthe services he received amounted to approximately $221,760.00. 28. As David's 21 st birthday approached, DSSC staff began informing David and his parents that David would "age out" ofthe Medically Fragile Children's Waiver and that he would thereafter he required to transition into the Adult Home Services Waiver. 29. In May of2005, David and his family participated in a conference concerning David's care. Representatives of DRS and DSSC also attended. At the meeting, DRS infornled David that funding for pediatric patients is decreased once a child reaches the age of 21 hecause
5

Case 1:06-cv-02211 Document 1 Filed 04/20/2006 Page 6 of 9
there are only II pediatric nursing facilities in the state, as compared with over 700 adult facilities.
30. Tn late 2005, HFS approved a new care plan that reduccd David's monthly funding to approximately $8,620.00. This amount translates into approximately $103,440.00 per year, less than halfoftbe previous funding level. The amount is not sufficicnt to meet the costs oftbe nursing scrvices tbat David requires, nor is the amount sufficient to allow for respite care.
31. David's parents arc not able to increase the level of care that they provided prior to David turning 21, due to their own health concerns and work demands.
32. The reduction in services hy HFS is hased solely on the fact that David reached thc age of2l years on October 8, 2005. The reduction in funding is not due to a change in David's medical needs. David wants to remain in his home and not he isolated in an institution. He has greatly benefited from the love and support of his mother and father, as well as of his extended family, all of whom arc actively involvcd in David's life.
33. David's physicians have determined that David can be cared for at home safely and appropriately.
34. Under the laws governing the Adult Home Services Waiver, HFS has discretion to set funding for services for ventilator dependent pcrsons and otllers whose needs cannot be met by otherwise applicable caps, provided that the waiver program is cost-neutral.
35. With no modifleation in its regulations, and little modification in its practices, HFS could continue to fund the level of nursing care that David requires in order to remain at home at a cost less than would be required to serve him in a hospital or other specialized institution for the care he needs.
6

Case 1:06-cv-02211 Document 1 Filed 04/20/2006 Page 7 of 9
36. The current reduction in funding for nUTsing care will ultimately force David into an institutional setting, isolating him from home and community.
37. Title n oftlle Americans with Disahilities Act, 42 U.S.c. § 12132, prohihits
public entities from discriminating against persons with disabilities in the delivery of services. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), prohibits rccipients of federal funds from discriminating against qualified pcrsons wiili disabilities. Policies and practices iliat have the effects of unjustifiably segregating persons with disabilities in institutions constitute prohibited discrimination under both Acts.
38. Under 28 C.F.R. § 35.l30(d), implementing Title II ofilie ADA, public cntities must administer serviccs in ilie most integrated setting appropriate to the needs of quali fied individuals with disabilities. This same requirement applies to recipients of federal funds under the regulations implementing thc Rehabilitation Act. 28 C.F.R. § 41 Sled).
39. HFS is a public entity within the meaning of Title II ofthe ADA and is a reeipieut offederal funds under thc Rehabilitation Act.
40. David is a qualified individual with a disability within the meaning ofTiOe IT of the ADA and undcr Section 504 of the Rehabilitation Act,
41. The actions by taken by HFS with respect to David's serviccs constitute unlawful discrimination under 42 U.S.C. § J2321 and 29 U.S.c. § 794(a) and violate the integration mandate ofthe regulations implementing these statutory prohibitions. 28 C.F.R. § 130.S1(d) and 41.51 (d).
42. Defendant's actions have caused and will continue to causc David irreparable injury fOT which thcre is no adequate remedy oflaw.
7

Case 1:06-cv-02211 Document 1 Filed 04/20/2006 Page 8 of 9
V. CLAIMS 43. David's sole income is the funding that he receives through HFS. 44. Defendant's reduction offunding for the home nursing and other services David
needs in order to avoid institutionalization violates 42 U.S.c. § 12321 and 29 U.S.c. § 794(a) and their implementing regulations, 28 C.F.R. § 130.51(d), 41.51(d). VI. PRAYER FOR RELIEF
45. Plaintiff prays for the following relief: A. That this Court enter a declaratory judgment that Defendant's reduction in
funding violates lJ.S.c. § 12132 and 29 U.S.c. § 794(a), and their implementing regulations, 28 C.F.R. § 130.51(d), and 41.51(d).
B. That this Court restore David's pre-age 21 levcls of funding for home nursing services.
C. That this Court preliminarily and permanently enjoin Defendant's reduction in services for David's home nursing services.
D. That the COllrt award plaintiff costs and fees. E. That the Court grant such additional relief that it deems equitable and just.
Respectfully Submitted, BYRON L. MASON
'2- J ,-~~~~~~ One of Byron L. Mason Steven Giebe1hausen Laura J. Miller BatT)' Taylor EQUIP FOR EQUALITY, INC. 20 North Michigan Avenue, Suite 300
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Case 1:06-cv-02211 Document 1 Filed 04/20/2006 Page 9 of 9

Chicago, Illino; s 60602 Tel: (312) 341-0022 Fax: (312) 341-0295

9

 
 Case 1:06-cv-02211 Document 62-4 Filed 05/29/2007 Page 1 of 39
Grooms
v.
Maram
Expert Witness Report .
f/'~ Signed: Ji1~
Todd D. Menenberg Navigant Consulting, Inc.
March 19, 2007

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Case 1:06-cv-02211 Document 62-4 Filed 05/29/2007 Page 2 of 39
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TABLE OF CONTENTS

Introduction
I. II. Background on the Illinois Medicaid Program
III. Nature of the Dispute IV.
Scope of Work V. Process and Results

Exhibit 1: Additional Cost if Individuals Move from Nursing Facilities to the Community
Exhibit 2: Additional Cost if Utilization Review Function Removed - Persons with Disabilities Waiver
Attachment 1: Resume of Todd D. Menenberg Attachment 2: Testimony of Todd D. Menenberg Attachment 3: Documents Considered by Todd D. Menenberg

I.
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Case 1:06-cv-02211 Document 62-4 Filed 05/29/2007 Page 3 of 39
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March 19,2007
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I. Introduction

This report was prepared by Todd D. Menenberg of Navigant Consulting, Ine. ("Navigant"). Navigant is an international consulting firm providing litigation, financial and other services to clients. I am a Managing Director of Navigant. I am a certified public accountant. I have provided consulting services on a wide variety of health care-related financial and economic matters, including Medicaid disputes involving lost profits, damages, and economic projections. My experience is smmnarized in my resume, included as Attachment 1.

A listing of cases in which I have testifi ed as an expe rt witness during the past four years is included as Attachment 2 to this report. My hourly billing rate in this matter is $180. I have no publications during the last ten y ears. Navigant's work on this matter was p erformed by me or under my supervision.
. Navigant has been retained by legal counsel for the illinois Department of Healthcare and Family Services (HFS) to provide expert testimony related to the cost and financial issues relevant to this matter.

I have considered certain documents in forming the opinions contained in this report. A list of these documents is attached to my report in Attachment 3. My opinions have been formed based on the information now available to me. As additional information becomes
available (such as newly produced data and documents, expert reports, and testimony) or additional analyses are performed, I may evaluate and consider that information. As a result, I reserve the right to modify or supplement my opinions.

Page 1

Case 1:06-cv-02211 Document 62-4 Filed 05/29/2007 Page 4 of 39
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II. Background on the Illinois Medicaid Program
The Illinois Department of Healthcar e and Family Services (HFS) is responsible fo r providing health care coverage for adults and children who qualify for Medicaid, and for providing Child Support Enforcement services to help ensure that Illinois children receive financial support from both parents. The Division of Medical Programs within HFS administers the Medical Assistance Programs, which provide health care cov erage to low-income fami lies lacking health insurance, children who are wards of the state, low-income senior citizens, individuals with disabilities, elderly in nursing facilities and p eople struggling with catastrophic medical bills.
Illinois has a Medicaid State Plan, approved by the Centers for Medicare an d Medicaid Services (CMS) that specifies the healthcare services available to all Medicaid eligible individuals. In addition to services in the State Plan, illinois opera tes several Medicaid homeand community-based (HCBS) "waiver" programs. Medicaid HCBS waiver programs allow qualified individuals to receive care in their own home or other community setting as an alternative to a nursing facility or other institutional setting. Individuals in a waiver program have access to specified services that are not generally included in Medicaid State Plans, including services such as homemaker, personal assistant, and home delivered meals, among others. In addition to these services, waiver recipients are able to access Medicaid State Plan services, such as physician visits, hospital stays, etc. For state waiver programs to be eligible for Federal matching funds, Federal regulations require that waiver programs be cost neutral, th at is, services provided to waiver recipients must cost no more than services that would be provided to the same individuals were they to be served in institutional settings.
Physically disabled persons in the Ill inois Medicaid pro gram who require a nursing facility level of care generally receive services in one of two ways: 1) care is provided in a nursing facility or similar type of institutional setting; or, 2) care is provided at home or in a
Page 2

Case 1:06-cv-02211 Document 62-4 Filed 05/29/2007 Page 5 of 39
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community-based setting t hrough an HCBS waiver program. Disabled children may receive services i n either an institutional or an HCBS setting and are eligible to receive additional services through the Early Periodic Screening, Diagnosis, and Treatment (EPSDT) program. Under the EPSDT program, children can receive services that are not included in the Illinois Medicaid State Plan, but that are deemed medically necessary for the child's treatment.
Illinois' Medicaid HCBS Waiver Programs
Illinois' Medicaid HCBS waiver programs are administered by HFS as the Medicaid agency, but several of the waiver programs are operated by the Division of Rehabilitation Services (DRS), a division of the Illinois Department of Human Services (DHS).
Illinois has seven HCBS waiver programs:

Waiver
1) Medically Fragile/ Technology Dependent Children (MFTD)
2) Persons with Disabilities 3) Persons with Brain InjurJ 4) Adults with Developmental
Disabilities

Level of Institutional Care Required by Waiver Recipients Hospital / Skilled
Pediatric Facility

Operating State Agency
University of Illinois, Division of Specialized Care for Children (DSCC) DH5-DRS DHS-DRS DH5-Division of Developmental Disabilities Services

5) Persons Who are Elderly 6) Persons with HIV or AIDS 7) Supported Living Facilities

Department of A . DH5-DRS HFSBureau of Long Term Care

Page 3

Case 1:06-cv-02211 Document 62-4 Filed 05/29/2007 Page 6 of 39
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Following is a more detailed description of the MF TD Waiver and the Perso ns with Disabilities Waiver. MFTD Waiver
The MFTD Waiver is for individuals under age 21. To qualify for this waiver, individuals must need a level of care equivalent to that provided in a skilled pediatric facility (licensed as an ICF/MR) or a hospital. Participants in the waiver program have a dollar lim it on the amOtmt of services they can receive. This limit, which applies to each waiver recipient, is equal to 125% of the ave rage per diem expenditu re for hospital care in the previous fiscal year.! Approximately 530 children participated in the MFTD Waiver during the time period September I, 2003 thr ough August 31, 2004. Durin g that same period, it cost approxim ately $2 million to provide waiver services and the EPSDT program spent an additional $49 million to provide nursing services to children in the MFTD Waiver.
Persons with Disabilities Waiver
The Persons with Disabilities Waiver is for Medicaid-eligible individuals under age 60. To qualify for this program, individuals must need a level of care equivalent to that provided in a nursing facility. Participants in the waiver program also have a dollar limit, which is generally referred to as a Service Cost Maximum (SCM). The SCM limits the cost of the service plan a waiver recipient can receive. The SCM is determined for each waiver applicant by way o f an assessment tool, referred to as the Determination of Need (DON). Higher DON scores generally correspond with higher SCMs. A service plan, which sets out the allowed waiver services, is developed by DRS for each waiver recipient. The service plans are tailored to the specific medical conditions and needs of the recipients. These service plans are designed to
1 The limit for ventilator dependent children is equal to the greater of: 1) 125% of the average per diem expenditure for hospital care in the previous fiscal year, or 2) 100% of the average per diem cost of the institution from which they were placed.
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Case 1:06-cv-02211 Document 62-4 Filed 05/29/2007 Page 7 of 39
,
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economically provide the necessary services within the recipient' s SCM. Approximately 20,000 adults participated in the Persons with Disabilities Waiver during the time period October 1, 2003 through September 30, 2004. During that same period, it cost approximately $175 million to provide waiver services to persons in the Persons with Disabilities Waiver. Illinois Nursing Facilities
There are ov er 700 nursing facilities p articipating in the illinois Medicaid program . HFS reimburses nursing facilities on a per diem basis for days of care provided to Medicaid recipients. The per diem rates vary by facility and averaged approximately $95 per day as of Fall 2006, however, Illinois recently revised its rate setting methodology for nursing facilities, which resulted in new per diem rates effective January 1, 2007.2 The average of these new rat es increased to approximately $100 per day. III. Nature of the Dispute
The Plaintiff in this matter is David Grooms. I understand that David has quadriplegia and is ventilator dependent. David received services through illinois' MFTD Waiver program until he reached age 21 in October 2005. I unde rstand that through the MFTD Waiver, David received nursing services at home from RNs and LPNs that cost approximately $16,000 per month as w ell as respite care costing approxim ately $1,000 per month. Nursing services in the MFTD Waiver are generally funded by EPSDT, which was described in Section II above.
Once David reached age 21, he was no longer eligible for the MFTD Waiver. In late 2005, DRS developed a service plan for David under the Persons with Disabilities Waiver. The Persons with Disabilities Waiver has different (lower) SCMlevels (as a result of different cost
2 Prior to the rate setting change, nursing facilities could receive" exceptional care rates" for services provided to certain individuals with special needs, The $95 per day average rate does not include consideration of individuals receiving exceptional care rates. With the change in the rate setting system, exceptional care rates were eliminated.
Page 5

Case 1:06-cv-02211 Document 62-4 Filed 05/29/2007 Page 8 of 39
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neutrality measures) than the MFTD Waiver.3 The service plan developed for David under the Persons with Disabilities Waiver contained fewer nursing hours than he had received under the MFTD Waiver.4 I understand that David has been receiving nursing services at the level approved by the service plan developed under the Persons with Disabilities Waiver; however, David now seeks to recei ve his "pre-age 21 levels of ftmding for hom e nursing services."s These additional requested nursing services would result in the cost of David's services exceeding his cost limitation in the Persons with Disabilities Waiver.6
IV. Scope of Work
I was asked by counsel to HFS to quantify the economic impact on the cost of the State's
current Persons with Disabilities Waiver program, assuming David were to prevail on his request for additional home nursing services and other individuals were then also able to access additional waiverservices. The two populations I was asked to evaluate are:
1) Current nursing facility residents who potentially would move from nursing facilities to community-based settings and receive services through the Persons with Disabilities Waiver program; and,
2) Current Persons with Disabilities Waiver recipients who currently use services at a cost that is less than their SCM.
3 The cost neutrality comparison for the MFTD Waiver is based on the cost of hospital or skilled pediatric facility services, whereas the comparison for the Persons with Disabilities Waiver is based on the cost of nursing facility services. 4 The service plan contained, on average, approximately 12 hours per day of RN / LPN services and approximately 1 hour per day of personal assistance. TI1e total cost of the plan was $8,660, which is under the SCM (based on an exceptional care rate) of $8,840 per month. Exceptional care rates are extended to waiver recipients on a case-by-case basis when the recipient would have qualified for an exceptional care rate in a nursing facility.
5 Defendant's Amended Answer and Affirmative Defenses to Complaint, paragraph 45.B. 6 The costs for David's pre-21 services were approximately $17,000 per month, which is approximately twice the cost of his service plan ($8,660) under the Persons with Disabilities Waiver.
Page 6

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Case 1:06-cv-02211 Document 62-4 Filed 05/29/2007 Page 9 of 39
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If David prevails on his request for additional hom e nursing services, the co st of David' s care would exceed his cost limitation under the Persons with Disabilities Waiver and would exceed the cost of his approved service plan for the waiver. Therefore, if David were to prevail, it is reasonable to believe that some current nursing facility residents that have been unable to access HCBS services through the Persons with Disabilities Waiver (because the cost of their home-based service needs exceeded their SCM) would then be able to receive services through the Persons with Disabilities Waiver. Similarly, if David prevails, it is reaso nable to believe that current Persons with Disabilities Waiver recipients would likely access additional HCBS services up to (and potentially in excess of) their SCMs.7
The process I used to eval uate the two populations above and the results of my analyses are explained in more detail in the following section. V. Process and Results

My colleagues and I had a series of discussions in early 2007 with a nu mber of State
personnel, including attorneys and executives with HFS and DHS. Our work included discussions with the following individuals:
. Matt Werner - HFS, Bureau of Rate Development and Analysis . Barbara Ginder - HFS, Bureau of Interagency Coordination Kelly
. Cuningham - HFS, Bureau of Long Term Care . Nancy Becker - HFS, Bureau of Rate Development and Analysis
. Sue Coomod - HFS, Bureau of Long Term Care
. Teri Dederer - DHS, Division of Rehabilitation Services . John Huston - Office of the Attorney General . Karen Konieczny - Office of the Attorney General . Joseph Howard - HFS, Office of General Counsel

7 My analyses of nursing facility residents and individuals currently served under the Persons with Disabilities Waiver
are not lin1ited to individuals with quadriplegia or that are ventilator dependent. If David were to prevail in this matter,
individuals with various medical conditions (not only those with quadriplegia or that are ventilator dependent) would likely access additional services.
Page 7

Case 1:06-cv-02211 Document 62-4 Filed 05/29/2007 Page 10 of 39
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As part of our discussions, we request ed and received infonnation relevant to this
... matter including: Medicaid HCBS waiver documents CMS 372 reports detailing HCBS waiver expenditures Statistical data on services and costs for individuals in the HCBS waiver programs . Medicaid fee schedule for HCBS waiver services . Statewide nursing facility utilization statistics . Statewide nursing facility Medicaid per diem rate schedules . Summary MDS data for selected nursing facility residents . David's plan of care developed for the Persons with Disabilities Waiver . Summary of the costs of David's services since October 2005 . General description of the process used to develop service plans for HCBS . waiver recipients Selected depositions, pleadings, and court rulings in this and related matters After our discussions with State personnel a nd our review of the infon nation listed above, we were asked to specifically quantify the following:
1) the cost for additional individuals that would move from nursing facilities into the community, who would access Medicaid services through the Persons with Disabilities Waiver; and,
2) the additional cost for current Persons with Disabilities Waiver recipients that would access additional HCBS services up to (and potentially in excess of) their SCMs.
Due to the nature of this dispute, the elements needed to analyze the se costs include financial, economic, and cost data, both historical and projected. The framework basically compares financial estimates of: (a) the cost of care for Medicaid recipients under the current programs, with (b) the estimated costs assuming changes to the programs. I have been asked to take various assumptions and data and design an appropriate cost model based on my experience and general practices of computing costs, which would determine a reasonable
Page 8

Case 1:06-cv-02211 Document 62-4 Filed 05/29/2007 Page 11 of 39
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estimate of c osts at is sue in this matter . The rest of this report describes the pr ocess I have undertaken and the results of my analyses. Cost to Move Nursing Facility Residents into the Community
The objective of this part of my analysis was to esti mate the additional cost related t o nursing facility residents that would move from the nursing facility into the community and access Medicaid services t hrough the Persons with Disabilities Waiver, if there were no SCM limitations.
This analysis relied on data from the September 30,2006 MDS databaseB used for nursing facility rate setting. We worked with HFS personnel to identify Medicaid-eligible individuals under age 60 in nursing facilities. There were approximately 9,000 individuals meeting these criteria. We then identified individuals that were not scheduled to be discharged from the nursing facility in the next 90 days. 9 From this group of individuals, we then identified how many individuals had expressed a desire to leave the nursing facility!O and had a support person "positive towards" their discharge from the nursing facility .!! 216 individuals met all these criteria. Therefore, these individuals would potentially move from the nursing facility to the co mmunity and be serv ed under the Persons with Disabilities Waiver were the SCM limitations removed.
6 HFS has access to data from assessments of nursing facility residents. This data is commonly referred to as Minimum Data Set (MDS) information. Resident assessments are completed periodically over the course of a year. The database used for our analysis included MDS information for residents in nursing facilities on September 30, 2006. The MDS information was based on the most recently completed assessment as of September 30, 2006. For certain residents who had recently been admitted to a nursing facility (or for those in a hospital or otherwise temporarily out of the nursing facility), there was a two week" grace period" to complete MDS assessments. 9 The MDS assessment instrument includes question Qlc, which indicates whether or not the resident is expected to be discharged within 90 days. 10 The MDS assessment instrument includes question Qla, which asks whether the resident desires to return to the community. 11 The MDS assessment instrument includes question Qlb, which indicates whether or not there is a person who is "positive towards" the resident's discharge from the nursing facility.
Page 9

Case 1:06-cv-02211 Document 62-4 Filed 05/29/2007 Page 12 of 39
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As part of this process, we observed that a number of the Medicaid nursing facility
residents under age 60 did not respond to all three questions discussed above. Assuming theaste non-responding individuals would have answer ed the thre e questions i n a sim ilar manner as those who did respond to all three questions, there would be a total of approximately 1,100
Medicaid residents (including the 216 individuals above) under age 60 that wer e not scheduled to be discharged within the next 90 days, desired to return to the community, and hac:l a person positive towards their discharge. Therefore, for purposes of my analysis, I have determined that approximately 1,100 current nursing facility residents would potentially move from nursing facilities into the community and be served under the Persons with Disabilities Waiver were'the SCM limitations removed.
We sorted th e MDS data for the 216 individuals described above by their activities o f daily living (ADL) scores.12 The ADL scores ranged from 7 to 28. The largest group of individuals had an ADL score of 7. Fr om the 216 MDS assessments, 28 were judgm entally selected for detailed clinical review. The sample was selected with the goal of obtaining residents whose ADL scores were distributed in a similar fashion to the ADL scores of the 216 identified residents.
The table on the following page details the number of MDS assessments by ADL score and the number selected for review.
12 The ADL score indicates the level of support needed to accomplish activities of daily living, such as eating, bathing, grooming, transfer, etc. Lower scores indicate less need for assistance and higher scores indicate greater need for assistance.
Page 10

Case 1:06-cv-02211 Document 62-4 Filed 05/29/2007 Page 13 of 39

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ADL Score 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Total

Number of MDS Assessments 67 8 8 5 8 8 0 6 3 6 7 2 6 6 8 13 9 10 11 13 9 3 216

Number Selected for Review
8 1 1 1 ] ] 0 ] ] ] ] ] 1 1 1 1 1 ] 1
1
1 ] 28

Sue Coonrod, an HFS nurse,13 perfonn ed a detailed clinical review based on the MDS data for the 28 selected MDS assessments. From this infonnation, she developed a medical
13 Roberta Sue Coonrod is a Registered Nurse currently employed by the HFS as the Supervisor of the Carlinville Region for the Bureau of Long Term Care. She has been with HFS (formerly the Illinois Department of Public Aid) since January 1985 and in her current position since May 1999. Sue has maintained her Determination of Need (DON) certification as well as her certification in gerontological nursing. Throughout her career with HFS, she has completed waiver reviews for the lllinois Department on Aging (IDoA) and the DRS including care plan and provider reviews. She has also participated in facility and individual exceptional care reviews and has been the lead
Page 11

Case 1:06-cv-02211 Document 62-4 Filed 05/29/2007 Page 14 of 39

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description of each re sident and create d a plan of services that would potentially be used by the resident if they were to move from the nursing fadlity to the community. From the plan of care and the Medicaid fee schedule, we were able to estimate the cost to care for each individual in the community.
Exhibit 1 shows the Medicaid rate paid for each of the 28 individuals to the nursing facility as of Fall 2006 and the current rate (effective January 1, 2007), the estimated cost to care for the individual in the community, and the difference between the nursing facility rates and the estimated cost to care for the individual in the community. The average difference between the nursing facility rate as of Fall 2006 and the es timated cost to care for the individual in the community is $79.94 per day. The difference using the January 2007 nursing facility rates is $83.01 per day.
Assuming thatthe 28 asse ssments are r epresentative of the 216 assessments, the additional cost for all 216 assessments would be approximately $17,000 per day or approximately $6.3 million annually ($79.94 per day x 216 individuals x 365 days) using the Fall 2006 nursing facility rates. A similar calculation based on the January 2007 rates results in an additional cost of approximately $6.5 million annually.
An extrapolation to account for the non-response issue discussed above, results in an additional annual cost for the approximately 1,100 individuals (including the 216 individuals above) of approximately $32 million using the Fall 2006 rates or approxim ately $33 million using the January 2007 rates.

supervisor for the DRS Brain Injur y waiver. She has assi sted facilities with th eir on-line MDS subm issions. She has participated in MDS training and directs staff regarding the new rate system based on the MDS.
Page 12

Case 1:06-cv-02211 Document 62-4 Filed 05/29/2007 Page 15 of 39

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Cost to Provide Additional Services to Current Waiver Recipients

The objective of this part of my analysis was to estimate the potential additional cost if the limitations imposed by the DRS utilization review and service plan development process were eliminated and the Persons with Disabiliti es Waiver recip ients were ab le to receive services up to their SCMs, and beyond.
We obtained data fro m the DRS program for fiscal year 2006 with the monthly costs of service for each individual, grouped by SCM. The monthly cost information was provided in $100 increments. We have been asked to determine the difference between the cost of the
Persons with Disabilities Waiver recipients' service plans and their respective SCMs. We were also asked to perform similar calculations assuming each SCM were increased by 10% and 20%. Finally, we were asked t o calculate the cost that would be incurred if e ach service plan were increased by 196%14, which represents the difference between the cos~ of services that David requested and the cost of the service plan developed for David for the Persons with Disabilities Waiver.

The results (see Exhibit 2 for calculations) of these analyses indicate:
. The difference between the cost of the Persons with Disabilities Waiver
recipients' service plans and their resp ective SCMs would be approxim ately $206
. million annually. The difference between the cost of the Persons with Disabilities Waiver recipients' service plans and their respective SCMs increased by 10% would be approximately $258 million annually.

14 The cost model is set up so that similar calculations can easily be done for varying percentages.

Page 13

Case 1:06-cv-02211 Document 62-4 Filed 05/29/2007 Page 16 of 39
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. The difference between the cost of the Persons with Disabilities Waiver
recipients' service plans a nd their respective SCMs increased by 20% would be
. approximately $310 million annually. The cost of increasing each Persons with Disabilities Waiver recipient's service plan by 196% would be approximately $302 million annually. Total Cost Impact
When the cost impacts related to nursing facility residents moving into the community are added to the cost impacts related to additional services that would be provided to current Persons with Disabilities Waiver recipients, the total annual costs range from approximately $238 million to $343 million annually. Other Considerations
In addition t o the costs described above, th ere are a num ber of potential additional costs
. should David prevail, which I have not attempted to quantify at this time. These include: Costs are only for the first year of the potential change; costs in future years . would continue to be substantial Children currently in the MFTD Waiver will reach age 21, m ove into the Persons . with Disabilities Waiver, and may access services at David's level of care The costs of developing and administering a significantly revised Persons with . Disabilities Waiver program The initial costs incurred when a new Persons with Disabilities Waiver recipient moves from a nursing facility into the waiver program, e.g., home modifications, durable medical equipment, developing service plan, etc. . The costs of increasing nursing facility rates
Page 14

Case 1:06-cv-02211 Document 62-4 Filed 05/29/2007 Page 17 of 39
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. nursing wages and State payments for nursing services The costs related to other Medicaid-eligible people moving to Ill inois to avail themselves of the Persons with Disabilities Waiver benefits
Page 15

Case 1:06-cv-02211 Document 62-4 Filed 05/29/2007 Page 18 of 39
EXHIBITS

Case 1:06-cv-02211 Document 62-4 Filed 05/29/2007 Page 19 of 39

Additional Cost if Individuals Move from Nursing Facilities to the Community

EXHIBIT 1

Assessment #
-
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
28
TOTALS AVERAGES

Nursing Facility Rates (Per Diems)

Rate as of Fall 2006
A $101.54 101.91
84.44 81.63 101.91 108.15 101.52 81.63 101.88 103.13 102.10 105.08 272.17 94.71 121.70 107.70 111.15 97.99 97.96 89.92 81.79 107.03 112.04 155.32 105.26
87.39 104.48
171.23
$3,092.76

Rate as of
January 2007
B $103.01 106.82
87.48 90.56 106.82 111.15 105.14 90.56 104.23 106.13 105.46 108.71 102.13 95.78 128.12 109.18 126.74 99.25 163.80 93.03 85.62 147.17 115.77 102.82 109.22 90.50 106.61
104.92
$3,006.73

HCBS Services Cost
Average Cost Per Day

HCBS Cost Compared to NF Rate as of
Fall 2006

Difference HCBS Cost Compared to NF Rate as of
January 2007

C =D C= -A E C-B

$14.72

($86.82)

($88.29)

91.92

(9.99)

(14.90)

183.10

98.66

95.62

193.76

112.13

103.20

190.12

88.21

83.30

183.50

75.35

72.35

213.48

111.96

108.34

210.13

128.50

119.57

23.79

(78.09)

(80.44)

46.54

(56.59)

(59.59)

161.80

59.70

56.34

180.45

75.37

71.74

279.07

6.90

176.94

256.43

161.72

160.65

223.27

101.57

95.15

239.31

131.61

130.13

236.15

125.00

109.41

267.35

169.36

168.10

248.60

150.64

84.80

217.92

128.00

124.89

224.71

142.92

139.09

235.18

128.15

88.01

259.44

147.40

143.67

194.24

38.92

91.42

226.90

121.64

117.68

173.90

86.51

83.40

105.44

0.96

(1.17)

249.79

78.56

144.87

$5,331.01

$2,238.25 $79.94

$2,324.28 $83.01

Note: The average HCBS cost per day amounts were calculated as monthly cost divided by 30.5 days (average of 30- and 31-day months in a year). If the average HCBS cost per day amounts were calculated by dividing the monthly costs by 31 days, the $79.94 and $83.01 average differences would decrease by less than 4%.

. .'

Additional Cost if Utilization Review Function Removed Persons with Disabilities Waiver

EXHIBIT 2

Current Service Plans

Calculation of Additional Cost if Utilization Review Function Removed

SCM
A 1,249 1,249 t249 1,249 1,249 1,249 1,249 1,249 1,249 1.249 1.249 1,249 1,249 1,435 1,435 1,435 1,435 1,435 1,435 1,435 1,435 1,435 1,435 1,435 1,435 1,435 1,435 1,435 1,597 1,597 1,597 1,597 1,597 1,597 1,597 1,597 1.597 1,597 1,597 1,597 1,597
1,597

Projected Monthlv Costs Per Person

Low
B 0 100 200 300 400 500 600 700 800 900 1,000 1,100 1,200
0 100 200 300 400 500 600 700 800 900 1,000 1,100 1,200 1,300 1,400
0 100 200 300 400 500 600 700 800 900 1,000 1,100 1,200

High
C 99 199
299 399 499 599 699 799 899 999 1,099 1,199 1,299 99 199 299 399 499 599 699 799 899 999 1,099 1,199 1,299 1,399 1.499 99 199 299 399 499 599 699 799 899 999 1,099 1,199 1,299

Midpoint
D-avg(B,q 49.50 149.50
249.50 349.50 449.50 549.50 649.50 749.50 849.50 949.50 1,049.50 1,149.50 1.224.50 49.50 149.50 249.50 349.50 449.50 549.50 649.50 749.50 849.50 949.50 1,049.50 1,149.50 1,249.50 1,349.50 1,417.50 49.50 149.50 249.50 349.50 449.50 549.50 649.50 749.50 849.50 949.50 1,049.50 1,149.50 1,249.50

Number of
People
E 20 410
301 710 813 1,123 908 919 542 516 280 295 126
5 242 71 260 413 729 673 949 594 734 460 390 369 230 124
1 145
27 83 116 249 320 542 395 549 404 374 422

Assume Cost at Full SCM

Total

Total

Monthly

Annual

Projected

Projected

Monthly Cost Monthly Cost

F-D'E $990

G-A'E $24,980

61,295

512,090

75,100

375,949

248,145

886,790

365,444 1,015,437

617,089 1,402,627

589,746 1,134,092

688,791 1,147,831

460,429

676,958

489,942 293,860 339,103 154,287

644,484 349,720 368,455 157,374

248

7,175

36,179

347,270

17,715

101,885

90,870

373,100

185,644

592,655

400,586 437,114

1,046,115 965,755

711,276 1.361,815

504,603

852,390

696,933 1,053,290

482,770

660,100

448,305

559,650

461,066

529,515

310,385

330,050

175,770

177,940

50

1,597

21,678

231,565

6,737 29,009

43,119 132,551

52,142

185,252

136,826

397,653

207,840

511,040

406,229

865,574

335,553

630,815

521,276

876,753

423,998

645,188

429,913

597,278

527,289

673,934

Additional
Cost
H-G-F $23,990 450,795 300,849 638,645 649,993 785,538 544,346 459,040 216,529 154,542 55,860 29,352 3,087 6,927 311,091 84,170 282,230 407,011 645,529 528,641 650,539 347,787 356,357 177,330 1ll,345 68,449 19,665 2,170 1,547 209,887 36,382 103,542 133,110 260,827 303,200 459,345 295,262 355,477 221,190 167,365 146,645

Additional
Cost
r-W12 $287,880 5,409,540 3,610,188 7,663,740 7,799,916 9,426,456 6,532,152 5,508,480 2,598,348 1,854,504 670,320 352,224
37,044 83,124 3,733,092 1,010,040 3,386,760 4,884,132 7,746,348 6,343,692 7,806,468 4,173,444 4,276,284 2,127,960 1,336,140 821,388 235,980 26,040 18,564 2,518,644 436,584 1,242,504 1,597,320 3,129,924 3,638,400 5,512,140 3,543,144 4,265,724 2,654,280 2,008,380 1,759,740

Assume Cost at SCM + 10%

Total

Monthly

Annual

Projected
Monthly Cost
J-(A'1.1)'E $27,478 563,299 413,544 975,469
1,116,981 1.542,890 1,247,501 1,262,614
744,654 708,932 384,692 405,301 173,111
7,893 381,997 112,074 410,410 651,921 1,150,727 1,062,331 1,497,997 937,629 1,158,619 726,110 615,615 582,467 363,055 195,734
1,757 254,722 47,431 145,806 203,777 437,418 562,144 952,131 693,897 964,428 709,707 657,006 741,327

Additional
Cost
K-J-F $26,488 502,004 338,444 727,324 751,537 925,801 657,755 573,823 284,225 218,990 90,832 66,198 18,824
7,645 345,818 94,359 319,540 466,277 750,141 625,217 786,721 433,026 461,686 243,340 167,310 121,401 52,670 19,964
1,707 233,044 40,694 116,797 151,635 300,592 354,304 545,902 358,344 443,152 285,709 227,093 214,038

Additional
Cost
L-K'12 $317,856 6,024,048 4,061,328 8,727,888 9,018,444 11,109,612 7,893,060 6,885,876 3,410,700 2,627,880 1,089,984 794,376 225,888
91,740 4,149,816 1,132,308 3,834,480 5,595,324 9,001,692 7,502,604 9,440,652 5,196,312 5,540,232 2,920,080 2,007,720 1,456,812
632,040 239,568 20,484 2,796,528 488,328 1,401,564 1,819,620 3,607,104 4,251,648 6,550,824 4,300,128 5,317,824 3,428,508 2,725,116 2,568,456

Assume Cost at SCM + 20%

Total

Monthly

Annual

Projected
Monthly Cost
M-(A'1.2)'E $29,976 614,508 451,139
1,064,148 1,218,524 1,683,152 1,360,910 1,377,397
812,350 773,381 419,664 442,146 188,849
8,610 416,724 122,262 447,720 711,186 1,255,338 1,158,906 1,634,178 1,022,868 1,263,948 792,120 671,580 635.418 396,060 213,528
1,916-' 277,878 51,743 159,061 222,302 477,184 613,248 1,038,689 756,978 1,052,104 774,226 716,734 808,721

Additional
Cost
N-M-F $28,986 553,213 376,039 816,003 853,080
1,066,063 771,164 688,606 351,921 283,439 125,804 103,043 34,562 8,362 380,545 104,547 356,850 525,542 854,752 721,792 922,902 518,265 567,015 309,350 223,275 174,352 85,675 37,758 1,866 256,200 45,006 130,052 170,160 340,358 405,408 632,460 421,425 530,828 350,228 286,821 281,432

Additional
Cost
Q.W12 $347,832 6,638,556 4,512,468 9,792,036
10,236,960 12,792,756 9,253,968 8,263,272 4,223,052 3,401,268 1,509,648 1,236,516
414,744 100,344 4,566,540 1,254,564 4,282,200 6,306,504 10,257,024 8,661,504 11,074,824 6,219,180 6,804,180 3,712,200 2,679,300 2,092,224 1,028,100 453,096
22,392 3,074,400
540,072 1,560,624 2,041,920 4,084,296 4,864,896 7,589,520 5,057,100 6,369,936 4,202,736 3,441,852 3,377,184

Assume Cost at 1.96 x Current Cost (David)

Total

Monthly

Projected
Monthly Cost
P-(F'I.96) $1,940 120,138
147,196 486,364 716,270 1,209,494 1,155,902 1,350,030 902,441 960,286 575,966 664,642 302,403
486 70,911 34,721 178,105 363,862 785,149 856,743 1,394,101 989,022 1,365,989 946,229 878,678 903,689 608,355 344,509
98 42,489 13,205 56,858 102,198 268,179 407,366 796,209 657,684 1,021,701 831,036 842,629 1,033,486

Additional

Annuai

Cost

Additional Cost

Q-P-F $950

R-Q'12 $11,400

58,843

706,116

72,096

865,152

238,219

2,858,628

350,826

4,209,912

592,405

7,108,860

566,156

6,793,872

661,239

7,934,868

442,012

5,304,144

470,344 282,106 325,539 148,116

5,644,128 3,385,272 3,906,468 1,777,392

238

2,856

34,732

416,784

17,006

204,072

87,235

1,046,820

178,218

2,138,616

384,563 419,629

4,614,756 5,035,548

682,825

8,193,900

484,419

5,813,028

669,056

8,028,672

463,459

5,561,508

430,373

5,164,476

442,623

5,311,476

297,970

3,575,640

168,739

2,024,868

48

576

20,811

249,732

6,468 27,849

77,616 334,188

50,056

600,672

131.353

1,576,236

199,526

2,394,312

389,980

4,679,760

322,131

3,865,572

500,425

6,005,100

407,038

4,884,456

412,716

4,952,592

506,197

6,074,364

1,300

1,399 1,349.50

270

364,365

431,190

66,825

801,900

474,309

109,944

1,319,328

517,428

153,063

1,836,756

714,155

349,790

4,197,480

Page 1 of4

. "
'~ ,

Additional Cost if Utilization Review Function Removed Persons with Disabilities Waiver

EXHIBIT 2

Current Service Plans

Calculaon of Additional Cost if Utilization Review Function Removed

Projected Monthly Costs Per Person

SCM
A 1,597 1,597
1,912 1,912 1,912 1,912 1,912 1,912 1,912 1,912 1,912 1,912 1,912 1,912 1,912 1,912 1,912 1,912 1,912 1,912 1,912 1,912 2,247 2,247 2,247 2,247 2,247 2,247 2,247 2,247 2,247 2.247 2,247 2,247 2,247 2,247 2,247 2,247 2,247 2,247 2,247
2,247

Low
6 1,400 1,500
0 100 200 300 400 500 600 700 800 900 1,000 1,100 1,200 1,300 1,400 1,500 1,600 1,700 1,800 \,900 100 200 300 400 500 600 700 800 900 1,000 1,100 1,200 1,300 1,400 1,500 1,600 1,700 1,800 1,900
2,000

High
C 1,499 1,599
99 ]99 299 399 499 599 699 799 899 999 1,099 1,199 1,299 1,399 1,499 1,599 1,699 1,799 1,899 1,999 199 299 399 499 599 699 799 899 999 1,099 1,199 1,299 1,399 1,499 1,599 1,699 ],799 1,899 1,999
2,099

Midpoint
o-avg(B,q 1,449.50 1,548.50
49.50 149.50 249.50 349.50 449.50 549.50 649.50 749.50 849.50 949.50 1,049.50 1,149.50 1,249.50 1,349.50 1,449.50 1,549.50 1,649.50 1,749.50 1,849.50 \,906.00 149.50 249.50 349.50 449.50 549.50 649.50 749.50 849.50 949.50 ],049.50 1,149.50 1,249.50 1,349.50 1,449.50 1,549.50 1,649.50 1,749.50 1,849.50 1,949.50

Number of
E 391 297 3 54 14 34 50 104 160 256 205 320 254 214 325 206 340 204 166 259 173 65 2 1 16 13 35 46 lJ2 81 169 134 118 179 150 236 127 115 ]58 163 255

2,049.50

127

Assume Cost at Full SCM

Total

Total

Monthly

Annual

Projected

Projected

Additional Additional

Monthly Cost Monthly Cost

F-[>'E 566,755

G-A'E 624,427

459,905

474,309

149 8,073 3,493 11,883 22,475 57,148 103,920 191,872 174,148 303,840 266,573 245,993 406,088 277,997

5,736 103,248
26,768 65,008 95,600 198,848 305,920 489,472 39],960 611,840 485,648 409,168 621,400 393,872

492,830

650,080

316,098 273,817 453,121 319,964 123,890

390,048 317,392 495,208 330,776 124,280

299 250 5,592 5,844 19,233 29,877 83,944

4,494 2,247 35,952 29,211 78,645 103,362 251,664

68,810

182,007

160,466

379,743

140,633 135,641 223,661

30] ,098 265,146 402,213

202,425

337,050

342,082 196,787 189,693 276,421 301.469 497,123

530,292 285,369 258,405 355,026 366,261 572,985

Cost
H-G.F 57,672 14,404
5,587 95,175 23,275 53,125 73,125 141,700 202,000 297,600 2]7,812 308,000 219,075 163,175 215,314 lJ5,875 157,250 73,950 43,575 42,087 10,812
390 4,195 1,997 30,360 23,367 59,412 73,485 167,720 113,197 219,277 160,465 129,505 178,552 134,625 188,210 88,582 68,712 78,605 64,792 75,862

Cost
t-WU 692,064 172,848
67,044 ],142,100
279,300 637,500 877,500 1,700,400 2,424,000 3,571,200 2,613,744 3,696,000 2,628,900 1,958,100 2,583,744 1,390,500 1,887,000 887,400 522,900 505,044 129,744
4,680 50,340 23,964 364,320 280,404 712,944 881,820 2,012,640 1,358,364 2,631,324 ] ,925,580 1,554,060 2,142,624 1,615,500 2,258,520 1,062,984 824,544 943,260 777,504 910,344

Assume Cost at SCM + 10%

Total

Monthly

Annual

Projected

Additional Additional

Monthly Cost
J-(Nl.l)"E 686,870 521,740
6,310 113,573
29,445 71,509 105,160 218,733 336,512 538,419 431,156 673,024 534,213 450,085 683,540 433,259 715,088 429,053 349,131 544,729 363,854 136,708 4,943 2,472 39,547 32,132 86,510 113,698 276,830 200,208 417,717 331,208 291,661 442,434 370,755 583,321 313,906 284,246 390,529 402,887 630,284

Cost
K-J.F 120,115 61,835
6,161 ]05,500 25,952 59,626 82,685 161,585 232,592 346,547 257,008 369,184 267,640 204,092 277,452 155,262 222,258 lJ 2,955 75,314 91,608 43,890 12,818
4,644 2,222 33,955 26,288 67,277 83,821 192,886 131,398 257,251 ] 90,575 156,020 218,773 168,330 241,239 117,119 94,553 114,108 101,418 133,161

Cost
L.K'12 1,441,380
742,020
73,932 1,266,000
311,424 715,512 992,220 1,939,020 2,791,104 4,158,564 3,084,096 4,430,208 3,211,680 2,449,104 3,329,424 1,863,144 2,667,096 1,355,460 903,768 1,099,296 526,680 153,816 55,728 26,664 407,460 315,456 807,324 1,005,852 2,314,632 1,576,776 3,087,012 2,286,900 1,872,240 2,625,276 2,019,960 2,894,868 1,405,428 1,134,636 1,369,296 1,217,016 \'597,932

Assume Cost at SCM + 20%

Total

Monthly

Annual

Projected

Additional

Additional

Monthly Cost
M-(A'I.2)'E 749,312 569,171
6,883 123,898
32,122 78,010 114,720 238,618 367,104 587,366 470,352 734,208 582,778 491,002 745,680 472,646 780,096 468,058 380,870 594,250 396,931 149,136 5,393 2,696 43,142 35,053 94,374 124,034 301,997 218,408 455,692 361,318 318,175 482,656 404,460 636,350 342,443 310,086 426,031 439,513 687,582

Cost
N-M.F 182,557 109,266
6,734 115,825
28,629 66,127 92,245 181,470 263,184 395,494 296,204 430,368 316,205 245,009 339,592 194,649 287,266 151,960 107,053 141,129 76,967 25,246 5,094 2,446 37,550 29,209 75,141 94,157 218,053 149,598 295,226 220,685 182,534 258,995 202,035 294,268 145,656 120,393 149,610 138,044 190,459

Cost
C>-W12 2,190,684 1,311,192
80,808 1,389,900
343,548 793,524 1,106,940 2,177,640 3,158,208 4,745,928 3,554,448 5,164,416 3,794,460 2,940,108 4,075,104 2,335,788 3,447,192 1,823,520 1,284,636 1,693,548 923,604 302,952 61,128 29,352 450,600 350,508 901,692 1,129,884 2,616,636 1,795,176 3,542,712 2,648,220 2,190,408 3,107,940 2,424,420 3,531,216 1,747,872 1,444,716 1,795,320 1,656,528 2,285,508

Assume Cost at 1.96 x Current Cost (David)

Total

Monthly

Projected

Additional A nnuol

Monthly Cost
P-(p1.96) 1,110,840 901,414
292 ]5,823 6,846 23,291 44,051 112,010 203,683 376,069 341,330 595,526 522,483 482,146 795,932 544,874 965,947 619,552 536,681 888,lJ7 627,129 242,824
586 490 10,960 lJ,454 37,697 58,559 164,530 134,868 314,513 275,641 265,856 438,376 396,753 670,481 385,703 371,798 541,785 590,879 974,361

Cost

Additional Cost

Q-P.F 544,085

R-Q'U 6,529,020

441,509

5,298,108

143

1,716

7,750 93,000

3,353 40,236

11,408 136,896

21,576 258,912

54,862 658,344

99,763 1,197,156

184,197 2,210,364

167,]82 2,006,184

29\,686 3,500,232

255,910 3,070,920

236,153 2,833,836

389,844 4,678,128

266,877 3,202,524

473,117 5,677,404

303,454 3,641,448 262,864 3,154,368 434,996 5,219,952 307,165 3,685,980 118,934 1,427,208

287 240
5,368 5,610 18,464 28,682 80,586

3,444 2,880 64,416 67,320 221,568 344,184 967,032

66,058 792,696

154,047 1,848,564

135,008 1,620,096 130,215 1,562,580 214,715 2,576,580

194,328 2,331,936

328,399 3,940,788 188,916 2,266,992 182,105 2,185,260 265,364 3,184,368 289,410 3,472,920 477,238 5,726,856

260,287

285,369

25,082

300,984

313,906

53,619

643,428

342,443

82,156

985,872

510,163

249,876 2,998,512

Page 2 of 4

, ,

Additional Cost if Utilization Review Function Removed Persons with Disabilities Waiver

EXHIBIT 2

Current Service Plans

SCM
A 2,247 2,247
2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,4-10 2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,430
2,612 2,612 2,612 2,612 2,612 2,612 2,612 2,612 2,612 2,612 2,612 2,612 2,612 2,612 2,612 2,612

Projected Monthlv Costs Per Person

Low
6 2,100 2,200
100 300 400 500 600 700 800 900 1,000 ],100 1,200 1,300 ],400 1,500 1,600 1,700 1,800 1,900 2,000 2,100 2,200 2,300 2,400
100 300 500 600 700 800 900 1,000 1,100 1,200 1,300 1,400 1,500 1,600 1,700 1,800

High
C 2,199 2,299
199 399 499 599 699 799 899 999 1,099 1,199 1.299 1,399 1,499 1,599 1,699 1,799 1,899 1,999 2,099 2,199 2,299 2,399 2,499
199 399 599 699 799 899 999 1.099 1,199 1,299 1,399 1,499 1,599 1,699 1.799 1,899

Total

Number of Projected

Midpoint MonthlyCost Monthly Cost

[)-,vg(6,C)

E

F-D'E

2,149.50

129

277,286

2,223.50

90

200,115

149.50

1

150

349.50

1

350

449.50

3

1,349

549.50 649.50 749.50

6

3,297

19

12,341

31

23,235

849.50

24

20,388

949.50

69

65,516

1,049.50

60

62,970

1,149.50

63

72,419

1,249.50 1,349.50

71

88,715

75

101,213

1.449.50

127

184,087

1,549.50

58

89,871

1,649.50

74

122,063

1,749.50 1,849.50 1,949.50

87

152,207

96

177,552

168

327,516

2,049.50

77

157,812

2,149.50

118

253,641

2,249.50

97

218,202

2,349.50 2,415.00

144

338,328

78

188,370

149.50

1

150

349.50

1

350

549.50

2

1,099

649.50

1

650

749.50

7

5,247

849.50

7

5,947

949.50

10

9,495

1,049.50

15

15,743

1,149.50

16

18,392

1,249.50

23

28,739

1,349.50

23

31,039

1,449.50

48

69,576

1,549.50

21

32,540

1,649.50

30

49,485

1,749.50

52

90,974

1,849.50

70

129,465

2,612

1.900

1,999

1,949.50

104

202,748

Calculation of Additional Cost if Utilization Review Function Removed

Assume Cost at Full SCM

Assume Cost at SCM + 10%

Assume Cost at SCM + 20%

Assume Cost at 1.96 x Current Cost (David)

Total
Projected
G-A"E 289,863 202,230 2,430 2,430 7,290 14,580 46,170 75,330 58,320 167,670 145,800 153,090 172,530 182,250 308,610 140,940 179,820 211,410 233,280 408,240 187,110 286,740 235,710 349,920 189,540 2,612 2,612 5,224 2,612 18,284 18,284 26,120 39,180 41,792 60,076 60,076 125,376 54,852 78,360 135,824 182,840

Monthly
Additional
Cost
H-G-F 12,577 2,115 2,280 2,080 5,941 11,283 33,829 52,095 37,932 102,154 82,&10 80,671 83,815 81,037 124,523 51,069 57,757 59,203 55,728 80,724 29,298 33,099 17,508 11,592 1,170 2,462 2,262 4,125 1,962 13,037 12,337 16,625 23,437 23,400 31,337 29,037 55,800 22,312 28,875 44,850 53,375

Annual
Additional
Cost 1-H"12
150,924 25,380 27,360 24,960 71,292 135,396 405,948 625,140 455,184 1,225,848 993,960 968,052 1.005,780 972,444 1,494,276 612,828 693,084 710,436 668,736 968,688 351,576 397,188 210,096 139,104 14,040 29,544 27,144 49,500 23,544 156,444 148,044 199,500 281,244 280,800 376,044 348,444 669,600 267,744 346,500 538,200 640,500

Total
Projected
Monthly Cost J-(A"1.1)"E
318,849 222,453
2,673 2,673 8,019 16,038 50,787 82,863 64,152 184,437 160,380 168,399 189,783 200,475 339,471 155,034 197,802 232,551 256,608 449,064 205,821 315,414 259,281 384,912 208,494 2,873 2,873 5,746 2,873 20,112 20,112 28,732 43,098 45,971 66,084 66,084 137,914 60,337 86,196 149,406 201,124

Monthly
Additional
Cost K-J-F
41,563 22,338 2,523 2,323 6,670 12,741 38,446 59,628 43,764 118,921 97,410 95,980 101.068 99,262 155,384 65,163 75,739 80,344 79,056 121,548 48,009 61,773 41,079 46,584 20,124
2,723 2,523 4,647 2,223 14,865 14,165 19,237 27,355 27,579 37,345 35,045 68,338 27,797 36,711 58,432 71,659

Annual
Additional
Cost L-K"12
498,756 268,056 30,276 27,876 80,040 152,892 461.352 715,536 525,168 1.427,052 1,168,920 1,151,760 1.212,816 1,191,144 1,864,608 781,956 908,868 964,128 948,672 1,458,576 576,108 741,276 492,948 559,008 241.488
32,676 30,276 55,764 26,676 178,380 169,980 230,844 328,260 330,948 448,140 420,540 820,056 333,564 440,532 701,184 859,908

Total
Projected
Monthly Cost
M-(A"1.2)"E
347,836 242,676
2,916 2,916 8,748 17,496 55,404 90,396 69,984 201,204 174,960 183,708 207,036 218,700 370,332 169,128 215,784 253,692 279,936 489,888 224,532 344,088 282,852 419,904 227,448 3,134 3,134 6,269 3,134 21,941 21,941 31,344 47,016 50,150 72,091 72,091 150,451 65,822 94,032 162,989 219,408

Monthly
Additional
Cost N-M-F
70,550 42,561 2,766 2,566 7,399 14,199 43,063 67,161 49,596 135,688 111,990 111,289 118,321 117,487 186,245 79,257 93,721 101,485 102,384 162,372 66,720 90,447 64,650 81,576 39,078
2,984 2,784 5,170 2,484 16,694 15,994 21,849 31,273 31,758 43,352 41,052 80,875 33,282 44,547 72,015 89,943

Annual
Additional
Cost o-W12
846,600 510,732 33,192 30,792 88,788 170,388 516,756 805,932 595,152 1,628,256 1,343,880 1,335,468 1,419,852 1,409,844 2,234,940 951,084 1,124,652 1,217,820 1,228,608 1.948,464 800,640 1,085,364 775,800 978,912 468,936
35,808 33,408 62,040 29,808 200,328 191,928 262,188 375,276 381,096 520,224 492,624 970,500 399,384 534,564 864,180 1.079,316

Tota!
Projected
Monthly Cost P-(p1.96) 543,481 392,225 294 686 2,644 6,462 24,188 45,541 39,960 128,411 123,421 141,941 173,881 198,377 360,811 176,147 239.243 298,326 348,002 641,931 309,312 497,136 427,676 663,123 369,205 294 686 2,154 1,274 10,284 11,656 18,610 30,856 36,048 56,328 60,836 136,369 63,778 96,991 178,309 253,751

Monthly

Additional

Annual

Cost

Additional Cost

Q-P-F 266,195 192,110

R-Q"12 3,194,340 2,305,320

144

1,728

336

4,032

1.295 15,540

3,165 11,847 22,306

37,980 142,164 267,672

19,572 234,864

62,895 754,740

60,451 725,412

69,522 834,264

85,166 1,021,992 97,164 1,165,968

176,724

2,120,688

86,276 1,035,312

117,160

1,406,160

146,119 170,450 314,415

1,753,428 2,045,400
3,m,980

151,500

1,818,000

243,495

2,921,940

209,474

2,513,688

324,795 180,835

3,897,540 2,170,020

144

1,728

336

4,032

1,055 12,660

624

7,488

5,037 60,444

5,709 68,508

9,115 109,380

15,113 181,356

17,656 211,872

27,589 331,068

29,797 357,564

66,793 801,516

31,238 374,856

47,506 570,072

87,335 1,048,020

124,286 1,491,432

271,648

68,900

826,800

298,813

96,065

1,152,780

325,978

123,230

1,478,760

397,386

194,638 2,335,656

Page 3 of 4

Additional Cost if Utilization Review Function Removed Peru!nS with.DJSJ!biIities Wal'\ler

EXHIBIT 2

Currenl Service PlansProjected Monthlv Costs Per Person

SCM A 2,612 2,612 2,612 2,612 2,612 2,612
2,612

Low B 2,000 2,100 2,200 2,300 2,400 2,500
2,600

High
C 2,099 2,199 2,299 2,399 2,499 2,599

Midpoint
o-avg(!l,C) 2,049.50 2,149.50 2,249.50 2,349.50 2,449.50 2,549.50

Number of
E 37 62 54 77 132 112

2,699 2,606,00

84

Calculation of Additional Cost if Utilization Review Function Removed

Assume Cost at Full SCM

Assume Cost at SCM + 10%

Assume Cost at SCM + 20%

Assume Cost at 1,96 x Current Cost (David)

Total

Total

Projected

Projected

MonthlyCost Monthly Cost

F-IJ>E 75,832

G-A'E 96,644

133,269

161,944

121,473

141.048

180,912

201,124

323,334

344,784

285,544

292,544

Monthly
Additional
Cost H-G-F
20,812 28,675 19,575 20,212 21,450 7,000

Annual
Additional
Cost I-H'12
249,744 344,100 234,900 242,544 257,400 84.000

Total
Projected
Monthly Cost }-(A'1.1)'E 106,30g 178,138 155,153 221,236 379,262 321,798

Monthly
Additional
Cost K-J.F
30,476 44,869 33,680 40,324 55,928 36,254

Annual
Additional
Cost L.K'12
365,712 538,428 404,160 483,888 671,136 435,048

Total
Projected
Monthly Cost M-(A'J.2)'E 115,973 194,333 169,258 241,349 413,741 351.053

Monthly
Additional
Cost N-M.F
40,141 61,064 47,785 6Q,437 90,407 65,509

Annual

Total

Additional

Projected

Cost C>-W12
481,692 732,768 573,420 725,244 1.084,884 786,108

Monthly Cost
P.(F'1.96) 148,631 261,207 238,087 354,588 633,735 559,666

Monthly

Additional

Annual

Cost

Additional Cost

Q-P.F 72,799

R-Q'12 873,588

127,938

1,535,256

116,614

1,399,368

173,676

2,084,112

310,401

3,724,812

274,122

3,289,464

218,904

219,408

504

6,048

241,349

22,445

269,340

263,290

44,386

5,.12,632

429,052

210,148

2,521.776

Totals

26,189 $26,197,059 $43,351,119 $17,154,060 $205,848,720 $47,686,235 $21,489,176

Note:

Rountkd

206,000,000

The data Indicated that service plans for 38 individuals had projected monthly cost per person in excess of the SCM.

Based on discussions with DRS staff, we understand that these are cases where additional services were temporarily authorized for special circumstances. For

purposes of this analysis, we have excluded these 38 service plans and their projected costs.

$257,870,112 258,000,000

$52,021,345

$25,824,286

$309,891,432 310,000,000

$51,346,227

$25,149,168

$301,790,016 302,000,000

For projected cost intervals (above) where the monthly 5CM fell within the monthly projected cost range, the Midpoint (col, D) is calculated as the average between the Low (col. B) and the SCM (col. A).

Page 4 of 4

 
 Case 1:06-cv-02211 Document 62 Filed 05/29/2007 Page 1 of 12

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

DAVID GROOMS,

)

Plaintiff,

)

v.

)

BARRY S. MARAM,

)

Director, Illinois Department of

Healthcare and Family Services

Defendant.

) )
No. 06 C 2211 )
Judge Rebecca Pallmeyer

)

Magistrate Judge Martin C. Ashman

)

)

)

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES
I. INTRODUCTION AND FACTUAL BACKGROUND This is an action brought by an individual pl aintiff under Title II of the Am ericans with Disabilities Act (“ADA”), 42 U.S.C. §12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). The Com plaint (attached hereto as Exhibit A) alleges a violation of the “integration mandate” as interpreted by the United States Suprem e Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 592 (1999), which requires that an agency “ ‘administer its services, programs and activities in the m ost integrated setting appropriate to the needs of qualified individuals with disabilities.’ ” David Grooms, the Plaintiff, is a Medicaid recipient who, according to his Complaint, has Glycogen Storage Disease. Prior to his 21 st birthday, David received Me dicaid services in his home pursuant to the Medically Fragile and T echnology Dependent (“MFTD”) waiver program, at a cost of approxim ately $17,000, including $1,000 for respite services. Upon turning 21, David “aged out” of that waiver and sought bene fits under the Illinois Hom e Services Program.

Case 1:06-cv-02211 Document 62 Filed 05/29/2007 Page 2 of 12
The State has elected to fund the Home Services Program through a Medicaid waiver, the Illinois Persons with Disabilities (“PW D”) waiver, which is operated by the Division of Rehabilitation Services (“DRS”) of the Departm ent of Human Services (“DHS”). On his 21st birthday, David’s benefits were reduced by approximately one half, to $8,660.
Although DHS operates the Hom e Services Program and the PW D waiver, the Department of Healthcare and Family Services (“HFS”) is the lead Medicaid agency for the State of Illinois. 42 U.S.C. § 1396a(a)(5). David brought this action against Barry Maram in his official capacity as Director of HFS, to enjoin HFS f rom continuing to im pose the rate cap that resulted in the reduction of his benefits when he reached the age of 21. That cap, called the Service Cost Maximum (“SCM”), imposed by HFS, is based on a nursing f acility level of care for all persons in the PWD waiver.
Federal law requires that, as to every Medi caid recipient receiving services, only those services that are necessary and appropriate m ay be paid for by the State with Medicaid funds. See 42 U.S.C. 1396. Further, services provided in the home pursuant to waiver program s must be cost-neutral, i.e., the cost to the State m ust be equal to or less than the cost of serving the recipient in the institution that would provide him or her the appropriate level of care. See 42 C.F.R. § 441.302(e), Radaszewski v. Maram, 383 F. 3d. 599, 602 (7th Cir. 2004).
Pursuant to the Seventh Circuit’s decision in Radaszewski, to prevail in this action, David will be required to prove that the level of care that he actually needs exceeds the level of care that Defendant has selected (nursing facility care at the exceptional care rate), and that the cost of serving his actual needs in an appropriate institution would be greater than the costs of providing his services in the hom e. Once that is proven, David claims, he will be entitled to be served in his home at Medicaid expense pursuant to the ADA’s integration mandate.
2

Case 1:06-cv-02211 Document 62 Filed 05/29/2007 Page 3 of 12
These are matters that David intends to prove at trial, at which tim e Defendant will have the opportunity to present evidence to refute David’s claims. David does not seek a ruling on those issues by this motion, as he recognizes that they are disputed and will require a trial.
In addition to denying David’s allegations a nd denying that he is entitled to relief based on his claim s, Defendant has inte rposed Affirmative Defenses that he claim s defeat David’s action even if David m akes the above showings. ( See Defendant’s Am ended Answer and Affirmative Defenses to Com plaint, attached hereto as Exhibit B.) Def endant claims that providing relief to David in this case would resu lt in a fundam ental alteration to the State’s Medicaid Program (Defendant’s Affirmative Defense No. 1)) and would be inequitable because it would result in an undue burden on the State’s re sources needed to meet its responsibilities to other persons (Affirm ative Defense No. 2.). Pl aintiff's motion for partial sum mary judgment addresses these defenses only.
A motion for partial sum mary judgment is an appropriate vehicle for obtaining pre-trial dismissals of affirmative defenses. See Petroff Trucking Co, Inv. V. Envirocon, Inc., 2006 WL 293866 (S.D. IL 2006) (“District Courts within th e Seventh Circuit ‘routinely entertain m otions for partial summary judgment seeking the dism issal of affirmative defenses. Wildey v. Springs, 1993 WL 350195 (N.D. Ill. 1993).’”).
Defendant has the burden of pr oof on his affirm ative defenses. Dole v. Chandler, 438 F. 3d 804 (7 th Cir. 2006). As we show below, based on th e undisputed facts that are m aterial to Defendant’s Affirmative Defenses 1 and 2, and th e applicable law, Defendant cannot m eet his burden of proof, and his affirm ative defenses should be dism issed with prejudice as a m atter of law.
3

Case 1:06-cv-02211 Document 62 Filed 05/29/2007 Page 4 of 12
II. ARGUMENT THERE IS NO MATERIAL DISPUTE OF FACT REGARDING DEFENDANT’S FUNDAMENTAL ALTERATION AND INEQUITABLE
BURDEN AFFIRMATIVE DEFENSES BASED ON COST, AND THEY SHOULD BE REJECTED AS A MATTER OF LAW Defendant cannot meet his burden to prove a fundamental alteration or inequitable burden defense based on costs to the State. Defendant has asserted two affirmative defenses based on cost. Defendant contends that, if awarded, the relief sought by David Grooms would, by reason of the resultant cost to the State of Illinois, result in a fundamental alteration to the State’s Medicaid Program (Affirmative Defense Number 1) and that it would be inequitable because it would constitute a burden on the State’s resources that would unfairly impact its duties to other citizens (Affirmative Defense Number 2). Defendant’s affirmative defenses cannot be sustained as a matter of law. Defendant appears to be claim ing that the relief David seeks would, if granted, have a two-fold impact: first, that many current nursing facility residents would also seek to be served in the community and Defendant would be required to pay for their services in the com munity at a significantly higher cost to HFS than the cost of the services provided in their nursing hom e placements; and second, that all of the current r ecipients of PWD waiver services in the hom e would seek--and would receive-- services at a cost to the State that exceeds their currently approved rate by the same amount (196%) that David Grooms’ approved rate would be increased were he to prevail in this action.
4

Case 1:06-cv-02211 Document 62 Filed 05/29/2007 Page 5 of 12
The Menenberg Report
In support of his affirm ative defenses, Defendant has disclosed the report of a purported
expert, Todd Menenberg. (“Men. Rept.,” attached hereto as Exhibit C). In his report, Mr.
Menenberg described his assigned inquiry as follows:
“I was asked by counsel to HFS to quantify the econom ic impact on the cost of the State’s current Persons with Disabilities W aiver program, assuming David were to prevail on his request for additional hom e services and then other individuals were then also able to access additional home services. The two populations I was asked to evaluate are:
1) Current nursing f acility residents who potentially would m ove from nursing facilities to com munity-based settings and receive services through the Persons with Disabilities Waiver program; and, 2) Current Persons with Disabilities Waiver recipients who currently use
services at a cost that is less than their SCM [Service Cost Maximum].” (Men. Rpt. p. 6) (emphasis supplied).
The Report further states:
“[W]e were asked to specifically quantify the following:
1) the cost for additional individuals that [sic] would m ove from nursing facilities into the com munity, who would access Medicaid facilities though the Persons with Disabilities Waiver, and
2) the additional cost f or current Persons with Disabilities W aiver recipients that [sic] would access additional HCBS services up to (and potentially in excess of) their SCMs.”
(Men. Rept. p. 8)
As to this second group, the Report stated that Menenberg was
“asked to calculate the cost that w ould be incurred if each service plan were increased by 196%, 1 which represents the difference between the
1 Reading the report and its appendices, we think it is accurate to state that Mr. Menenberg meant to state that the potential cost would be 196% of the current cost, not that it would be increased by 196%. See Men. Rept. Exhibit 2.
5

Case 1:06-cv-02211 Document 62 Filed 05/29/2007 Page 6 of 12
cost of services that David requested and the cost of the service plan developed for David for the Persons with Disabilities Waiver).” (Men. Rept. p. 8-9) Menenberg further states in his report regarding this group: “[t]he objective of this part of m y analysis was to estim ate the potential additional cost if the lim itations imposed by the DRS utilization review and service plan developm ent process were elim inated and the Persons with Disabilities W aiver recipients we re able to receive services up to their SCMs, and beyond.” (Men. Rept. p. 8-9) The Report indicates that Menenberg calcu lated that Group 1, consisting of nursing facility residents, would total approximately 1100 individuals.2 He concluded that the additional cost of serving this group in the com munity, when contrasted with their nursing hom e costs, would be $33 million at January 2007 rates. (Men. Rept. p. 12). For Menenberg’s Group 2, current PW D waiver recipients, Menenberg concluded that the “additional cost” to the State of serving them in their hom es at 196% of the cost of their current service plans would be between $206 million and $310 million annually. (Men. Rept. p. 13). As we demonstrate below, Mr. Menenberg’s Report is based on a misapprehension of the relief that David is actually seeking in this case, and its conclusions depend upon two legally erroneous assumptions. When the erroneous lega l assumptions are removed from the analysis, and the report is viewed in light of the relief David Groom s actually seeks, Defendant’s fundamental alteration and inequitable burden defenses collapse.
2 Plaintiff disputes the accuracy of Menenberg’s calculation that 1100 current nursing facility residents would seek to be served in the community. However, for purposes of this motion and the analysis contained herein, Plaintiff assumes that this number is correct.
6

Case 1:06-cv-02211 Document 62 Filed 05/29/2007 Page 7 of 12
Group 1: Nursing Facility Residents As noted above, Menenberg concludes that, if David Grooms prevails in this case, 1100 current nursing facility residents would be perm itted to leave the nursing hom e to be served in the community, at a rate higher than the rate Medicaid was paying the nursing f acility, for a total increased cost to the state of about $33 million. This conclusion is fatally flawed. First, it necessarily presum es that David’ s relief would include an injunction barring assessment of cost neutrality. But David seeks no such injunction, either for him self or for others. Rather, he seeks only that his current Service Cost Maximum, the “cap,” which has been arbitrarily based on nursing hom e level of care for everyone regardless of need, be lifted if he proves that the actual level of care that he needs is a greater than a nursing hom e level of care. Then, if and only if he demonstrates that the cost of th e home services he actually needs is less than the cost of providing the sam e services and care he requires in the appropriate institution, e.g. hospital, he would be entitled to r eceive those services in the hom e. See, e.g., Sidell v. Maram, No. 05-1001, p. 13-14. (C.D. Ill May 14, 2007)(attached hereto as Exhibit D).3
3 Contrary to the views espoused by Defendant, under the ADA cost neutrality is not assessed by resort to the requirements of the particular waiver under which HFS elects to deliver services. Thus, although the waiver application by HFS in this case limited the waiver to nursing facility rates, as the Seventh Circuit in Radaszewski made clear, and the Sidell court reiterated, neither federal nor state law requires that a waiver application for adult home services be limited to “nursing facility” rates: “What mattered to the Court in Radaszewski was cost. Since the cost to the State of institutionalizing the disabled [person] could be even more than the cost of in-home care, it did not matter that the State did not have an explicit waiver program in place for ‘hospital level care.’” Sidell v. Maram, No. 05-1001 (C.D. Ill., May 14, 2007) at p. 15. In Sidell, the State had argued that Gretchen Sidell did not “qualify” for the Adult Disabled Waiver Program because she was “actually seeking a waiver program for hospital level care reimbursement,” and “Illinois does not offer a waiver program for Hospital level care.” Id. The Court in Sidell rejected this argument, (“the fact that Gretchen may require “hospital level care” does not mean that she is ineligible for the HSP program”), and it should be rejected here.
7

Case 1:06-cv-02211 Document 62 Filed 05/29/2007 Page 8 of 12
Menenberg’s conclusions assume that his Group 1 recipients would not be subject to the same cost neutrality assessm ent that David is prepared to m eet.4 This assum ption is legally unsupportable. Indeed, David acknowledges that he himself cannot prevail without showing cost- neutrality as to the appropriate instituti onal level of care with all needed services. Defendant may not ignore cost neutrality either as to its selected 1,100 nursing home residents or as to David himself. Accordingly, Defendant cannot base his defense on cost projections that do exactly that.
What the Menenberg report leaves out is this : If the appropriate level of care f or the nursing facility residents addressed in the Menenberg report is in fact a nursing facility, then for each and every person whose cost of care in the home would exceed the cost of serving him or her in the nursing facility, waiver services would appropriately be denied. Only those who could be served in the com munity at the sam e or lower cost as the cost of serving them in a nursing facility (regardless of the existen ce of a “cap”), i.e. in a cost-neutral m anner, would have to be approved for waiver services under Radaszewski. The “additional” cost to the State of serving that group in the home would therefore be $0, not $33 million.
In sum, Menenberg’s conclusion that serving current nursing home residents in the home would be required if David prevails in this case, and would cost the state an additional $33 million, depends upon the State ignoring federal law by ignoring the cost neutrality requirement. David Grooms does not seek, and this Court could not countenance, such a result.
4 Alternatively, one could postulate that Defendant has asked Menenberg to assume that everyone in Group 1 actually needs and can prove that they, too, actually need a higher level of care than they are receiving, e.g. a hospital level of care. But nothing in the expert Report or in Defendant’s pleadings suggest that Defendant believes that current nursing home residents are being inappropriately or inadequately served in the facilities in which they reside.
8

Case 1:06-cv-02211 Document 62 Filed 05/29/2007 Page 9 of 12
Group 2: Current Persons with Disabilities (“PWD”) Waiver Recipients As noted above, Menenberg estim ates that, if the relief sought by David Groom s in this action were awarded, all of the current recipien ts of waiver services under the Persons with Disabilities Waiver would receive benefits at 196% of their current benefits, thus subjecting the State to an additional cost of $258-310 m illion annually. This contention also depends upon a legally unfounded assum ption, i.e. that relief in this case would require the State to abandon “utilization review” and the m edically necessary requirement of waiver services and would provide services to everyone who asks without regard to actual individual need.5 Even if, for purposes of his motion, Plaintiff assumes that every current recipient of PWD waiver services would, after learning of a victory for David in this case, apply for a higher level of services, lifting the SCM “cap” could not lawfully result in increased services for any of those individuals unless the recipients proved what David is prepared to prove in this case. That would be that: 1) their actual level of need is higher th an can be met by benefits provided under the current cap on their benefits; and 2) the cost of m eeting their actual level of need is equal to or less than the cost of providing them the appropriate institutional level of care. Thus, only if the Defendant jettisoned the “needs” assessment and medical necessity altogether, i.e. “utilization review,” and gave everyone whatev er they asked for, would the financial horrors proclaimed in the Menenberg report conceivably occur.
5 The factual premise of the analysis (that virtually all current recipients would seek to increase their benefits, and would ask for nearly twice, i.e. 196% their current levels) is itself unsupported by any studies or other foundation and thus should be rejected.
9

Case 1:06-cv-02211 Document 62 Filed 05/29/2007 Page 10 of 12
Plaintiff submits that the relief he seeks in this case would actually have little or no effect on other current waiver recipients. It is utterl y illogical to assume that anyone who is currently receiving, without objection, benefits at a level lower than their current SCM would, as a result of lifting a cap that has to date had no adverse effect on him , suddenly seek a higher level of benefits because David’s cap was enjoined. Mo reover, unless and until any additional benefits approved by the State as a result of such reque st exceeds the individual’s previous SCM, the lifting of the cap could not be the cause of the “increase.” Finally, even if a Group 2 recipient seeking an increase proved a level of need th at exceeds the rate previously paid for hom e services, and even if that new rate exceeded his former SCM, the State would be obliged to deny him the increase to the extent it was not cost-neutr al as to the appropriate institutional cost. Accordingly, unless each and every current PW D waiver recipient actually needs and seeks a level of care higher than a nursing f acility level of care, the costs projected by Menenberg could never materialize.
In sum, even if this court accepts Mr. Me nenberg’s assumption that all of the PW D waiver recipients would seek to raise their level of benefits to 196% of their current levels, the conclusion that the State would incur the cost of pa ying benefits at that level as a result of David Groom prevailing in this lawsuit is legal error. This is because the Report proceeds not only on the unproven and illogical assum ption that all recipi ents would seek services that they do not currently receive, but, m ore important, on the a ssumption that the Defendant would in each and every case pay benefits without regard to whethe r they were necessary and appropriate or costneutral, in violation of the law.
10

Case 1:06-cv-02211 Document 62 Filed 05/29/2007 Page 11 of 12
III. CONCLUSION Defendant has taken the situation of one of a tiny m inority of the m ost medically complex of recipients, equated his claim ed needs with the aspirations of every waiver recipient and many current nursing hom e recipients, and us ed that “equation” to deny David Groom s his much-needed services. Defendant does not suggest or believe that every recipient actually has the same needs or needs as serious as those of David. Nevertheless, to buttress his “sky is falling” defense, Defendant assumes that, without a benefit cap, every recipient will ask for--and receive-- the same level of benefits David seeks in this case, regardless of need. He can offer no evidence to support the assum ption that they will ask, and—more important—no legal basis for assuming they would receive, those benefits. David Grooms does not seek the enjoining or abandonm ent of either the cost neutrality requirement or the “utilization review” needs assessment and medical necessity requirement, but, to the contrary, intends to be held to his burde n of proof on those very issues. Likewise, should David Grooms prevail in this case and obtain the relief he seeks in this single-plaintiff case, other recipients seeking additional benefits base d on the ADA would be subject to those sam e requirements. Defendant’s cost projections, which depend entirely on those critical requirements being ignored, m ust be rejected. Defendant ca nnot therefore m eet his burden of proof on his affirmative defenses, and they must be rejected as a matter of law. WHEREFORE, for the foregoing reasons, Defe ndant’s Affirmative Defenses 1 and 2 should be rejected as a matter of law and dismissed with prejudice.
11

Case 1:06-cv-02211 Document 62 Filed 05/29/2007 Page 12 of 12

Karen I. Ward Byron L. Mason Steven Giebelhausen Laura J. Miller Barry Taylor EQUIP FOR EQUALITY, INC. 20 North Michigan Avenue, Suite 300 Chicago, Illinois 60602 Tel: (312) 341-0022 Fax: (312) 341-0295

Respectfully Submitted,
KAREN I. WARD
/s/ Karen I Ward One of the Attorneys for Plaintiff

12

 
 AO 4C50a(Rseev.:51/8:50)Ju6d-gcmven-t0in2a2C1iv1il CDasoe cument #: 197 Filed: 06/13/08 Page 1 of 1 PageID #:2618
United States District Court
Northern District of Illinois
Eastern Division

David Grooms v.
Barry S. Maram

JUDGMENT IN A CIVIL CASE Case Number: 06 C 2211

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

IT IS HEREBY ORDERED AND ADJUDGED that a permanent injunction is issued. Defendant shall, effective immediately, restore the level of approved skilled nursing services to be provided to Plaintiff David Grooms under the Persons with Disabilities (“PWD”) Waiver in the amount approved by HFS prior to his 21st birthday, i.e., not less than 112 hours per week, plus 336 hours of respite care per year, at rates sufficient to assure consistent competent skilled nursing services for the approved hours. Plaintiff is awarded his reasonable attorneys’ fees, costs and litigation expenses, to be determined at a later date pursuant to Local Rules 54.1 and 54.3. The court shall retain jurisdiction of this matter for purposes of enforcement of this Order.

Date: 6/13/2008

Michael W. Dobbins, Clerk of Court
________________________________ /s/ Ena T. Ventura, Deputy Clerk

 
 Case: 1:06-cv-02211 Document #: 196 Filed: 06/13/08 Page 1 of 2 PageID #:2616

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

DAVID GROOMS,
Plaintiff,
v.
BARRY S. MARAM, Director, Illinois Department of Healthcare and Family Services

)

)

)

)

No. 06 C 2211

)

)

Judge Rebecca R. Pallmeyer

)

)

Magistrate Judge Martin C. Ashman

)

)

PERMANENT INJUNCTION ORDER

This matter came before the court on Plaintiff’s Motion for Preliminary Injunction. As explained

in a Memorandum Opinion and Order dated May 30, 2008, the court has reviewed the exhibits,

declarations, memoranda of law submitted by the parties and has denied Defendant’s Motion for

Summary Judgment. The court concluded, further, that Plaintiff had established the elements

necessary for the issuance of a preliminary injunction. Defendant has agreed that no further evidence

need be submitted before entry of permanent relief. NOW THEREFORE , IT IS HEREBY ORDERED:

A permanent injunction is issued as follows:

1. Defendant shall, effective immediately, restore the level of approved skilled nursing

services to be provided to Plaintiff David Grooms under the Persons with Disabilities (“PWD”) Waiver to the amount approved by HFS prior to his 21st birthday, i.e., not less than 112 hours per week, plus

336 hours of respite care per year, at rates sufficient to assure consistent competent skilled nursing

services for the approved hours.

2. Plaintiff is awarded his reasonable attorneys’ fees, costs and litigation expenses, to be

determined at a later date pursuant to Local Rules 54.1 and 54.3.

Case: 1:06-cv-02211 Document #: 196 Filed: 06/13/08 Page 2 of 2 PageID #:2617

3. The court shall retain jurisdiction of this matter for purposes of enforcement of this Order. ENTER:

Dated: June 13, 2008

_________________________________________ REBECCA R. PALLMEYER United States District Judge

 
 Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 1 of 47

IN THE UNITED STATES DISTRICT COURT FOR TI-IF, NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DAVID GROOMS,

)

)

Plaintiff,

) ) No.06C2211
Judge Rebecca R. Pallmeyer

)

Magistrate Judge Martin C. Ashman

BARRY S. MARAM, Director,

)

Illinois Department of Healthcare and

)

Family Services,

)

)

Defendant.

)

DEFENDANTS' EXHIBITS AND SUPPORTING MATERIALS

1viia r YLPAUIRINSUIAirNrTiVTOiirIILT1O1TC' AL

RULE 56.1(b)(1) IN RESPONSE
riii... Tb A TI'Tii-AtLT TT1i111vt1i11vA1j1-)ix%T .1,111

TO
i11'1TT

Exhibit A: Defendant's Amended Answer to Plaintiffs First Set of Interrogatories to Defendant.

Exhibit B: Analysis for Grooms v. Maram, prepared by Matthew Werner, Bates numbered HFS301460-HFS3O1 68.

Exhibit C: Unsworn Declaration of Barbara Ginder, with Attachment 1, Bates numbered 003016-003142.

Exhibit D: Plaintiffs Answers to Defendant's First Set of Interrogatories.

Exhibit E:

Plaintiffs Expert Report of Samuel S. Flint, Ph.D., Grooms v. Maram, dated
cJIuII /_nJ Ii

Exhibit F: Grooms v. Maram, Menenberg Rebuttal to Samuel S. Flint Report, dated 5/25/07.

Exhibit G:
Py1ihit T-T

Petroff Trucking Co, Inc. v. Envirocon, Inc., 2006 WL 2938666 (Dist. Ut. S.D. 111. October 13, 2006).
/'rnnrp.c .1 1w Ivliirnhv v BradLey. 1992 WL 390875 (N.D. Ill. 1992).

Exhibit I: LxtnbitJ:

Najieb v. Chrysler-Plymouth, 2002 WL 31906466 (ND. Ill. December 31, 2002).
StarKv. FFMAm., Inc. INO. UI U Ii'4, ZUUZTWT 'LI IiIIUrc03/K T T' T11i1.1eCp1I .. LU,
2002).

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 2 of 47

Dated: June 20. 2007

KAREN KONIECZNY #1506277 JOHN E. HUSTON #3 128039 CHRISTOPHER S. GANGE #6255970
Assistant Attorneys General
1rUn6n0icNagoor,thTILLi arOSnUa,OlflUleiI Street, Suite N-bOO
(312) 793-2380 Attorneys for Defendant

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 3 of 47
F__XI-HMR—IT— -A—

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 4 of 47

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

DAVID GROOMS,

)

Plaintiff,
v.
BARRY S. MARAM, Director, Illinois Department of Healthc are and

)

) ) No.06C2211

)

Judge Rebecca R. Pallmeyer

)

Magistrate Judge Martin C. Ashman

)

)

i-amiiy services,

)

)

Defendant.

)

DEFENDANT'S AMENDED ANSWER TO PLAINTIFF'S FIRST SET OF INTERROGATORIES TO DEFENDANT

fl Ifl iTATC AA

i_.. '11IPflTLIT- (1TD \ArTD'-DT'cSt.1J 0

'TTfT AD A 1.,1
'TAT-T\T'-TTAT

TCfl TC TT1 TCTTTTTT

1TTTTT1

JO

vsn P'-' 'T!UId 'SOO!AJOgUI 1!3!JJ0 'Aiotdt Aq suj 'Auio

Attorney General of Illinois, and pursuant to Rule 33 of the Federal Rules of Civil Procedure,

amends his response to Plaintiffs First Set of Interrogatories to Defendant as follows:

To the extent any individual identified in these interrogatory

responses is a current employee of the Illinois Department of

Healthcare and Family Services ("HFS"), the individual is

represented by the Office of the Attorney General, Welfare

Litigation Bureau, and may be contacted only through the

f fhv V (ti7Z Defendant's attorneys except to the extent that subpoenas must be

:A +hr' +r cnn In nTh-nCCT

FCnTT1 rnT.4TTTn

l11QirPQQ
TTflTT% T'IPF,TC,%T F.

VIQQ'Q

qI iouj doi ogjTj Jo Auioy

ouum

suoodqns uo

jpqjo4I SdH soAojdui

To the extent identified herein, Documents Bates numbered HFS 300416 — FIFS 300785 have been previously withheld from
production because they are documents pertaining to David
(_r)1rtrJ\JrflrJ_lc., ujh'1i VV1Lfl'JS nr rn1l h1th infnrmtinn ini1iidiiic
information regarding David Grooms's disability and medical
condition (including diagnoses), and information relating to David Grooms's medical services under the Home and Community Based
Services Waiver for Medically Fragile and lechnology L)epenclent Children and Home and Community Based Services Waiver for

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 5 of 47

Persons with Disabilities. The documents contain individual

Medicaid recipient information and personal health information

that is confidential and protected under federal Medicaid law and

-.+h the Health Insurance Portability Accountability Act of 1996. See

J Ar 4ai2iuU'+.S3.Cr'..'.rF§'.n11\3.T9r6aIa-i(ia1i)o(J'7-it)-;,O4U2LUC.p-.aF÷I.L,RAJ. -§t

431.305; 45 c.F.R. Part 160;
ctllu LL'. u11c.1ucaILIy, L11cc

documents cannot be disclosed without written authorization and

an appropriate protective order entered by the Court.

INTERROGATORY NO.1:

Please state, by year, for years 2000 through 2006, the number of participants in the

Medically Fragile Technology Dependent Children's Waiver Program who lost eligibility

because they reached the age of 21.

DEFENDANT'S ANSWER TO INTERROGATORY NO.!:

h-i-, -'mc,z if lj ir{r mficr 17hh ic TTT 1TTD1-TTTr1

Vi'VIflCu

+,Cu

(TCYIT9(\TT'1TTT

NT fTK

1T

11''C1

T ("T''C' TTt.TThTTTT(\TTTT

'T

iui pno[o Pi 1q1oU 1UATo1 01 I2ofqns

jquosoi POATOAU U! SU4 UOI13 IOU St

o

to the discovery of admissible evidence.

INTERROGATORY NO.2:

For each individual identified in response to Interrogatory No. 1 above, please, state, with

respect to the last year of participation in the children's waiver program, which of the individuals

were considered by the Department of Specialized Care for Children (DSCC) to require a
h,-td 1139J1LL&L11,¼r'?i,Vc1¼?eI ¼f JrSt .f)Lfa1¼i?vssFfl#cJiL'l-'n'i rt re,eive hnme crnd 'nmmiinitv hiczed 'er.ne llnrlpr the

Medically Fragile Technology Dependent Children's Waiver Program. DEFENDANT'S ANSWER TO INTERROGATORY NO.2:

The Defendant objects to Interrogatory No. 2 because it is unintelligible and vague, argumentative, seeks further information that was not requested in Interrogatory No. 1, and seeks

information which is neither relevant to the subject matter involved in this action nor is

reasonably calculated to lead to the discovery of admissible evidence.

2

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 6 of 47

INTERROGATORY NO.3: Please identify each and every person who, within the past five years, participated in
evaluating or approving any care plan for David Grooms relative to his participation in the

Waiver Program for Medically Fragile, Technology Dependent Children under 21. Please state

the current job title, telephone number and address for each person.

DEFENDANT'S ANSWER TO INTERROGATORY NO.3:

LJ¼.,.L¼#iAI_LCt.L1L

fLcJ

NS frlJ.h cie it ePPlc in+rrmtici, 'whii'h ic neither

relevant to the subject matter involved in this action nor reasonably calculated to lead to the

discovery of admissible evidence.

INTERROGATORY NO.4:

Please state the institutional setting Defendant believes David Grooms would require if

he were not to continue to receive home or community bases services. Please include in your

response:
I',' T.1hfl1 sfati'Lii1

frr vJivur r—pncu1cze

(b) The name, telephone number, job title and address of each person having

information concerning the level of institutional care David Grooms would

require if he does not continue to receive home or community based services.

(c) Please identify each and every document that supports your response, or is

related to your response in any way. DEFENDANT'S ANSWER TO INTERROGATORY NO.4:
Defendant objects to Interroatorv No. 4 because it calls for sneculation. If David Groom's physician wouM not approve his current participation in HSP because he cannot be saieiy —serveu in _i_n1_c_ 1noine wiunu Inc pro—g—n-—u-—i—i—n1r__n__n__s, uaviu ,u'_r_ooms wo_u_i1a11nave io mmI cc1n• is own

3

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 7 of 47
arrangements for care, for example, enter a nursing facility. The Defendant does not determine the appropriate institutional setting that individuals, such as David Grooms, may require if they choose not to participate in the Home Services Program.
(b) Barbara Ginder, Chief Bureau of Interagency Coordination Department of Healthcare & Family Services 1320 S. Second Street Springfield, Illinois 62704 " i-1,iififcr1 fc t1i eyfpiit her Icrirw1edcje limited th statements in (a) re garding the o;e;afion of HSP. She has no knowledge of David Grooms's particular case file or institutional setting needed.
(c) David Groom's case records in the DRS HSP case file, Documents Bates
numbered TIFS 300416 — HFS 300785. See also Documents Bates numbered 3016 — 3142, HCBS Waiver for Persons with
Disabilities, previously produced by Defendant to Plaintiff's counsel in Sidell v. Maram. The Defendant also cites Parts 676 through 686 of Title 89 of the Illinois Administrative Code as
}r rclfd tr hc rPm'nze
INTERROGATORY NO.5: Please state whether Defendant, either individually, or in conjunction with another person
or entity, determines or approves the cost of home and community based care for children on the Medically Fragile Technology Dependent Children Waiver Program. DEFENDANT'S ANSWER TO INTERROGATORY NO.5:
Defendant objects to Interrogatory No. 5 because it seeks information which is neither relevant to the subject matter involved in this action nor reasonably calculated to lead to the discovery of admissible evidence.
4

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 8 of 47

INTERROGATORY NO.6:

Please specify any policy, rationale or formula, whether written or oral, that Defendant, either individually or in conjunction with some other person or entity, uses, relies on, or

otherwise considers concerning the cost that [sic.] of home and community based care for

children in the Medically Fragile Technology Dependent Children's Waiver Program.

DEFENDANT'S ANSWER TO INTERROGATORY NO.6:

,rTl,nTTnTnrr -flhcC't'lcflf,l

fflru

T1-lt1-rrnQtrr,
TfllflGflTtfllTTT C

rNT1- i

c111fz plr rifcrrnitii whh ic npithpr

pono po ijquosi UAp1 O OI{ oo1qns Jfl1UJ POAIOAU! UI SliD UOiI21 IOU

o o oq

discovery of admissible evidence.

INTERROGATORY NO.7:

With respect to Defendant's Response to Interrogatories 5 and 6, describe any differences

or changes in the application of any program for participants who have reached the age of 21

years who still require a hospital level of care, the policy aridlor rationale for the change, and

nm Q -"-', czthte f1i

t1enhcrn rnimher and job tifle or each nerson having 1cnow1ede of or

information concerning the policy or rationale, or the basis for any difference or change in

application. DEFENDANT'S ANSWER TO INTERROGATORY NO.7:

Defendant objects to Interrogatory No. 7 because it is argumentative, assumes facts not in

evidence, presents an unintelligible and incomplete hypothetical, and seeks information which is neither relevant to the subject matter involved in this action nor reasonably calculated to lead to

the discovery of admissible evidence.

S

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 9 of 47

INTERROGATORY NO.8: State with specificity any differences or variances between the DSCC Waiver (or waiver

program) provided by or through Defendant, and any other home services program offered by or

through Defendant. DEFENDANT'S ANSWER TO INTERROGATORY NO.8:
Defendant objects to Interrogatory No. 8 as being vague, overbroad, and seeking
inlorlilaLloll wineii i uclilici iclevdflL÷L-. U 1ii u1u-J.L-t liialLci iiivuivcu iii 11fl 1AIIU11 11W IatJIIUUIJ
calculated to lead to the discovery of admissible evidence. To the extent Interrogatory No. 8 seeks the differences or variances between the DSCC
Waiver—also known as the MFTD Waiver—(or program) provided by or through HFS, and the HCBS Waiver for Persons with Disabilities, the Defendant responds by specifying the following records, previously produced by the Defendant, pursuant to Rule 3 3(d) of the Federal Rules of

Civil Procedure:

1T

\1T; 1r,ii r 1TT.AAT1TITTTI AL TOA 'i-fl C'lTTnTTtlflrflfflofl 1Cb'flmfpfolfl ,TfilmflTkTTcf-lTrTrcn1fl 'f)lf2l'?fRfl fl1fl rccc i1T fl A flTCrc'in i-cT nnnnnn

snbj unsind o

°N 6 ltJO SJJT1J1rId TS1IJUOL1flpO1disnboj

2. HCBS Waiver for Persons with Disabilities, Documents Bates labeled 3016 -

3142 previously produced pursuant to Request No. 7 of the Plaintiff's First Production Request.

INTERROGATORY NO.9:

List with specificity and {sic] all policies, rationales, formulas or criteria of any kind that Defendant, either alone or in conjunction with any other entity, uses, utilizes, relied on, or

nt1-iprwiu' rnnsitlc'rs in dferminincj the amuint nr mtTIrnts annrcivel —fn—r—h—c-m--—e"—n—r—n—m—m—i—in--i-t-Jv based care of adults with disabilities.

6

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 10 of 47

DEFENDANT'S ANSWER TO INTERROGATORY NO.9:

Defendant objects to Interrogatory No. 9 as being vague, overbroad, and seeking
information which is neither relevant to the subject matter involved in this action nor reasonably

calculated to lead to the discovery of admissible evidence.

To the extent Interrogatory No. 9 requests the policies, rationales, formulas or criteria that

the Defendant, either alone or in conjunction with any other entity, uses, utilizes, relies on, or

IM TrT1c

QFThflTQTUV TTT TTTTTTTTTT'1%T f.kr,rr, mriirif rf fi 1iici u-i,rcv,pd fmr hcm rr cmmiintv

posq O11O JOJ

Pu IUM jiqstp sot

SH3H JoArLpj% 1OJ SUOS1d I4PM

Defendant responds by specifying the following records pursuant to Rule 3 3(d) of the Federal

Rules of Civil Procedure:

1. HCBS Waiver for Persons with Disabilities, Documents Bates labeled 3016 -

3142 previously produced pursuant to Request No. 7 of the Plaintiffs First Production Request;

2. The Determination of Needs ("DON") Instructions Maunual (1/19/04),

rn,fe Tfc C',TTflTTTflflflrT C'fllflfl rTn.,ini-rirhTpnrrpr1 T-TT'SZ flflRSflQ — T-TFS flflR7M

ai) SI °L MOO uuoj

j '(zo-o S11IUmOOU

p1qUTnU SJH LOL800 — SdH

008713;
4.

Instructions for Administering the HSP Needs Assessment, Documents Bates

numbered HFS 008714 — HFS 008719;

5. HSP Needs Assessment Form, Documents Bates numbered HFS 008720 — HFS

008721;

The Defendant also references Title R9 of the Illinois Administrative Code Parts

676, 679, 682 and 684.

7

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 11 of 47

INTERROGATORY NO. 10:

State the full name, job title, address and phone numbers of all persons with knowledge

of the policies formulas or other criteria, identified in response to Interrogatory No. 9.

DEFENDANT'S ANSWER TO INTERROGATORY 10:

Defendant objects to Interrogatory No. 0 as being vague and over-broad.

To the extent Interrogatory No. 10 requests the identity of the individual employed by

TJTT1-'CI

1
IT1IM

IJ1

1RIMI! 1flT1M,-f.lI,T1'S,T-.4Tf÷l 1T1-1.

+41 QVT11TITTI)T -tT,-T1V T'TT1C TT1TT TT1TT1T

TTT

supujo suodso>j o AiowonuT°M '6

:sogiupi

Barbara Ginder, Chief Bureau of Interagency Coordination Department of Healthcare & Family Services 113)'UU\,CJ.' OC'C,-U-,-111QU÷1..I+L Springfield, Illinois 62704

INTERROGATORY NO. 11:

Defendant alleges as an Affirmative Defense, in its Amended Answer and Affirmative

'if Pi.--i-ff rll wri,irl r1r th I 11fbi. fli CClTOTCfT+- 1T1TVTdTTTfl mIll flTT1 TflTTfl T TTTITTT1T c'.mrnincc' 'w**r-f1ly1nlnrir.lni mn,,,rinK,rrr flfl1) LAn nm TTTlnhn flTTI

ii-P"J TUPUOJOU O

rniiu Jo sOTAJS pu suiioid siouim S1

obligated to provide. ." State, with specificity the fact or facts regarding David Grooms and/or

his medical condition that Defendant relied upon for its response, and state the name, and job

title of each person at HFS with knowledge of the basis or rationale for Defendant's contention

that Defendant would be required to "fundamentally alter" if services in order to provide relief to

David Grooms.
1N1)ANT'S ANSWFR TO INTERROGATORY NO. 11:

Defendant objects to Interrogatory No. 11 because the Plaintiff has never articulated the

reasonable accommodation lie seeKs in mis action. ivioreover tne i-'iainun nas not stateci me

8

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 12 of 47
relief sought in his Complaint with any specificity. The prayer for relief merely requests this Court "restore David's pre-age 21 levels of funding for home nursing services." In other parts of the Plaintiff's Complaint, the Plaintiff either seeks an amount of funding equivalent to that he received while participating in the Home and Community Based Services Waiver for Medically Fragile Technology Dependent Children, or funding for "constant monitoring," which could mean 24 hours per day of in-home skilled nursing care. Consequently, any answer Defendant
i1c., 1h1'cJyTL1t1h)cLfWi1A irirl Qvrndltive DEFENDANT'S AMENDED ANSWER TO INTERROGATORY NO. 11:
Defendant incorporates his previous objection to Interrogatory No. 11 because the Plaintiff has never articulated the reasonable accommodation he seeks in this action. Moreover the Plaintiff has not stated the relief sought in his Complaint with any specificity. With those
qualifications, Defendant states: 1. In the Plaintiffs Complaint, the prayer for relief merely requests this Court "restore
flvid'cz rr.-ce 71 1ve1s nffiindin fcw home rnirsin serviceS." Tn other narts of the Plaintiff's
Complaint, the Plaintiff either seeks an amount of funding equivalent to that he received while participating in the Home and Uommumty Based Services Waiver tor Medically Fragile Technology Dependent Children, or funding for "constant monitoring," which could mean 24 hours per day of in-home skilled nursing care. To the extent that David was approved for
participation in the Persons with Disabilities Medicaid Waiver, Defendants reasonably
accommodated him in the following particulars: (a David was not excluded from participation in the Persons with Disabilities
Medicaid Waiver by reason of his disability or by any act or omission of Defendants.
9

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 13 of 47

David is currently enrolled in the Persons with Disabilities Medicaid Waiver and, in fact,

is receiving services in this Waiver program that include in-home nursing services.

(b) Defendants reasonably accommodated David in the Persons with Disabilities

Medicaid Waiver Program by extending an exceptional care rate to him. In the Persons

with Disabilities Medicaid Waiver, HFS expressly represented to the federal government

that it "will refuse to offer home and community-based services to any person for whom

,'fr1 IL L,II auiiauiy 1-U...-

+hf t1- cf e'.f hrm rr pcmimrntr_hpd

furnished to that individual would exceed the cost of a level of care referred to in item 2

of this request." (Persons with Disabilities Medicaid Waiver at Paragraph 8). In item 2

of the Persons with Disabilities Medicaid Waiver, HFS only requested a waiver to

provide home and community-based services to individuals who would need a nursing

home level of care. Under the express terms of the Waiver, Defendants cannot expend
'--b "J rr any more money on services to David than would be incurred if he were residing in a
nrirrl f'i1itv Pnr the fvnir1 nrtieinnt in the Persons with Disabilities Medicaid
Waiver, the maximum monthly benefits he or she will receive is determined by referring to the Service Cost Maximum, or SCM, that corresponds to the Determination of Need,
or DON, score that applicant received as part of the eligibility process. State law sets
forth an SCM that corresponds to the DON score. 89 I1l.Admin.Code § 679.50. HFS

recognized that individuals with certain disabling conditions, if residing in a nursing

facility, would cost the facility more to treat or care for than the basic Medicaid nursing

home er diem would reimburse. HFS created a now-defunct Exceptional Care Program for nursing facilities. 305 ILCS 515-5.8a; 89 Il1.Admin.Code § 140.569. Through the
,r—x' cepuonai tare rrogram, a iiuiiuig 1w.anLy uLaI11L 1L1I1U Lu 1c11uc1 cpiuiiai

10

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 14 of 47

to persons in approximately thirteen categories, such as HIV-positive, morbidly obese,
medically complex, ventilator-dependent, etc. Prior to the current nursing home
reimbursement methodology that is based on data contained on the resident's Minimum

Data Set, or "MDS," HFS calculated and paid an exceptional care rate to the nursing facility that was above the basic Medicaid per diem to render care to those persons in the

I categories described in the immediately preceding sentence. tte 1w t SQ Ill Admin rode sJ -—-—7fl'(—c ,a,uthorizes DHS to- extend a rate—
up to the exceptional care rate that HFS set for the nursing facilities participating in the Exceptional Care Program, to a participant in the Persons with Disabilities Medicaid

Waiver Program whose medical condition corresponds to one of the conditions for which

HFS would have paid an exceptional care rate if that person were in the nursing home.

DHS fmds the nursing facility in closest proximity to the applicant's residence that is

qualified to render the care that the applicant would need, and extends a rate up to the rate

r - thit

1-IFS

hcul

naid

to

t-h---a—t-

nursing

ho- me

o- n

behalf

of

the

similarly .1

situated

nursing

home

residentto the Persons with Disabilities Medicaid Waiver applicant. An exceptional care

rate was extended to David.

(d) David has accepted the reasonable accommodation of the exceptional care

rate and is participating in the Persons with Disabilities Medicaid Waiver program.

2. If the reasonable accommodation that Plaintiff seeks is an amount of money to

allow him to maintain the level of services that he had under the MFTD Waiver for which he is

no loner eliaible, (or, specifically, to receive $17,900.00 per month instead of the approximately

$9,289.46 per month exceptional care rate he would have received under the Persons with

T1TIWIP1(T flfl1flTAT AA TV A

+b - +h T /flTTV WI TT1 TTflT11T'TTT TC TV ITIV1 T'Q A Q"T TTT TT1 AA TV A TCTCITTIV

11

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 15 of 47

that the program does not now offer, then that relief would not constitute a reasonable

accommodation because under the law as set forth in Alexander v. Choate, 469 U.s. 287 (1985)

and Wisconsin Community Services, Inc. v. City of Milwaukee, 465 F.3d 737 (7 Cir. 2006), these accommodations are not necessary, reasonable or grounded in any independent basis in

Title II of the ADA.

(a) The reasonable accominodation David seeks is not necessary. Neither the

0 eo1fc, r111r f +h fiir1rifc. 1TflT1D111TflPTTY\J 1A-1,+1 TflTI 'IITi I'AITTT'LTCTIV'T IAA TT1 TTTfl1CTfT C'T1 'VATcf1 TTT11l % VTT'T'T 1TT ('1 fTTrrTTT

Xui jo si suiiioid ioj pIAQ sniq sjuq q

soun oq UflOUI JO

money for in-home private duty nursing services, were not denied to him by reason of his

disabilities. David does not qualify for $17,900.00 per month worth of in-home private

duty nursing (or more) because of qualities that David shares with all other Medicaid recipients and applicants. All the factors set forth below are qualities that David shares

with all Medicaid recipients and applicants, as follows:
(i\ Nc'. T'.Aedic'r1 nrnoi-im nnritd liv T-TFS p.vr ffc'.rdid flvid nr cinvnn

else, 24 hours per day of in-home private duty registered nursing services on a

regular or non-emergency basis. (ii) Private duty nursing services are an optional service under federal

Medicaid law, 42 U.S.C. § 1396a(a)(1O)(A), 1396d(a)(8,) and under the Persons with Disabilities Medicaid Waiver. (Waiver at Paragraph 11). Private duty nursing services are not covered under Illinois' Title XIX State Medicaid Plan. No Medicaid-elithble oerson aualifies to receive such services at any situs. Whether the State of Illinois covers an "optional" Medicaid service is a policy
rc1 juagmern- corrirr._u.i_i_e_u] -—101_i_nc u_i_s--e_r-_e-u_on 01 iate oiiiciais anu br wn.i_e1n_ mere is no

12

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 16 of 47
right of judicial review. DaimlerChrysler Corp. V. Cuno, U.S. , 126 S. Ct. 1854, 1863 (quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (opinion of Kennedy, J.)).
(iii) No participant in the Persons with Disabilities Medicaid Waiver qualifies to receive private duty nursing services because they are not part of the Persons with Disabilities Medicaid Waiver or Illinois' Title XIX State Medicaid
D1
(iv) David, an individual over the age of 21, is no longer eligible for EPSDT, 42 U.S.C. § 1396a(a)(43); 1396d(r) and, consequently, may not now
receive services that are not covered under the Stat&s Medicaid Plan. (v) No one qualifies for the MFTD Waiver after he or she has attained
the age of 21. David is over 21 years of age and is no longer eligible for MFTD Waiver and may not now receive any services through the MFTD Waiver.
-I-— (vi To the extent HFS's c1inica nrofessionals were r—eview:.—i—n—g_rn-—ia—n—s of
care for David before he turned 21 arid participated in the MFTD Waiver, they were not reviewing medical need tor waiver' services. Kather, HFS 'S clinical experts were entitled to make an independent determination for the purposes of the EPSDT program that services prescribed for David that were not covered under Illinois' Title XIX Medicaid Plan were medically necessary. Miller by Miller v. Whitburn, 10 F.3d 1315 (7th Cir. 1993). Services in the Persons with Disabilities Medicaid Waiver, as required by federal law at 42 U.S.C. 1396n(c), are based on medical need only insofar as they are up to or less than the Service
LOSL 1V1LMIUUU1 01 A pL1Uiii 1i1L app11u1 +LU- ÷uI1c ululvluual.KTIN, U 1V1L
13

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 17 of 47

in excess of the Waiver Program's cost caps are given on the basis of "medical

need." (b) The accommodation David seeks is not reasonable. The court need not reach

this issue because it must conclude that the accommodationlmodification David seeks is

not necessary.

(i) If the court were to reach the issue of reasonableness, it would

mi-yf/rncAf'trrn riible Firt fhf c TflTTflflflflfl +b itYlTi flTT1 nrnr,-nnnyrrrrrnnevr,nryrrrnr.r.,,yryn 'nrnm,.cyyQhnt fly nn,,r-f, —,,-,,-,,-.

. -.- C.,-,

ip uoiijipoui JJIU!Id sjs o SUOSJd qiJM

P°PN

is not necessary to avoid discrimination to David on the basis of disability. 42

U.S.C. § 1213 1(2); 28 C.F.R. §35.130(b)(7). ii. Second, Defendants also contend that the accommodationlmodification

David seeks would fundamentally alter the nature of the Persons with Disabilities Medicaid Waiver. If Defendants were to provide a benefit in excess of existing
hnm nd nmmiinitv waiver benefit levels Defendants wirnid he reauired to

extend the same benefit to all other persons. The benefit would have to be

extended to all participants in the Persons with Disabilities Medicaid Waiver

Program (and, presumably, all other programs operated under the umbrella of the Home and Community-Based Services Waiver), and to certain current residents of nursing facilities. Defendants believe that the relief Plaintiff seeks would
fundamentally alter the Persons with Disabilities Medicaid Waiver in 1) a

rorammatic sense and. by the operation of the programmatic chances made.
would 2) require expenditures of public funds that are not reasonable.

14

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 18 of 47

(A) The programmatic changes that frmndamentally alter the

Persons with Disabilities Medicaid Waiver are as follows:

(1) Granting Plaintiff the relief he wants requires Defendants to ignore or violate the Waiver's cost caps arid the

express representation to the federal government for approval of

the Waiver at Paragraph 8, that the State will refuse to offer

fli eTflCc'mA CmflfclT' tn

ncsrc.nn c' C'TTIThCTflI4

fnlCil'f,lTnrAoAnfliTnTTflTnTn_TnTTa

oTn'rCx,'-%mTAa

mOnIOeftlcfl

xfl,TnflifilAi Arl

falfvlfmlflnUaf,ll

ftllitai

so jo uuio oj pip uosid U! utsmu ouioq sisqdrn)

added). (2) Granting Plaintiff the relief he wants would require
Defendants to ignore or violate the "cost-neutrality" requirements

of the federal Medicaid statute, at 42 U.S.C. § 1396n(c)(2)(D), and
the assurances given to the federal government about cost iieutrlitv in the \i\1er dcriimnt itcelft Prirrnh 1 Ai'e\ intl (YF.J\.
(3) Granting Plaintiff the relief he wants requires
Defendants to ignore the portion of the Waiver that "waived" 42

U.S.C. § 1396a(a)(1O)(B), at Paragraph 10 of the Waiver
document, or to have Defendants rewrite the Waiver in such a way

as to eliminate the request that the "comparability" portion of the

federal Medicaid law be "waived." Plaintiff wants waiver services

to be measured by the "amount. scone and duration" concents

contained in Section 13 96a(a)( 1 O)(B).

15

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 19 of 47
(4) Granting Plaintiff the relief he wants requires the Defendant to rewrite Paragraph 2 of the Waiver to choose a "level of care" either on an individualized basis for David, or to choose a
"level of care" that would afford all waiver participants a
potentially larger sum of money on a monthly basis. The choice of the level of care is an option given to the State under 42 U.S.C. § flQn(c nd there jg n right nfini1icia review in hnw the Sthte chose to exercise that discretion. DaimlerChrysler, Id.
(5) Granting Plaintiff the relief he wants requires
Defendants to request a service for inclusion in the Waiver, i.e., "private duty nursing" that is optional for the State to include
—-- 0 according to Paragraph 11 of the Waiver document. The choice of
the services to include in the Waiver is an option given to the State under 4-—2—IJ--S—.-C----S l396n(c and there is no right of judicial review
in how the State chose to exercise that discretion.
DaimlerC'hrysler, Ic!.
(6) Granting Plaintiff the relief he seeks requires
impermissibly using another Act of Congress (i.e., the ADA or the Rehabilitation Act) or a federal regulation (i.e., the integration mandate) to change the intent of Congress respecting the operation of 42 U.S.C. § 1396 et seq. Nothing in the ADA, Rehabilitation
Act or any federal regulation with respect to those civil rights
16

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 20 of 47

remedies evinces Congress' intent to allow the Medicaid program

to be rewritten in the manner Plaintiff seeks.

(B) The relief Plaintiff seeks would fundamentally alter the

Medicaid program by causing costs to be incurred that are not reasonable,

as follows:

(1) Defendants incorporate the expert witness report of
T-1 r I JU.L J-'. 1YIL11 1IJ¼.,1, ILL TLV..IiLfLhI11I 3 LJJ!.
(2) Some nursing home residents may be able to live outside a nursing home if substantially more hours of one-on-one
nursing care were provided in a private home. Nursing homes
provide quality care in an efficient manner by capitalizing on

economies of scale. That is, one nurse can care for several patients

in a centralized setting. Shifting patients from residential settings

tr I-iwnp

tttiic

ml'l

h'iip

pvpri A

mrIi tirnu
C'Trr.r,nr.rrrlrTTr

fYrflYr

,,yn

iT'1ifli#r%r,TiiTt,

ustss otpow

uxi2oid pu oiinboi uouipunj ioj uoi Jo

the program.

(3) More nurses would be required to provide home

care as the care model becomes individualized.

(4) This would exacerbate the current nurse shortage.

Increased demand combined with short supply would drive up

wanes. Waaes would not stabilize until more nurses entered the market. This would likely take several years.

17

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 21 of 47

(5) Higher wages would drive up the cost of nursing home and private duty nursing care.
(6) Lower occupancy and higher wages would force some nursing homes to close. Nursing homes are the only option for some individuals. The consolidation would reduce access to

this care in some areas.

1'7\

ittfl1QCl C'flflfl r,rf 1!ThTT Irrtvw ihf1v flTflT fl#. TflTTIflTTAA th'TTr1nIiTrTrfnlTtTflrflrIgrTQTTCir,Tlfnl,T

ouxoq supisai A1 aAUd UTSflO qp13A1 O 'U1fl

to leave the facility. If finding or making that housing available is

held to be the obligation of the State of Illinois, the fiscal pressures

on the State increase.
(8) If participants in the Persons with Disabilities Medicaid Waiver program are deemed to be entitled to receive
'"- uhctrn,tii1 hniirs 1n—r-dciv nfin-hnme n1r-iv' cite diftv niirzinc cervicp.c
then nursing facility residents with similar medical conditions
should similarly be able to expect and receive increased levels of

registered nursing staffing at the nursing facilities. This, in turn, increases the pressures on the nursing profession, drives up the

costs of the nursing homes and potentially subjects the Illinois Medicaid program to added expenditures. (C) The manner in which the relief Plaintiff seeks would fundamentally alter the services currently available to participants in the
-..1 1T. 1re-r-s-t-i-i-i"s-w.-i1ll.!..ijisauuLi1iie--s-l.vlcuiedlu VY aivci piogiiii diiU ULIICI p1:ogII.uIs

18

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 22 of 47

under the umbrella of the Home and Community-Based Services Waiver)

is as follows:

It is not cost efficient for Defendant to provide Medicaid-eligible

individuals with substantial hours per day in-home private duty nursing services. The current medical assistance program in Illinois services over

2 million people each month. This consists of children, parents, pregnant

lilrl, An'TTnTrtfl nrf1lt-O1Tdfl rrr1.frltl-1,fnc12 niir-ytdn TflTIT• T}ip rnrrcrit rrrcTrqm CtTlPrltPQ it

Tinu iso jo 1Ao 01$ uoijjiq

noqp uqsnfp ioj 41 pJ1Mdn

pressure on wages, the shift of oniy 10% of the current nursing home

population to home care receiving benefits equivalent to the average

Medically Fragile-Technology Dependent (MFTD) waiver child would cost an additional $856 million. That is more than the $578 million spent

on all expanded eligible populations in FY 2005. In addition, it would
ct nnther SMS millicrn if 10% of the individiii1s in the T-Torne Services

Program were to begin receiving benefits equivalent to David Grooms

during the last year in the MF1D Medicaid Waiver. 'I'his combined $1.52

billion shift is almost equal to the total amount of $1.8 billion spent on all children in the medical assistance program. Such a large shift in costs

would force the State to fundamentally alter the current program from one that takes care of a mix of uninsured families, disabled, and elderly to one that only applies to the neediest families and a small population of the

most severely ill.

19

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 23 of 47

(c) There is no independent basis on which the court can award the
accommodationlmodification the Plaintiff seeks. David has no present "right" to receive

or "legally protected interest" in receiving any Medicaid-funded services in the

community (i. e., in his parents' home), unless he qualifies for a home and communitybased services Medicaid waiver administered by Defendant pursuant to 42 U.S.C. §

1396n(c). Medicaid-funded waiver programs are an opportunity or capability for

1 t 'T1 TTTA1"T

TTTñc

TQ Q'ITA

ITT

i'T-bTe1

cnrnrniintcr
C1TTT11T11TT1rV

+n

n1rTaToaAn'T+dnT,Tln(TnC-cTnToTmnTn,

(1

n lnnrr_tcs-rrn mm
TTTT1_9TT(T

qj 'IT°J UOUOO J(3)u96 uo -ptipj, ppu cpunioddo ioj piAu o AtOJ

services in the community is through the Persons with Disabilities Medicaid Waiver.

This Waiver operates under the authority of 42 U.S.C. § 1396n(c). The United States Department of Health and Human Services approved the Persons with Disabilities

Medicaid Waiver under the express terms and representations and assurances set forth in

the Waiver document. The Persons with Disabilities Medicaid Waiver provides home

nrrn ,ri-rrnrn,rrinir1rncn-r- _lcl A

fr f iii'h n, ynrry(,Trfll1flf1lYlcA1LA\Cxn1TTl,rflll-lfnl rrln-,frr th rrfl A YrflYflr Tfl

T.'%C' A

PIflOM aunboi oiio ui 'a u!smU 1ll!°J

In order to enroll in the Persons with Disabilities Medicaid Waiver, the individual

must, among other things, be eligible for Medicaid, apply for services through the Home Services Program, have a severe disability which is expected to last at least twelve

months, be an individual who is in need of long-term care, obtain certification from a

physician that the individual is in need of long-term care and that this care can be safely

and adeniiatelv he nF—ro-vided in the individuaFs home as nrovid-e—d in the servi-ce nian developed for the individual, and not require in-home services that are expected to cost more man wnat tne state would pay ror institutionai care ror persons similarly situatea.

20

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 24 of 47

A participant in the Persons with Disabilities Medicaid Waiver can buy in-home

nursing services, but under the program limitations, they are regarded as skilled nursing
services; private duty nursing services are not available under the Persons with

Disabilities Medicaid Waiver.

If David chooses not to participate in the Persons with Disabilities Medicaid

b'' --'' Waiver, there is no other program or option administered by Defendants and funded by

ir1 thrnuch

'he rn rereve in-hnmp nnrciric, cprg-' 1+' P1iitf+ e

claiming that Defendants must create new programs to care for him, that claim is not cognizable in the federal court. DaimlerChrysler Corp. v. Cuno, U.S. , 126 S. Ct. 1854 (2006); Olmstead v. L.C., 527 U.S. 581 (1999). The State need not 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.
1 - Olmstead v. L.C., 527 U.s. 581, 612-13 (1999) (Kennedy, J. concurring). The Olmstead
Court stated that the "states must adhere to the ADA's nondiscrimination renuirement
with regard to the services they in fact provide." Olmstead, 527 U.S. at 603 n.14

(emphasis supplied).
(C) Barbara Ginder Bureau Chief - HFS Bureau of Inter-Agency Coordination 1320 S. Second S•, 2nd Fl Springfield, IL 62704
Ms. Ginder has information regarding parts 1 - 2(b)(ii)(A)(1-6) of
Defendant's Amended Response to Interrogatory No. 11.

21

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 25 of 47

Matthew Werner

Director's Advisor on Healthcare Finance - HFS

201 South Grand Ave. East

Springfield, IL 62763

supuopjo ioonouj .O jj )(\'r\ ppuury suodsoj o -.-+ )uI\(D\() Q\ T It'd K.-
TTAT

AA TTTT cPu TTflr1VTTTTflTTTT

TTTflTV 1 (CT\(TT'(fl'\7

(O_ TTTt' I—'\ITTVn'\7

S (a)

'60t8001 8OS — 't7tE SdH ooooc — SdH 'csooc SHG 100000 — SHEL

000253, DHS 003671 DHS 003758; Expert Witness Report of Todd D. Menenberg dated
?L ivulieli i1C 'L)1UAU'7I.NNtlT. AVTJU-rUAV(\IV\1I —KI NTCAX\VTJi'Jicncc. XTA\T 1fl1d2 _1'JAV IWu.l2i.',7,Q, • Pcfl flflflflC1 -

RSC 000039; HFS 009069 — HFS 009597; HFS 3011460 — HFS 3014068; and MW 500042 —

MW 500053. INTERROGATORY NO. 12:
Defendant denied, in response to paragraph three of Plaintiff's Complaint, that it

approved "extensive nursing services plan for David based on its determination that the services

were medically necessary and that the cost of the care David needed to remain at home was less
TTflTT1 +fl1Tf-l cICccfl,ffl Trffl fhUcn. irv.tcfl', m flip hrzniti1 rr nther incztitntinncd p.ttincj" P1ci. czthti whthr
upuojo SI ui1cuop SI o1s] poAoJdd uismu 'soDliugs JO 1O1JO4M 1 S1S1P 11PM
basis of the determination that is stated. If the latter, please state with specificity the basis of any

approval by HFS or any other state agency. DEFENDANT'S ANSWER TO INTERROGATORY NO. 12:
The Defendant objects to Interrogatory No. 12 as written because it is argumentative,

misstates facts, assumes facts not in evidence, and presents a false dichotomy.
Tr fh tent Tnterrnthrv Nn 12 ceelcs the hsis for the Deferidnt's deni1 of the
allegations contained in Paragraph 3 of the Plaintiff's Complaint, the Defendant denied the

allegations contained in 1'aragrapfl i in tneir entirety because me aiiegations uia not contain an

22

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 26 of 47

accurate statement of the programs, procedures, Defendant's actions, or bases for the
Defendant's actions. Further, due to the extent of the inaccuracies pled in Paragraph 3, there were no averments that the Defendant could admit pursuant to Rule 8 of the Federal Rules of Civil Procedure.

INTERROGATORy NO. 13:

r-;-i w i Please state whether there was one or more Home Services Program Service plans in

ç,,.

uuitig AJUU. Ii SO, piease- iror eacn plan Stat-e:

(a) Type of service provided

(b) Total hours per month

(c) The rate for each service provided

(d) The subtotal for each service provided

(e) The total monthly or estimated service cost

DEFENDANT'S ANSWER TO INTERROGATORy NO.13

'I'b VVCL. 11JL CL jjJjjjç

ritigiwiiCe' rvice nan r1 — -- in existence br David (irooms

during 2000.

INTERROGATORY NO. 14:

Please state whether there was one or more Home Services Program Service plans in existence for David Grooms during 2001. If so, please for each plan state:

(a) Type of service provided

(b) Total hours per month

(kr1'

The rcfe fnr erii Qer,i JJflJ V 1¼4'/¼.1

(d) The subtotal for each service provided

(e) Ihe total monthly or estimated service cost

23

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 27 of 47

DEFENDANT'S ANSWER TO INTERROGATORY NO. 14:

There was not a Home Service Program Service Plan in existence for David Grooms during 2001.

INTERROGATORY NO. 15:

Please state whether there was one or more Home Services Program Service n1nc in

existence for David Grooms during 2002. If so, please for each plan state:

(ci'\

T..xJ,nFc' nJt1' onrxV,1naIJ1%.JVIUU

(b) Total hours per month

(c) The rate for each service provided

(d) The subtotal for each service provided

(e) The total monthly or estimated service cost

DEFENDANT'S ANSWER TO INTERROGATORY NO. 15:

There was not a Home Service Program Service Plan in existence for David Grooms
(lllrincr 7(1(Y)

INTERROGATORY NO. 16:

Please state whether there was one or more Home Services Program Service plans in existence for David Grooms during 2003. If so, please for each plans state:
(a) Type of service provided (b) Total hours per month (c) The rate for each service provided (d' The subtotal for each servirp nrrniidd

(e) The total monthly or estimated service cost

24

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 28 of 47
DEFENDANT'S ANSWER TO INTERROGATORY NO. 16: Ihere was not a Home Service Program Service Plan in existence for David Grooms
during 2003. INTERROGATORY NO. 17:
Please state whether there was one or more Home Services Program Service nians in existence for David Grooms during 2004. If so, please for each plan state:
(i\ Tvie rf r',i-p,-I rr,rl,l A•-'••.'•..• J;JI•J V1t1L¼L
(b) Total hours per month (c) The rate for each service provided (d) The subtotal for each service provided (e) The total monthly or estimated service cost DEFENDANT'S ANSWER TO INTERROGATORY NO. 17: There was not a Home Service Program Service Plan in existence for David Grooms during 2004 INTERROGATORY NO. 18: Please state whether there was one or more Home Services Program Service plans in existence for David Grooms during 2005. If so, please for each plan state: (a) Type of service provided (b) Total hours per month (c) The rate for each service provided (d) The subtotal for each service nrovided (e) The total monthly or estimated service cost
25

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 29 of 47

DEFENDANT'S ANSWER TO INTERROGATORY NO. 18:

Ihe Defendant responds to Interrogatory No. 18 by specifying the following records pursuant to Rule 33(d) of the Federal Rules of Civil Procedure:

1. Home Services Program Service Plan of January 1, 2005, Document Bates
numbered HFS 300428;
2. Home Services Program Service Plan of September 24, 2005, Documents Bates
numbered T-T—FS flfl'4S — J-TT"Z nncL1f-c

3. Home Services Program Service Plan of October 11, 2005, Documents Bates
numbered HFS 300543 — HFS 300544. INTERROGATORY NO. 19:

State whether there was an addendum to, or reassessment of David Grooms' Home Services Program Plan after David's 21st birthday. If so, please state with specificity any
change(s), modification(s), addendum(s) to the plan and the basis therefore.
DEFEN- -D— —A---N- —T—'—S—A— -NSWfl TI) INTRPocA,. ITcv 1S..iTi 1C5 •170.. To the extent Interrogatory No. 19 seeks any addendums or reassessments of the
Y1aintitts Home Services Program Service P1ai which occurred after his 2l birthday, the
Defendant responds to Interrogatory No. 19 by specifying the following records pursuant to Rule 33(d) of the Federal Rules of Civil Procedure:

1. Home Services Program Service Plan of October 11, 2005, Documents Bates

numbered HFS 300543 —HFS 300544;

2. Home Services Pro-g—ra--m--- Service P1n nf Tcrnirnr, 'M,, ')flfli numbered HFS 300581 —HFS 300582;

-.-.÷-. D,-..

26

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 30 of 47

3. Home Services Program Service Plan of April 26, 2006, Documents Bates

—iiuinoere1cTiTiV-n'fl

flfl,'——
3UU(Jb

—

I-iFS

— — —

-

300567;

To the extent Interrogatory No. 19 seeks the basis for any change(s), modification(s), addendum(s) to the Plaintiff's Home Services Program Service Plans after his 21st birthday, the
Home Services Program is operated by the Illinois Department of Human Serviee inr1 th
Defendant has no independent knowledge of the basis forany such change(s), modification(s), or
flL addendum(s to the T-Tüme Siic P5ri1-r1nL,-1, 1 Ivj,e runis o1in-er man Wtiat can be found in
David Grooms's DRS HSP case file. Thus, the Defendant responds to the portion of
Interrogatory No. 19 seeking the basis for any change(s), modification(s), addendum(s) to the
Plaintiffs Home Services Program Service Plans after his 21st birthday by specifying Documents Bates numbered HFS 300416 —HFS 300785 pursuant to Rule 33(d) of the Federal Rules of Civil Procedure.

INTERROGATORy NO. 20:
--- State whether there is a reauirement thcit the Mer1ci,1 a1vc1 rLugiwn, as appiieci to
David Grooms, be administered so that the cost or average cost of providing caxe in the home
anwor commumty not exceed the cost of average cost of his care in ahospital andlor institution. If so, state the basis of the requirement, including inyour answer any applicable state or federal policies, rules, regulations or guidelines.

DEFENDANT'S ANSWER TO INTERROGATORY NO. 20:

The Defendant objects to Interrogatory No. 20 as being vague and ambiguous to the

extent

it

fails

to

specify

the

"Medicaid

Waiver

Program" -

fn

which

it

rPn1PQfQ

'•

LLL',.11111L.

I

11

fh -L i Defendant further objects to Interrogatory No. 20 as being vague and ambiguous to the extent it

1iQO

WIILLUUL IU1L11tJ. ue-n- nition.

27

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 31 of 47

INTERROGATORY NO. 21:

State whether there is an existing waiver program for adults with disabilities. If so,
describe all financial or other limitations or restrictions onparticipation, including a) dollar limits for care and b) geographic restrictions.

DEFENDANT'S ANSWER TO INTERROGATORy NO. 21:

rncl fI , A f The Home and Community Based Services Waiver for Persons with Disabilitiescurrently

exists nd is limited tr dih1ed rrQcrQ

L11 ii uU ai 111 uiiie 01 applic- ation. io me

extent Interrogatory No. 21 requests a description of all financial or other limitations or

restrictions on participation, the Defendant responds to Interrogatory No. 21 by specifying the

HCBS Waiver for Persons with Disabilities, Documents Bates numbered 3016 — 3142, pursuant to Rule 3 3(d) of the Federal Rules of Civil Procedure. The Defendant also generally cites 89 Ill.

Admin. Code, Parts 676 — 686 to the extent the regulations are applicable to the portion of the

-. 1h1 Home Services Program covered by the HCBS Waiver for Persons with Disabilities. To the

extent Drovisions in S9 T11 Admin rnt-le PcrtQ A'7A —

ypI1au1 +- +U1IL U1LIO1IS 01 me

Home Services Program which relate to other HCBS waivers included in the Home Services

I-rogram----me HU3S Waiver tor Persons with HIV/AIDS and the HCBS Waiver for Individuals

with Brain Injury—such provisions are irrelevant to the present case. (a) To the extent Interrogatory No. 21 further seeks a response as to dollar limits for
care under the HCBS Waiver for Persons with Disabilities, the waiver requires the State to refuse

to offer home and community-based services to any person for whom it can be reasonably be ex—pected that the cost of home or community-based s-e- —rv- —ices fur—n—i—sh——ed th thit m——d-&,..mt V sdL.14t1uVY-,J112,1-11.2 exceed the cost of a nursing facility level of care. The Defendant further cites 89 Iii. Admin. L'UU DI O.+I.L, 'U7CIYOU'O.L..U..1-1U OUOA'-f.

28

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 32 of 47

(b) To the extent Interrogatory No. 21 further seeks a response as to geographic restrictions tor care under the HCBS Waiver for Persons with Disabilities, the State has not requested a waiver of the "statewideness" requirements set forth in Title XIX. The Defendant
further cites 89 Iii. Admin. Code Parts 676, 682 and 684.

INTERROGATORY NO. 22:

nrl , State whether there is currently in existence a waiver program for adults with disabilities

who have- excenfinncd medi1

ilic

----i-•-
appiicauon

process

and

d-escri-be

any

funding or other limitations that are applicable to theprogram.

DEIEfN1)AN'j"S ANSWER TO INTERROGATORy NO. 22:

To the extent Interrogatory No. 22 requests the Defendant state whether any of its existing Home and Community Based Services Waivers, which have been approved by the
Secretary of HHS, serve adults who have "exceptional medical needs," the Defendant objects to Interrogatory No. 22 as being vague and argumentative.
To the extent lnterrcwafnrv Nn 'Y) rniifc fI- fl-L..÷ aie w1neiin-er mere is an
existing HCBS waiver, requiring approval by the Secretary of HHS pursuant to 42 U.S.C. § 1i'bnc), speciticaily entitled as a "Home and Community Based Services Waiver for Adults

who have Exceptional Medical Needs," no such waiver currently exists in Illinois.

However, to the extent an exceptional care rate may be utilized under the Home Services

Program's implementation of the HCBS Waiver for Persons with Disabilities, the Home Services

Program may be understood to serve adults with "exceptional" medical needs. The HCBS

Waiver for Persons with Disabilities that ovems the oneration of the T-TSP PvrrQQh7

that the State will not expend any more money on services to individuals in the waiver than 11 uiee peiuiis were resiciing in nursing tacilities. For the typical participant

29

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 33 of 47

in HSP, the maximum monthly benefits he or she will receive is determined by referring to the

service Lost Maximum, or SCM, that corresponds to the Determinationof Need, or DON, score
that applicant received as part ofthe HSP eligibility process. State law sets forth an SCM that

corresponds to the DON score. 89 Ill.Admin.Code § 679.50. HFS recognized that individuals

with certain disabling conditions, if residing in a nursing facilit-y-, would -co-s-t--th-e--fc-i—rili-t-vJm-'-c,r fr

treat or care for than the basic Medicaidper diem would reimburse. HFS created art Exceptional

C-are Prorm fcr nurQina f-1he 'fl TT (Q

oon1T1il1Aum1n.uoae 14U.69. 1hrough

the Exceptional Care Program, a nursing facility may become certified to render exceptional care

to persons in approximately seventeen categories, such as HIV-positive, morbidly obese,

medically complex, ventilator-dependent, etc. HFS calculates and pays an exceptional care rate

to the nursing facility that is above the basic Medicaidper diem to render care to those persons in

the categories described in the sentence immediately preceding.

State law at 89 l11.Admiri.Code § 682.520(c), authorizes the Illinois Department of

Human Services to extend i rnte un th the ew'ei-fr'ric1

-+ r+ ul-y tieicHudiiL ior mi- e- nursing

facilities participating in the Exceptional Care Program, to a participant in the Home Services

k'rogram whose medical condition corresponds to one of the conditions for which HFS would

pay an exceptional care rate if that person were in the nursing home. The Department of Human

Services finds the nursing facility in closest proximity to the HSP applicant's residence that is qualified to render the care that the applicant would need, and extends a rate up to the rate that HFS pays to that nursing home on behalf of the similarly situated nursing home resident to the HSP applicant.

30

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 34 of 47
INTERROGATORy NO. 23: tate wnemer tINS or another agency or entity undertook any study of, or made any
finding(s) or determination(s) during 2005 concerning the cost effectiveness of, or medical necessity for, the Home Services Program Service Plan for David Grooms.
If so, identify each individual that participated in thestudy or determination nrnvilinu the position or title of each individual.
DEFEND- ANT- _'S ANSWFR Tfl TNTi''Pi 1A1Ji1Tj-. 13;
All actions relating to the development of David Grooms's Home Services Program
service !-'!ans dunng 2005 were taken by the IDHS, Division of RehabilitationServices and the
Defendant lacks specific knowledge over any such actions taken by the Division of
Rehabilitation services, other that what is documented in David Grooms's DRS HSP case file. Thus, Defendant responds to Interrogatory No. 23 by specifying the documents contained in David Grooms's DRS HSP Case file, Documents Bates numbered HFS 300416 — HFS 300785, pursuant to Rule 33(d of the Federal Rules cfrivil Prr'idrir,r DATED: April 27, 2007
Respectfully submitted,
fAffr iv
T#X3oN
JOHN E. HIJSTON #3 128039 CHRISTOPHER GANGE #6255970
Assistant Attorneys General
160 N LaS1e St Suite N1 flflfl
Chicago, IL 60601 (312) 793-2380
31

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 35 of 47

STATE OF ILLINOIS

)

)

ss

'.,j- LAUKJTtL(AVIJ1N )

VERIFICATION

I, Barbara Ginder, Chief, Bureau of Healthcare and Family Services, being duly

Inter-Agency Coordination, Illinois Department sworn upon oath, depose and state under penalty

of of

pP2e(1brj).u(;ir-i)y4(Aa.')s(-1pc-r:6o..)v,aiaCdnced''d._aoLfbrfyi1lrnm2te8trhrUoa.gtSas.atCoid.nr1ees7s,4p6oA-ntmsheaesnt,adIfehedatvrRueeesraepnaoddnsctehoertroDecJetnftteoenrtdrhoaegnabt'tesosArtyomNfemon.yde1kd1n,oAwpnalserwdtsegre1to-

j/ fr4' j\i1) ,QJ tI?

Dated: &kt 27 2c7

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 36 of 47

STATE OF ILLINOIS

)

SS

COUNTY OF SANGAMON)

VERIFICATION

I, Matthew Werner, the Director's Advisor on Healthcare Finance, Illinois Department of

Healthcare perjury as

and Family Services, being duly sworn upon oath, depose and provided-by 28 U.S.C. 1746 that I hav- e- read—-t—h-e— Defendnt'

sAtartne nunedher4pALeLLtnOiamVVlt'_yr,A

of
U..)

Plaintiff's First Set of Interrogatories, Amended Response to Interrogatory No. 11, parts

2(b)(ii)(B)(2-8) and 2(b)(ii)(C) and affirm that said responses are true and correct to the best of

my knowledge.

/2

Dated:

OO7

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 37 of 47

CERTIFICATE OF SERVICE

2007, huetcinasutsoepdliaercSo.p(ylaonfgteh,eanDAEFssEisNtaDnAt ANtTto'SrnAeyMGEeNneDraElD, hAerNebSyWceErRtifTieOs PthLaAt oInNATpIrFilF2'S7,

1vo. FIRST SET OF INTERROGATORJES
coun-se—l —of.-r-e—rrr'-d--1 t th fnL.fJlScJJ 1r1n1c5r U.LJ1

TO

DEFENDANT

to

be

served

on

the

Plaintiff's

Byron L. Mason Karen I. Ward EQUIP FOR EQUALITY, INC. 20 North Michigan Ave., Suite 300 Chicago, Illinois 60602
By hand-delivery, before the hour of 5:00 PM.

(7' (//Y

CHRTSTOIER S. GANGE
Assistant Attorney General

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 38 of 47
EXHIBIT B

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 39 of 47

Analysis for Grooms vs. Maram
Prepared by Matthew Werner, Director's Advisor on HealthcareFinance

Purpose of Analysis:
This analysis is intended to illustrate the potential maximum imnact if individiik wh
/rneTuqreusciihnrengoscloaomrgeyeeDlqeuevipevelanoldefnennt uttorwstiahniagvtecwra(hrMeichFhaTDdDaavcwicdaeisGvse,rrow)o.imthsoruetcreeisvterdicutinodne, rtothienMdiveiddicuaalllypeFrrsaognialel

Description of Analysis:

The medical care at issue in this case is directnursing care also referred to as private duty

nreucrseinivge. Tdhiins

aSnfailtysPisiztarkdeJsrth(eQaTm'Vo\ u)n1tIoñf

fIpL+rIi1vi-Iad.tSe,L.duiiutyiiiinyuersairn'gavcaiarewthaast

DavidGrooms
in. the MI-I'D

waiver) and compares it to the average SFY cost for people in nursing homes and the

Home Services Program (HSP). Since it is unclear exactly how many individuals would

eventually receive services ivcis. i UT CIICVC ills nigniy

at David's level, this analysis unliKely that more t—han 3-0-%

reviewed the of- individuals

costs at several would ever fall

into this category so the levels modeled are 1%, 10%, 20%, and 30%. By modeling a level of 1% the analysis has the flexibility to test any level by multiplying the level of 1% by the level to model. For example, to model a 5% shift one would multiply the value of 1% by 5.

. HFS is
without

frequently asked to analyze proposed legislative complete information in a very short time frcime

initiatives and
Withrut tK

polic-'yJcIcLhI+aJ1n1;gUesI

complete information, such analyses usually take the form of modeling the maximum or

minimum potential impacts of a change. This analysis follows that approach, since there

acrfe mi-annrydinnthIe1_rr!dt1yfelZpr•.endent variables that affect whether or not an individual can move out

Relevant Policy Issues:
Private duty nursing is provided to children in the MFTD waiver under Early Periodic creenJng, Diagnosis, and I reatment (EPSDT), mandatory services under federal Medicaid law. For adults, those age 21 and older, private duty nursing is an optional federal Medicaid service not included in the Illinois State Plan. The onlyway for an adult to access skilled nursing care in the home setting is to qualif' for services under a Home
and Community Based Service waiver (HCBS waiver). Any nursing services for adults rendered outside the federally approved HCBS waiver are not eligible for federal
financial participation (FFP).

All individuals in nursing facilities and HCBS waivers must have a Determination of

Need (DON) score of 29 in order for the State to reimburse for services. This is the

current tool used to determine the need for these services. Therefore, by definition all

rnnnc cnmnrd in this nitvic hw& iirA fr

e)JI,1-1v1 V L1 UI IJU! iiig Ldi C.

1-'age 1 ot 2

HFS 301460

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 40 of 47

Providing a benefit in excess of existing home and community waiver benefit levels could require the State to extend the same benefit to other persons. Some light-need nursing home residents could easily live outside a nursing home if 16 hours per day of nursing care were provided in the home. Nursing homes provide quality care in an
efficient manner by capitalizing on economies of scale. That is, one nurse can care for several patients in a centralized setting. Shifting patients from nursing home settings to home settings could have severe implications for the current medici1 cciztinrp and require a fundamental alteration of the program.
1. More nurses would be required to provide home care as the care model becomes
- individualized.
2. This would exacerbate the current nnrc cuh.,'-.friiiTja,c,.u,-u1j1II1u co-m--oiinea1
with short supply would drive up wages. Wages would not stabilize until more nurses entered the market. This would likely take several years.
3. Haigih.er wages would drive up the cost of nursing home and private duty nursing
4. Lower occupancy and higher wages would force some nursing homes to close. Nursing homes are the only option for some individuals. The consolidation would reduce access to this care in some areas.
. Although it may be desirable for individuals to receive 16 hours per day of
private duty nursing care in their homes, it is not cost efficient.

The current medical assistance program in Illinois serves over 2 millinn nicn1 ewh

month. This consists of children, parents, pregnant women, disabled adults, and elderly.

The current program operates at a cost of over $10 billion annually. Withoutadjusting for

the upward pressure on wages, the shift nc)nI]latic)n tn hnm ciri reeivinc hr,ftc

of only 10% of the current
vI11L w÷,- i'aviu 'J100111S

nuuurrisiiignginh-co'imaset

year in the Medically Fragile-Technology Dependent (MFTD) waiver would costs and

additional $856 million. That is more than the $578 million spent on all expanded eligible

Ip1o1puuIlvaItuiounas1iniiiF-tu.Y.-i.c2Tc0lT0o5n-..icICne-ar-vd—ideie-ti_so_ni_,-i'rt-o-wgoraumld

cost another $665 million if 10% of the

UI-')

were

to

begin

--
receiving

benefits

equivalent to David Grooms during the last year in the MFTD waiver. This combined

$1.52 billion shift is almost equal than the total amount of $1.8 billion spent on all children in the medical assistance program.

Such a large shift in costs would force the State to fundamentally alter the current program from one that takes care of a mix of uninsured families, disabled, and elderly to one that only takes care of the neediest families and a small nonulation of the mrct
severely ill.

Fage2oI2

301461

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 41 of 47
FiJ\a,dla-,-I1drV,1I1CS
HFS 301462

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 42 of 47
HFS 301463

g : Cosi of Persc ns Shfftii from C urrent Ficilities tc Commuirilty with Nursing Fours ancI Cost of Persons i Home ervices
i Program (Disable Waiver) Receiving Increased Services.

Lialbility Meimber Month FTE:S PM PM
PMPD

:e NursingFacility NrursingFacility
Exceptioina! Care E,:ceptional C Disab

NursingFacility

Ve:Lit

Other

$ 1,54O,O86,62 $ 15,82,898 $ 30,655,E65 $ 1€ 4,757,101

685,57c

2,045

6,3165

462,326

$

57,13 224€ $

170 7,767 $

530 4,8 16 $

38,527 356

$

74 $

255 $

58 $

12

TD
ver Da,id Grooms

51,213 $ 5,322
444

176,812 12

10,440 $ 342 $

14,734 483

Populailon Shift from Curreiritfacility I•0 comiTiunity wiff flursing benefit equivalent to Da id Groonis or shift )f Currerit number
direct care hours tc equiva lent to Dayid G rooms.

1% Shift 10°A Shift 20°A Shift 30% Shift

$

85,614,629 $

$

56,146,289 $

$ 1,7'12,292,578 $

$ 2,568,438,867 $

I 42,488 $
1,424,881 $ 2,849,763 $ 4,274,644 $

631,282 6,312,8 12,625,6:33 I 8,938,450

$ 66,473,083 $ 664,730,829 $ 1,321,461 ,658
$ 1,99 ,1 92,488

Formula:
(Membe* rCninooonmthssP*MPPerI-Mce) nt shift (Me*mCbuerrrenonmtnsitnheutstsin*(g-P) Pe1rcAePnMt)shift
equals(=) Cost to shft to Groom:s Benefit

Population Shift frc
current facility t()

cnoumrsrirungnibtyenweitfhit

equivalentto MFTD

average or shift curreni number

o
a f

directcate hours to

equivali?nt to MFTIID

av'erage.

1%3hift
10% Shift 20% Shift 30% Shift

$

56,172,980 $

$ 531729,798 $

$ 1,1:a3,459,596 $

$ 1,635,189,394 $

54,667 $
56,672 $
i,oc3,345 $ 1,60,017 $

357,942 $ 4€,618,858
3,579,41 8 $ 46€ ,188,577 7,158,8315 $ 932 377,154 1 0,738,25;3 $ 1,398 565,731

ormula:
r (Member onths * Percent shift
*MIFTD PMPMI)
(Me*mCbuerrrerrirnmot nsintehutstisn*(g-P)PerIci1ePnMt )shift equals(=)
Cost to shiftto MFTDverage
Benefit

s M:\Brda\ResE arch\Projects\MFTD Cases\(3rooms\[Groori cost compailsion.xls}CaIc

)JUI LIIT

HFS 3O144

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 43 of 47
cfj

M[edical Claims Summ1ry For David Groom

Category of S€rvice

Service

SFY 2000 DOS-Dvid was )nly eligi],le for 7 nionths of SFY2000

NJursing Services

2

2 FY 2001 DOS

Ihysician services

Jursing S rvices

7:

IF'harmacy Services (Drug and OTC)

3(

4edicalEcIuipment, Prosthetic Devices

z

'Jedical Sttpplies

12

FY20021JOS

Physician ;ervices

7

Nlursirig Services

82

Vharmacy5;ervices (r)rug and TC)

114

[edical Equipment/Prosthetic Devices

15

[edical SWpplies

14

232

.,— '-i'

01

''U'CC'JC

.?'

0101

DNFIDE?JTIAL -Protected H

5,749 5,749

-PMPM $821.33 $821.33

$14 )9,749
1,465
$439 $193
L1,860

$1.20 $9,145.78
$122.12 $36.55 $16.05 $9,321.70

1

$147 0,900 5,881 $928 $386
8,241

$12.23
$7,574.96 $490.06 $77.36 $32.17
$8,186.77

if

Pag€

Case 1:06-cv-02211 Document 77

Filed 06/20/2007 Page 44 of 47 cI

Medical laims SummryFor
Cateory of Service
;Fy 2003 DOS Fhysician services I.,.Jursirig S rvices Ftharmacy Services (Drug and OTC) I'4edical E Iuipment, 'Prosthetic Devices
4edical Sutpplies
Psychologi st EncourLter
FY20041)OS Rhysician ;ervices
N0uurtpsiantgieSnterSveircveisces (General)
Clinic ServiLces (Physical Rehalilitation) P1larmacy ;ervices (11)rug and JTC) Mledical Equipment/Prosthetic Devices Medical Sujpplies
Y 2005 EOS
PFysician Srvices NiLlrsing Seivices Oiitpatient 3ervices ((eneral) Clinic Servi :es (Physical Rehabilitation) PhLarmacy Services (Crug and ()TC) M dica1 Eqiiipment/]E'rosthetic Devices M dica1 Sui plies

P!Aa

rooms
Service Units

7E 16,01
9E
20
I
181 16,23

9

163 23,23 2

1

99

21

21

22

77E

317 24,03E

16

1

147 19,917

3

1

117

87

87

88

4,225

459 24,245

Pagc 2 of 3

-

—

I'-, '

(J1 (j
Q

)NFIDETIAL -Pr
ility PMPM

$0 [9,928
6,975
$333 $241 $69
7,546

$0.00 $9,994.03
$581.24 $27.74 $20.09 $5.75 ;10,628.85

$246 '4,926 $354
$25 6,859
8,001 2,049 2,460

$20.54 $ 14,577.17
$29.50 $2.08
$571.58 $666.75 $170.72
$16,038.33

$134 S,812
$97 $0
5,637 J,796 3,230 [,707

$11.14
$14,734.33
$8.11 $0.00 $469.79
1,733.02 $685.83
$:[7,642.21

I

a

1! $'! W

'LI

uom1

HFS 301465

N) 01 © 01
0
HFS 301466

uo.1wiojul qij

Filed 06/20/2007 Page 45 of 47

Medical Claims Summry For David (room

Category of Scrvice

Service,s

) BFY 2006 DOS YTI

Ihysician Services

2'

I.,Jursing Services

3'

Inpatientliospital Services (General)

C)utpatieni Services (General)

1I

C:linic Serices (Phy;ical Reha bilitation)

I

Fharmacy Services (Drug and OTC)

75

Iedica1 EcIuipmenti"Prosthetj c Devices

7

Iedica1 Stipplies

65

IIdividua1Provider5 PA, RN, LPN, CN' and The

80

Electronic [-Tome Res ponse/El-JR Installiition(MA]

2

379

FY 2007 1)OS YTIJ

P1hysician ervices
0utpatientServices (General)

3
1

InLdividual ProvidersPA, RN,]PN, CNi and The

72

ElectronicI-TomeResponse/EFIR Installa.tion(MAI

6

82

Units
5,93
7 1,45
3,13.
10,63
3,09( 3,10

\ Brda\Research\Projects\r4FTD Cases\G roonIs\[Grootns detail.xlslStLlnmaly

DNFIDEI'TIAL -Pr duty PMPM

$113 52,893
$0 $38 so
8,76O
[2,023 ;3,423 ,4,440 $108 L1,798

$9.38 $4,407.75
$0.00 $3.19 $0.00 $729.96 $1,001.94 $285.23 $5,370.02 $9.00 ;11,816.47

$28 $11 8,786 $198
9,024

$2.36 $0.91 $4,898.85 $16.50
$4,918.63

Case 1:06-cv-02211 Document 77
cJ

Pagc 3 of 3

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 46 of 47

AABD anI HCBS Waiv€rPeople-FY;a005 DOS LiaL1ity byCare Setting

4ursing Facility Nursing Facility

Exceptional Care ExceptionaCl are

Ntusing Facility

Vent

Other

SLF

Crnvmunily Settings

DD FaciliLy

CCI' Waiver

To1a1AABD & DO Waiver CisablecfWaiver AIDSWaiver FBI Waiver MITD Waiver Non-Waiver HBS Waiver

Aux

$

Clinic

$

lispatien Hospital $
Home h[ealth/Hospic $

LTC

$

Excepticnal Care $
Outpatint Hospital $

Pharnsac

$

Physicia n

$

PhyAu

$

Practitioner

$

Psych CI[ink

$

Psych Inpatient

$

Therapic

$

Transpo rtatiOn

$

Other

$

Medican Preiriiuins $

SLF

$

COP/UI

$

8,336,103 5
912,109 5
74,612,091 5
34,992,698 5 1,539,840,191 5
246,431 5 11,105,549 S 299,623,241 5
31,939,945 5
5,560,926 5
826,066 $
1,103,220 5
26,285,154 8
202,073 5 34,214,756 5 1,215,177 $ 25,774,730 5
186,446 5
5,253,759 5

HFS Total $ 2,102,230,663 $

1,049,778 6 1,987 6
4,193,299 6 $
1,461,254 6 14,421,644 6
129,489 $ 2,295,761 6
392,702 6 55,583 6 3,717 6
6 6 53 6 179,590 8 6 69,238 6
71,380 6
24,325,474 16

1078,629 $ 24,544 $
10,085,727 $ 184 $
1,977,687 $ 28,678,178 $

577,633 $
13,268 5 634,788 5
22,325 260,468
-

689,570 $ 196,903 5

5,143,926 $ 7,332,012 5

929,256 $
156,352 $ 14,488 $
869 $ 34,999 $
703 $
807,888 $ 36,450 $

245,792 5 64,495 5 11,241 5 340 15
13,972 1 27,877 325,513
-

175,370 $ 1,006,038

$ 32,723,408 710,069 $ 115,838

50,544,888 $ 43,571,912

1,308776 $ 13,380781 S

221,132 6 648,214 6

7,623,426 6 39,642,243 6

640,042 6 2,416,259 S

197,225 5

1,781 5

S

- S

730,240 5 6,405,619 5

29,077,412 5 92,637,362 5

1,936,574 5 8,529,214 5

503,416 5 1,759,662 S 140,520 8 204,088 5

4,852 8

15,200 5

652,666 8 399,938 5

168,544 8 183,489 5

808,369 8 5,374,860 S

4,051 8 323,243 5

5,125,483 8 27,160,999 5

8

124 5

208,791 8 5,607,819 5

49,351,521 204,690,895 5

3,699,302 461,679
3,303,273
124,749 335
1,014,763 5 42,290,658 5 2,347,033 5
667,519 $ 122,965 5 35,931 5 2,667,304 5
219,203 $
587,324 5 28,302 $ 6,314,980 5
- S 357,471 5

28,151,859 2,940,426 98,643,837 7,946,956
928
25,384,581 143,074,382
27,220,723 3,406,630
322,391 425,923 7,356,360 5 1,257,035 5 8,467,105 6 525,514 5 11,340,306 6
11,430,104 6

1,110,888 S 140,507 5
6,155,888 5
440,787 5
1,237,374 S 32,996,429 5 1,585,093 5
247,524 5 9,690 5
14,327 5 536,330 $ 27,906 $ 326,227 $ 32,479 $
707,606 $ - S
2,980,839 $

1,961,290 $ 426,116 $ 15,189,452 $
812,952 $
- $ - $ 1,546,015 $ 8,858,479 $ 2,516,450 $
348,846 $ 25,890 $ 21,732 $
518,047 $
319,101 $ 824,420 $ 65,816 $ 975,493 $
- $
2,113,922 $

6,687,031 $
13,256 S 7,128,567 $ 55,561,213 $
- $ - $ 368,713 $ 3,722,410 $ 864,810 $ 119,268 $ 501 $ 3,128 $
$
179,162 $
334,713 $
376,411 $ 3,345 $ - $
279,175 $

34,060,590 $ 101,402,658

13,725,743 $ 19,528,979
432,875,106 $ 700,087,698 9,420,886 $ 112,379,051 9,808 $ 1,543,749,677 891 $ 43,347,145

89,377,188 $ 138,186,004 606,795,996 $ 1,273,848,068 128,898,177 $ 207,405,770 21,722,157 $ 34,612,377
1,670,222 $ 3,351,779 3,829,120 $ 5,454,642

72,534,193 $ 110,998,962

3,809,503 $ 19,252,363 $
4,984,476 $ 110,137,797 $
113 $

6,394,649
71,503,128 7,591,921 188,791,385 32,910,091

95,010,213 $ 124,139,380

1, 64,242,791 5 377,895,060 6 48,549,893 $ 36,524,021 $ 75,641,703 $ 48,114,541 $ 4,•725,683,363

MernberMonths FTE-Anirual Persons

685,579 57,132

2,045 170

6,365 530

22,670 1,889

118,134 9,845

385,326 32,111

150,822 12,569

462,326 38,527

25,509 2,126

42,575 3,548

5,604 467

5,238,019 436,502

7,144,974 595,415

PMPM $

3,066.36 $

11,895.10

7,94107 $ 1,922.01 $

41776 5

531.21 $

425.95 5

817.38 6 1,90325 $

857.87 S 13,497.81 $

314.64 $

661.40

PMPY $

36,796 $

DHS & C)ther AgencySpe

DDprisate

$

DHS-CornmunitvMl- $ HCBSWtiver-Other$
HCBSW'iver -

RN/LPN /CNA/PA $

Other Agencies

$

SOF-DD

$

SOF-MH

$

164,594 $ 11,000,183 $
112,213 $
103,329 $
223,095 $ 99,977 $ 29,789 $

Other AgnciesTotal $ 11,733,181 $

PMPM $

17.11 $

142,741 5
3,079 5 63 5
- S - s
- S
- s
3,141 5
1.54 5

95,293 $ 23,064 $

5,013 5

6,375 $

5,111 8

9,809 5

22,839 $

10,294 $ 161,974 $

3,776 $

7,937

6,787 $ 6,920 $ 4,058 $
5,917 S
S S S
23,681 5
3.72 S

-

379,690,284 5

- $

9,202 $

58,232 $

573,898 $ 1,780,300 $ 4,559,705 $

357 $

12,518 S 126,403,504 $ 361,553,273 $

- s
13,039,931 $ 25,797,697 $

309,990 $ 1,388,873 $

- $ 519,084 $ 4,667,571 $

- S

42,043 5

- $

14,502 5

-
-

S 360,282,338 5 S 3,745,517 5

55,188 $ 27,205 $
- $ - $

82,422 $

491,715 $

69,7-23

$
$

164,757,101 $

1,402,981 $

- $

-

$

15,963,016 $ 28,479,218 $ 166,731 $ 218,516 $

- $

- $ - $

58,589 5 744,361,100 5 128,266,196 $ 366,766,039 $ 204,997,711 $ 17,828,610 $ 33,884,390 $

2.58 5

6,300.99 5

332.88 $

2,431.78 $

443.41 $

698.91 $

795.88 $

- $ 2,207 $
468 $

26,204 $

746,-889 -

$
$ $

1,273 $ 57,525,913 $
509,250 $

379,872,140 189,379,441
5 20,449,843

245,587 $

9,232,881 $

180,8-97

$ $

209,760,024
12,524,516 3i10,632,935
3,775,306

775,767 $ 167,695,801 $ 1,6p6,394,206

138.43 $

32.02 $

234,63

PMPY $

205 $

18 $

45 5

31 $

75,612 5

3,995 $

29,181 $

5,321 $

8,387 $

9,551 $

1,661 $

384 $

2,816

Medicaid Total PMPM 1'MPY

$ 2 113,963,844 $

$

3,083.47 $

$

37,002 $

24,328,615 5
11,896.63 5
142,760 $

50,568,570 7,944.79 95,337

7 43,630,501 $ 793,712,620 5 332,957,090 $ 431,008,831 $ 582,892,772 $ 66,378,503 $ 0,408,411 $ i,417,470 $ 1,81I5,810,342 $ 6,402,077,569

1,924.59 $

6,718.75 $

864.09 $

2,857.73 $

1,260.78 $ 2,602.16 $ 1,653.75 $ .3,636.24 $

346.66 $

896.03

23,095 $

80,625 $

10,369 $

34,293 $

15,129 $

31,226 $

19,845 $ 163,635 $

4,160 $

10,752

Iys\ r ro C\RDA\DtaAn

LTC\AABD waiverspending by ,tting 2005,ds

I iIii1

teBase McdirulAssistunrePouIaIio,
EPkaiererttys Childre
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FY 1995

DCN LiabilityF r Base and Eligibility Expansion Programs- All Medicaid

FY 1999

FY 2880

F? 2001

FY 2002

Fl 2003

FY2084

FV 2005

FY 2006 YTD 8Y2006 Pro

XIX

$2,205.52L81c $2,288,181,567

$2,443,721,340 82,746293036

$2,991,757,664 $3,069,037,731 $3,470.365,722 $3691.609316 83.711,539,341

83,906,85

XIX XIX

$1,426,758.70) $568,329.37)

51,408,015,243 $564,614,569

$1,586,695,400 $654860384

$1711151039 8725,080092

$1,000,015,-804 $771176957

$1,803,528,766 1,936,872,973 8201 3,083,724 81,826,899,921 $809,533,276 $822,755,559 $830,778,502 $875.228,480

81,923,0$921,2

XIX

$938,125,021

$928,094,712

$1,005,616,398 81,178.031885

$1,200,949,936 $1,258,757,836 2,320,381,283 $1.431,241,249 01.477,93:4,632

81,555,7:

XIX XXI

$283,891 001 S 3

$265,303,246 $0

$259,852,566 60

$273,079,962 $0

$255,874,287 $0

$252,118,109 $230,136,481 $3,998 $128,222,285

$284,092,747 $202,174,365

0226,3: 37,992 8219,704,121

82.38,22 8231,25

Case 1:06-cv-02211 Document 77 Filed 06/20/2007 Page 47 of 47

Eligibiliup Espussnions 8CC

XIX

S

$0

$0

$0

$1,138,780

$3,239,661

.84.577,379

6,497,698

07,668,045

88,0;

tL Heattby Women HBWD

XIX

S

5)3

$0

$1)

XIX

Sc

91

50

$0

$0

$0

$90,779

.82,335.173

83,8:79,345

$41

$1,095,199

$4,211,981

5,977,119

85,5:05,123

84.06 55,51

SerorC,
1.rrrnigr ntKidn
Assist Shore/P 185% to 2151% PI'L Rebate

XIX
NM NM NM NM

5)

$0

$0

$0

$11,371,162 $201,083,779 $258,382,018 $285, ,777,1543

$168.25: 9,975

888,54

$81,467 $3,327
$0 $0 5)8-4,794

$701,015 $60,424 $0 $0
$762,238

91,937,3194 $21 2,402 $0 $0
$2,149,496

$3,122,433 $595,902
$4)
$4)
$3,718,335

$5,713,667 $456,842 $0 $10,944
$4,183,460

84,911,873 $467,413 814,978 823,4-82
$5,417,706

.86.1 13,808 $699,365 067,496 022,628
65,9135,289

06,4;4,187 $950,973 5259,837 02 6,729
87,4551,726

56,81 $99 56 $1
$7.88

KidCareProgrems

Moms Sr MCHtP.-

BPahobnieesEI -spXIX

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Sbare/ Pri-mium

Rebate Rebate

-

p1 forSharc/Premiuo uninsured al app 185-

200%

Rebate- pees. insured

Rebate- uninsured at app.

2 - KC to 21. XIX
- 2t t(C to 11. XXI

TOTAL KIDCARE

XIX XIX XXI
XXI XIX NM XIX XXI
XIX
XXI

T()TAL KIDCAREless Moms & Babies

Fmi1yC

FosrsityCcm FrnityC ire

I I-

NM XIX

NM XIX

FamiIyCmet - XXI

I sublot FC 1049%

XXI

FFaoomsitiytyCC. IIrreeII!--

NM XIX

NM XIX

FamilyGire II- XXI

J subto PC 109(1%

XXI

FamityCa FamityCa

cr111re III -

NM XIX

NM XIX

FamityCaIre III - XXI

XXI

suhlola I FC to 133%

FamilyCa re IV- XIX

XIX

FamityCare IV - XXI

XXI

-n

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FamityCa

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IV IV

-

Reh15e Rebate-

rrm'e. thoured uninsioredrlopp.

suhlolal PC to185%

XIX XXI

cc

TOTAL PAMILYCAIXE

$2,576,667 $179,094
55,762,419 $7) Sc $0
$1) $0 $0 $0
$8,519,050 $5,942,383
$0 $0 $0
$0 Sc) $4) $0
SO
5)
SO $0
$0 $0 $0 $0 $0
$4)

$12,537,264 $8 16,655
$22,851,778 $788,801 $0 $8 $165,913 $9,541 50 $0
$37,164,372 $24,627,100
50 $0 $0 $0
$0 $0 so $0
$0 91 $0 $0
$0 91
$0
$0 $0
$0

519.102,162 $1,528,128
$30,984,015 $7,453,003
$0 $0 $1,192,659 $57,598 $0 50 $60,317,565 $41,215,402
$0 $0 $0 $0
$0 $0 $0 $0
$0 $0 $0 $0
$0 $0 $0 5(1 $0
$0

$24,151.876 $2,575,037 $43,111,628 $13,892,246
$0 $6 $2,319,570 $89,960 $0 $0 886,1 39,838 $61,987,962
$0 $0 $4) $0
$0 $0 $0 $0
$0 $0 $0 $0
$0 $0 $0 $0 $4)
$0

$24,738,689 $2,871,226 $39,189,600 $14,564,715
$0 00 $2,983,530 $88,312
$4)
$0 $84,436,071 $59,697,392
$4) $0 $0 $4)
$4)
so so $0
so so 50 so
so $0 so so
00
so

$28,014,574 $3,236,330
$42,678,977 $17,665,678
$202,672 $0
$2,963,273 $100,995 $0 $0
$94,862,499
$66,847,925

$21,669,906 $3,426,568
$44,781,839 $20,671,613
$1,035,095
$0 82774,659
$197,039 $78,110 91,032,478 895.667,307
$73,997,401

$21),224,314
5,943,108 $41,813,444 $21,807,420 $15,145,433
$7,777
815,099,318
$300,268 $312,085 $1739,952 $108.393,136 $88.168,822

$21.658,346
$6,9C 54,750] 062,163,274 030,707,637
82,709,941 $54,464
$2.963,905 $311,979
$363,138 $3.608,069 $131,415 5,542
$109,715 7,196

$77,561 $235,081 $13,679,721 $13,992,364
$8 $0 $26 $26
$0 $0 $0 $0
$0 $0 $0 $0 $0
$13,992,390

$55,417 $604,405 $43,498,816 $44,158,638

$46,285
I5581,265
$54.759,596 $55.387,146

$1189,356 $561,465 $63,57s 5,053
564,2.155,873

$10,759 $898,836 837,1 29,454 $38,039,029

$40,512 $1,.018,368 $62.,030,155 $63.,089,016

$8-4,852 $913: .754 568,112 5,676 $69,152 5,282

$8)
$0 $127 $127

$26,317 $2 338,484
$41, 684,557
$44,049,355

$410,480
$2,6545,554 081,748-468 584,443,510

$0

$0

$254 -.224

$0

$0

$3,038.366

$0

$0

$157'.503

$0

$0

$113.508

$0

$0

$3,563.602

882197,794 $162.1525,519 $221,366, .267

82245-9 $7.26
565,42: $32,32
$2.85: $5:
$3,115 $321 $38:
53,79; 51 38,400 5115,563
5150 $391 $66,922 967,628
$89 $961 $71,698 572,749,
0-42 $2,794, $86,051, $88,887,
$267, $3,198,
5165, 5119, $3,751,
$233,017,

Base Mi-dira! AssiSIooeToM!

EspanOons TOM!

GrsndTold

siosisbyFederal Group

NM

XIX

XXI

$54226260452 50.519,050
$5,431,145,052
$0 $2,756,561 $5,762,489 $8,519,050

$5,534,209,337 $37,249,166
$5,571 .458,503
$84,793 $13,514,252 $23,650,121 $37,249,366

$5,950,746,088 $61,079,803
$6,011,825,891

$6,633,636,753 $80,289,333
$6,723,926,087

$762,238 $21,822,949 $38,494,616 $61,079,803

$2,149,496 $29,045,983 $57,093,854 $88,289,333

$7,020,573,248 5100,664,348
$7,121,237,596

$7,192,949,715 $7,513,006,709

$7,805,734,306
$850,54-8,964
$0,) 59,279,270

88.461,1559,903 $578,5- 08,977
$9,039,-68,880

08,337,6544, 87 $545,656,023
$6,883,3105, 10

$3,718,335 $43,103,387 $53,812,627 $100,664,349

$4,261,021 $241,670,570 $74,125,398

$5,493,882 $)97,749,734 $1 47,311,347
$4 50,5-14,964

$7,)124,179 8335,1549,407 $236.135,391 $578,-) 08,977

$7,780,885 $224,494,107 $313,3815,)31 $565,6560,2.3

.98.776.478.. $485,827,-
59,262.3054
.98,1 90,9147,325,5 $326,557,s $482,076.:

Ii1

M:\Brda\Rsmrdr\Propmrlu\MFTDnCu\MiknIonn\IEoponui Progrn LhhIy D4- )7-2OO70JALLOCN

 
 Case 1:06-cv-02211 Document 76 Filed 06/20/2007 Page 1 of 15

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

DAVID GROOMS,

)

)

Plaintiff,

)

)

No. 06 C 2211

v.

)

Judge Rebecca R. Pallmeyer

)

Magistrate Judge Martin C. Ashman

BARRY S. MARAM, Director,

)

Illinois Department of Healthcare and

)

Family Services,

)

)

Defendant.

)

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Now Comes Defendant, BARRY S. MARAM, in his official capacity as Director
of the Illinois Department of Healthcare and Family Services, by and through his
attorney, LISA MADIGAN, Attorney General of Illinois, and hereby responds to
Plaintiff’s Motion for Partial Summary Judgment, stating as follows:
ARGUMENT
I. THE COURT CANNOT ENTER JUDGMENT IN FAVOR OF PLAINTIFF PURSUANT TO FED. R. CIV. P. 56 BECAUSE PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT PARTITIONS THE CLAIM CONTAINED IN EACH OF DEFENDANT’S AFFIRMATIVE DEFENSES 1 AND 2.

The Plaintiff here is asking for a judgment without specifying which subparagraph of Fed. R. Civ. P. 56 purports to authorize the court to render such a judgment. See, Plaintiff’s Motion for Partial Summary Judgment. As Defendant will show, no portion of Rule 56 empowers the court to award relief to Plaintiff in the form of a judgment. Additionally, the court should decline to treat Plaintiff’s Motion for Partial Summary Judgment as one seeking a pretrial adjudication on a certain limited issue pursuant to Fed. Rule Civ. P. 16(c).
First, it is well settled that Rule 56 does not permit a court to enter a judgment on less than an entire claim. Leonard v. Socony-Vacuum Oil Co., 130 F.2d 535, 536-37 (7th Cir. 1942) (granting of summary judgment on a certain element of a claim is an

Case 1:06-cv-02211 Document 76 Filed 06/20/2007 Page 2 of 15
interlocutory pretrial order in the nature of granting a motion to strike); Biggins v. Oltmer Iron Works, 154 F.2d 214, 216, 217 (7th Cir. 1946) (Rule 56 does not contemplate a summary judgment for any portion of a single claim less than the whole); Capitol Records, Inc. v. Progress Record Distributing, Inc., 106 F.R.D. 25, 28 (N.D. Ill. 1985). The rationale for this result is that Rule 56 refers to “judgments” which are, in turn, defined as orders from which appeals lie.
In Biggins, a sales representative brought suit to recover compensation for services he rendered to defendant during a certain time period. He sought to recover a sum certain which was broken down into five constituent items. Plaintiff was awarded, on his motion, a partial summary judgment on two items of his enumerated damages. The defendant appealed. The Seventh Circuit found that the concept of partial summary judgment under those circumstances was both a misnomer and improper. Biggins, 154 F.2d 216-17. The Court found that the judgment improperly split Biggins’ single claim – to enforce compensation for services rendered – into separate and distinct elements. Id. at 216. The items of compensation were of “an evidentiary nature and in fact and reality were mere elements on which a single claim was predicated.” Id.
Both Biggins and Capitol Records demand the conclusion that the court cannot entertain this motion under Rule 56(a). Both Plaintiff’s Statement of Material Facts and his Memorandum in Support of Plaintiff’s Motion for Partial Summary Judgment misstate the substance of Defendant’s affirmative defenses. As disclosed to Plaintiff through discovery, both of Defendant’s affirmative defenses rest on more than the Expert Witness Report of Todd Menenberg, the Defendant’s retained expert. Both of the affirmative defenses each consist of one claim that rests on three discrete evidentiary threads. (Defendant’s SAMF No. 20, 21; Defendant’s Exhibit A at pp. 9-22, B, C). Were this court to award the relief Plaintiff seeks here, such relief would not dispose of the entire claim contained in affirmative defenses 1 and 2.
With regard to those affirmative defenses, Defendant asserts, on the one hand, that if Plaintiff were to prevail and Defendant is required to ignore the costs caps of the Persons with Disabilities Medicaid Waiver Program, then the cost caps would have to be eliminated for other persons, both those currently enrolled in the Persons with Disabilities Medicaid Waiver Program and persons currently in long term care facilities who could
2

Case 1:06-cv-02211 Document 76 Filed 06/20/2007 Page 3 of 15
move into the community under a more generous Medicaid Waiver Program. Defendant asserts that such a removal of the program’s cost caps results in programmatic changes to the Persons with Disabilities Medicaid Waiver Program that constitute fundamental alterations (or result in inequitably harsh results to the State’s programs). This assertion rests, in part, on the testimony of a fact witness, HFS employee Barbara Ginder, together with the Persons with Disabilities Medicaid Waiver Program document approved by the federal government. (Defendant’s SAMF Nos. 20, 21, 22, 23; Defendant’s Exhibit C at pp. Bates numbered 3025, 3027).
Next, Defendant asserts that the programmatic changes that result would require expenditures of public funds that are not reasonable. Two discrete evidentiary bases support this aspect of Defendant’s claim. One basis is contained in the Expert Witness Report of Mr. Menenberg together with his anticipated in-court testimony and his Rebuttal Report. (Plaintiff’s SMF No. 10; Defendant’s SAMF Nos. 20, 26). The second evidentiary basis consists of the analysis performed by Defendant’s fact and opinion witness, HFS employee, Matt Werner, together with his in-court testimony about the costs to the Persons with Disabilities Medicaid Waiver Program were Plaintiff to prevail. Mr. Werner’s evidence is not merely cumulative of Mr. Menenberg’s since the methodologies used by these witnesses differ markedly. Mr. Werner is also expected to opine about the negative impact on the supply of registered nurses if Plaintiff is successful. (Defendant’s SAMF Nos. 21, 21; Defendant’s Exhibit B at pp. Bates numbered HFS301460-301468, MW 500042-500053).
As shown above, Plaintiff’s Motion for Partial Summary Judgment partitioned a single claim contained in each of Defendant’s affirmative defenses, and confined itself to seeking judgment on the evidence contained in Mr. Menenberg’s Expert Witness Report. See, Plaintiff’s Rule 56.1(a)(3) Statement of Material Facts and Memorandum in Support of Plaintiff’s Motion for Partial Summary Judgment. It is evident that Plaintiff is proceeding in a piecemeal fashion and seeking nothing more than a factual adjudication on the Menenberg Expert Witness Report. Fed. R. Civ. P. 56(a) does not countenance this result.
Second, the Plaintiff cannot rely on Fed. R. Civ. P. 56(d) because this rule does not permit the court to make a mere factual adjudication in the absence of a proper
3

Case 1:06-cv-02211 Document 76 Filed 06/20/2007 Page 4 of 15
motion for summary judgment having been denied in whole or in part. Capitol Records, 106 F.R.D. at 29-30. Defendant adopts all the arguments and authorities set forth concerning Rule 56(a) as his argument here. As stated, Biggins and Capitol Records hold that Rule 56(d) cannot be used to grant judgment on an element of a single claim. Moreover, the court should follow the rule articulated in Capitol Records that the court can proceed to frame and narrow the triable issues pursuant to Rule 56(d), but only when a proper motion for summary judgment has been denied in whole or in part, and the court also finds that such an order would be helpful to the progress of the litigation. Were the rule otherwise, parties would bring numerous and repetitive motions seeking to resolve limited factual issues that would not dispose of a claim, would not become final until trial and would waste judicial resources in almost every case. Id. Since Plaintiff has not moved for true summary judgment, he cannot ask this court to make a mere factual adjudication concerning the Menenberg Expert Witness Report pursuant to Rule 56(d).
Third, by its plain language, Rule 56(c) does not apply here. Plaintiff’s Motion for Partial Summary Judgment is not asking for an interlocutory order concerning Defendant’s liability.
Fourth, the court can properly deny Plaintiff’s Motion for Partial Summary Judgment as an untimely motion to strike. Fed. R. Civ. P. 12(f); Leonard v. SoconyVacuum Oil Co., 130 F.2d 535, 537 (7th Cir. 1942); Petroff Trucking Co, Inc. v. Envirocon, Inc., 2006 WL 2938666 * 2 (Dist. Ct. S.D. Ill. October 13, 2006).
Finally, for all the reasons set forth in Arguments II and III of this Response, the court should simply decline to treat Plaintiff’s Motion for Partial Summary Judgment as a request for a pretrial order pursuant to Fed. R. Civ. P. 16(c). II. WHETHER PLAINTIFF HAS PROPERLY INVOKED FED. R. CIV. P. 56 OR WHETHER PLAINTIFF IS SEEKING A PRETRIAL ORDER PURSUANT TO FED. R. CIV. P. 16(c), PLAINTIFF’S MOTION IS NOT RIPE FOR ADJUDICATION BY THIS COURT.
Plaintiff’s Complaint sets forth three separate claims. First, Plaintiff claims that Defendant violated the Americans with Disabilities Act, 42 U.S.C. § 12132, hereinafter referred to as the “ADA.” (Complaint at ¶¶ 4, 7, 37, 39, 40, 41 and 44). Next, Plaintiff claims that Defendant violated the Rehabilitation Act, 29 U.S.C. § 794(a), hereinafter referred to as “Section 504.” (Complaint at ¶¶ 4, 7, 37, 39, 40, 41 and 44). Lastly,
4

Case 1:06-cv-02211 Document 76 Filed 06/20/2007 Page 5 of 15
Plaintiff claims that Defendant violated rules promulgated by the Attorney General in reference to the ADA and by the Department of Health and Human Services in reference to Section 504, in particular, 28 C.F.R. §§ 35.130(d) and 41.51(d), referred to as “the integration mandates.” (Complaint at ¶¶ 38, 41 and 44).
According to the argument in the so-called Plaintiff’s Motion for Partial Summary Judgment, Plaintiff has abandoned his claims under the ADA and Section 504 and, instead, pursues a claim that Defendant violated the integration mandates. See, Plaintiff’s Memorandum in Support of Motion for Partial Summary Judgment at pp. 1, 2. Under these rules, Sections 35.130(d) and 41.51(d), a public entity (or the program receiving federal financial assistance) is required to administer services and programs in the most integrated setting appropriate to the needs of qualified individuals with disabilities. The Seventh Circuit’s decisions in Bruggeman v. Blagojevich, 324 F.3d 906, 912-13 (7th Cir. 2003) and Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) do not recognize an independent claim for relief under the integration mandates. Both decisions reversed dismissals of ADA and Section 504 claims and remanded the cases for further proceedings.
First, Defendant disputes whether the integration mandates apply to Plaintiff. According to the Complaint, and to the information that is available to Defendant, Plaintiff David Grooms has, at all times relevant, lived in the most integrated setting appropriate to his needs. According to the information available to Defendant, David Grooms lives in his parents’ home in the community, participates in Defendants’ home and community–based Medicaid services program, specifically, the Persons with Disabilities Medicaid Waiver Program, and receives services through that program in the most integrated setting appropriate to his needs. Before the court need concern itself with whether any relief to Plaintiff is justified and would cause fundamental alteration to Defendant’s Medicaid programs (or, cause inequitably harsh results), the court will have to first find that David Grooms has a claim under the integration mandates. Since the socalled Plaintiff’s Motion for Partial Summary Judgment does not seek relief on any of Plaintiff’s claims, Defendant need not now present any evidence that goes to the merits of
5

Case 1:06-cv-02211 Document 76 Filed 06/20/2007 Page 6 of 15
Plaintiff’s claim under the integration mandates, or arguments of law concerning the rules’ meaning and applicability to Plaintiff.1
Moreover, the Supreme Court in Olmstead v. L.C., 527 U.S. 581, 592-93, 598 (1999) did not decide whether the regulations promulgated under the ADA (and, by analogy, under Section 504) exceed the Acts of Congress themselves, or were entitled to the degree of deference described in Chevron, U.S.A. Inc. v. National Resource Defense Council, 467 U.S. 837 (1984), or simply “respect.” The Seventh Circuit in Wisconsin Community Services, Inc. v. City of Milwaukee, 465 F.3d 737 (7th Cir. 2006) discussing the “reasonable accommodation” rule promulgated by the Attorney General pursuant to the ADA, noted that the Supreme Court never determined whether the rules are entitled to Chevron-type deference and the Seventh Circuit did not so hold. Wisconsin Community Services, Id. at 751 n.10.
Thus, in addition to deciding whether Plaintiff has a claim under the pertinent rules, the court will also have to resolve arguments concerning the degree of deference to accord these rules, and indeed, whether the rules exceeded the authority granted by Congress. Significantly, Defendant’s fourth affirmative defense claims that the integration mandates exceed the Acts of Congress, but since the so-called Plaintiff’s Motion for Partial Summary Judgment does not seek relief in reference to that affirmative defense, those arguments are not properly made here.
As previously stated, Plaintiff has abandoned his claims under the ADA and Section 504. Even if he has not, then his so-called Motion for Partial Summary Judgment is not ripe in light of the elements Plaintiff must first prove in reference to those statutes (and the integration mandates if such a claim is cognizable) before issues of whether the relief results in a fundamental alteration to Defendant’s programs is properly before the court.
1 Defendant is aware of the ruling in Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175, 1181 (10th Cir. 2003) that a person need not be institutionalized in order to sue under the ADA’s integration mandate. Defendant, here, is not suggesting that Plaintiff can sue only if he is in an institution; rather, Defendant asserts that evidence of Plaintiff Grooms’ successful participation in the Defendant’s program negates his claim under the integration mandates on the merits. In any event, as stated above, the Seventh Circuit has not recognized an independent claim under these regulations and Defendant disputes that these rules create such an independent claim.
6

Case 1:06-cv-02211 Document 76 Filed 06/20/2007 Page 7 of 15
Turning, first, to the ADA, 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.” 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 was by reason of his disability. Sandison v. Michigan High School Athletic Ass’n., Inc., 64 F.3d 1026, 1036 (6th Cir. 1995).
Under Olmstead v. L.C., 527 U.S. 581 (1999), 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. Olmstead, 527 U.S. at 601-03. Nevertheless, the Court held that the State is permitted to resist modifications that entail fundamental alterations of the State’s services and programs. Id. 527 U.S. at 603-08. The Supreme Court pointed out that if placing one or two people in a community-based services program is measured for reasonableness against the State’s entire health budget, then the State will never win on its fundamental alteration defense. Id. at 603-04. Sensibly construed, the fundamental alteration component of the reasonable modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities. Id. at 604.
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, 561-64 (7th Cir. 2003); Wisconsin Community Services, 465 F.3d at 753. In this Circuit, a plaintiff pursuing a reasonable accommodation claim under Title II need not allege either disparate treatment or disparate impact.
Without waiving any objections to any evidence David Grooms may attempt to place before the court and without waiving any motions in limine or motions to bar for
7

Case 1:06-cv-02211 Document 76 Filed 06/20/2007 Page 8 of 15
discovery sanctions, Defendant only states that his burden of going forward and proving the fundamental alteration defense will not arise until Plaintiff proves that he meets “. . . the essential eligibility requirements for the receipt of services or the participation in [Defendant’s] programs with or without reasonable modifications to the rules policies or practices.” Since Plaintiff is not moving for summary judgment on his ADA claim, Defendant need not present or discuss any evidence or legal argument as to whether David Grooms meets the statutory requirements of the ADA generally. Olmstead, 527 U.S. at 603-08; Sandison v. Michigan High School Athletic Association, Inc., 64 F.3d 1026, 1036-37 (6th Cir. 1995). Until David Grooms goes forward and establishes his ADA claim, any questions concerning the sufficiency and merits of Defendant’s affirmative defenses 1 and 2 are not properly before this court.
Turning, next, to Section 504, Section 504 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 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. The Court went on to find that Tennessee’s limitation on hospital days covered by Medicaid does not offend Section 504
8

Case 1:06-cv-02211 Document 76 Filed 06/20/2007 Page 9 of 15
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 * 7 (N.D. Ill. 1992) vacated on other grounds 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 Section 504; 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).
In Alexander, the Supreme Court found a duty to accommodate in Section 504 generally when it explained that “under some circumstances, a ‘refusal to modify an existing program might become unreasonable and discriminatory.’” Alexander, 469 U.S. at 300 citing Southeastern Community College v. Davis, 442 U.S. 397, 413 (1979). See, also, Wisconsin Community Services, Inc. v. City of Milwaukee, 465 F.3d 737 746-48 (7th Cir. 2006); Washington v. Indiana High Scholl Athletic Ass’n., Inc., 181 F.3d 840, 847-48 (7th Cir. 1999). As a corollary, the Supreme Court found that the Alexander plaintiffs’ request to modify the 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, 469 U.S. at 308. The Court also noted that similar treatment would have to be accorded other groups. Id. The Supreme Court, thus, recognized that the equities permitted the State to resist the broadbased distributive decision that would be required. Id. The Eighth Circuit has recognized that for Section 504 purposes, accommodations are not reasonable if they impose undue financial burdens or if they require a fundamental alteration in the nature of the program. Timothy H. v. Cedar Rapids Community School District, 178 F.3d 968, 972 (8th Cir. 1999).
Without waiving any objections to any evidence David Grooms may attempt to place before the court and without waiving any motions in limine or motions to bar for discovery sanctions, Defendant only states that his burden of going forward and proving the fundamental alteration defense or the affirmative defense that the relief would be inequitable will not arise until Plaintiff proves that he is “. . . otherwise qualified for the
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benefit or service sought.” Under Alexander and Wisconsin Community Services, this inquiry encompasses the propriety of the modifications David Grooms seeks to the Defendant’s program. The answer to this question, in most cases, requires the district court to conduct an individualized inquiry and make appropriate findings of fact. School Board of Nassau County v. Arline, 480 U.S. 273, 287 (1987). Since Plaintiff is not moving for summary judgment on his Section 504 claim, Defendant need not present or discuss any evidence or legal argument as to whether David Grooms meets the statutory requirements of Section 504 generally. Arline, Id.; Sandison v. Michigan High School Athletic Association, Inc., 64 F.3d 1026, 1030-35 (6th Cir. 1995). Until David Grooms goes forward and establishes his Section 504 claim, any questions concerning the sufficiency and merits of Defendant’s affirmative defenses 1 and 2 are not properly before this court. See, Alexander, 469 U.S. at 603-08. III. ASSUMING THAT PLAINTIFF HAS PROPERLY INVOKED FED. R. CIV. P. 56, PLAINTIFF HAS NOT MADE THE REQUISITE SHOWING THAT THERE IS NO GENUINE ISSUE AS TO ANY MATERIAL FACT AND THAT HE IS ENTITLED TO JUDGMENT ON THE MENENBERG EXPERT WITNESS REPORT AS A MATTER OF LAW.
Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Schuster v. Lucent Technologies, Inc., 327 F.3d 569, 573 (7th Cir. 2003) (citing Fed.R.Civ.P. 56(c)). When evaluating a motion for summary judgment, the court views the evidence in the light most favorable to the non-moving party and makes all reasonable inferences in his or her favor. See Haywood v. Lucent Technologies, Inc., 323 F.3d 524, 529 (7th Cir. 2003). The court accepts the nonmoving party’s version of any disputed facts, but only if those facts are supported by relevant, admissible evidence. Bombard v. Ft. Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). The moving party has the burden of demonstrating the absence of genuine issues of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this burden, the nonmoving party must set forth specific facts that demonstrate the existence of a genuine issue of material fact for trial. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324, 106 S. Ct. at 2553. To successfully oppose the motion
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for summary judgment, the nonmoving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine, triable issue. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).
Where, as here, a plaintiff uses a summary judgment motion to challenge the legal sufficiency of an affirmative defense on which the defendant bears the burden of proof at trial, a plaintiff may satisfy its Rule 56 burden by showing that there is an absence of evidence to support an essential element of the non-moving party’s case. F.D.I.C. v. Giammettei, 34 F.3d 51, 54-55 (2nd Cir. 1994); DiCola v. SwissRe Holding (North America), Inc., 996 F.2d 30 (2nd Cir. 1993) (quoting Celotex, 477 U.S. at 325); Haywood, Id. at p. 562. The rationale is that where there is an absence of evidence to support an essential element of an affirmative defense, with respect to that affirmative defense there can be no genuine issue as to any material fact because a complete failure of proof concerning an essential element of the defendant’s affirmative defense necessarily renders all other facts immaterial. Giammettei, Id., (quoting Celotex, 477 U.S. at 323). A party seeking summary judgment on a defendant’s affirmative defense is not required to come up with evidence to disprove the affirmative defense. Applying these principles to the so-called Plaintiff’s Motion for Partial Summary Judgment demands the conclusion that Plaintiff’s Motion is ill-conceived, fails to understand Rule 56, constitutes an improper use of Rule 56, and that the Motion must be denied.
First, the Plaintiff here has not met his burden under Celotex because he has not established that there is an absence of evidence on an essential element of Defendant’s affirmative defenses 1 and 2, or that Defendant’s proof on those affirmative defenses will fail. Plaintiff, both as a matter of fact and as a matter of law, did the exact opposite. According to Plaintiff’s Rule 56.1(a)(3) Statement of Material Facts and Memorandum in Support of Plaintiff’s Motion for Partial Summary Judgment, the Plaintiff is simply disputing facts and conclusions contained in Menenberg’s evidence. The so-called Plaintiff’s Motion for Summary Judgment, in its entirety, is arguing that Plaintiff has a claim under the integration mandates and that some undisclosed and unidentified evidence that he will someday attempt to put before the court will show that Menenberg’s Expert Witness Report is wrong. See, Memorandum in Support of Motion for Partial
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Summary Judgment at pp. 6, 7, 8, 10. Plaintiff called certain facts “undisputed” as Local Rule 56.1(a)(3) requires him to do, and then went on to dispute those very facts himself through his Memorandum in Support of his motion. As yet, Plaintiff’s purported evidence is not before the court and Defendant is not obligated under Rule 56 or Celotex to try and anticipate how Plaintiff will disprove what Defendant, by law, must prove.2
Furthermore, Plaintiff’s Rule 56.1(a)(3) Statement of Material Facts cites the Menenberg Expert Witness Report as evidence supporting Plaintiff’s SMFs Nos. 11 and 17 through 19. Plaintiff has nowhere challenged the admissibility of this evidence and, instead, relies on Menenberg Expert Witness Report as evidence to support a so-called Plaintiff’s Motion for Partial Summary Judgment. As previously stated, Plaintiff, to prevail on a motion for summary judgment as to Defendant’s affirmative defenses 1 and 2, must show that Defendant does not have evidence to support an essential element of his claim. Plaintiff has not done this; rather, Plaintiff argues that evidence that Plaintiff will put on at trial in support of his integration mandates claim will show that Menenberg’s evidence is wrong. Plaintiff is simply asking the court to reject the conclusions contained in the Expert Witness Report for reasons that go entirely to the weight to accord it and not to its admissibility under Fed. R. Ev. 702, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and to cases applying Daubert.3 The Plaintiff’s use of Rule 56 in this fashion is not countenanced by Rule 56 itself and Celotex.
2 As previously stated, Defendant is not waiving any objections, motions in limine or motions to bar Plaintiff’s evidence. Nevertheless, the court should note that, in anticipation of the information that his retained expert would need, Defendant asked Plaintiff by interrogatory how Plaintiff wanted the Persons with Disabilities Medicaid Waiver Program modified. Plaintiff refused to supply an answer and now claims that Mr. Menenberg does not understand what Plaintiff wants out of this lawsuit. “. . . Mr. Menenberg’s Report is based on a misapprehension of the relief that David is actually seeking in this case. . .” See, Memorandum in Support of Plaintiff’s Motion for Partial Summary Judgment at p. 6; (Defendant’s SAMF No. 24; Defendant’s Exhibit D at Interrogatory 19, p. 18).
3 Plaintiff waived a challenge to the admissibility of the Menenberg Expert Witness Report under Fed. Rule Ev. 702 and Daubert and its progeny. A party cannot treat evidence as admissible for Rule 56(e) purposes and then challenge its admissibility at trial because the whole purpose of summary judgment is to determine whether there is any material dispute of fact for trial and the parties have the burden of identifying the evidence to facilitate that assessment. Malec, Id., 191 F.R.D. at pp. 582-83.
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In addition, Plaintiff’s Local Rule 56.1(a)(3) Statement of Material Facts is required to set forth allegations of material facts that contain specific references to the exact pieces of the record that support the factual contention contained in the paragraph. Local Rule 56.1(a)(3); Malec v. Sanford, 191 F.R.D. 581, 583 (N.D. Ill. 2000). It is improper to cite to a Complaint as support for a Local Rule 56.1(a)(3) Statement of Facts. Najieb v. Chrysler-Plymouth, 2002 WL 31906466 * 1 (N.D. Ill. December 31, 2002). Under these authorities, Plaintiff’s SMFs Nos. 3, 9 and 12 through 15 are improper and must be disregarded, regardless of whether they are true statements of fact or conclusions of law.
Also, the portion of Plaintiff’s Memorandum in Support of his Motion for Partial Summary Judgment under the heading “Introduction and Factual Background,” at pages 1 through 3, is replete with “facts” and argument that are not properly before this court and should be stricken. The facts that are material to a resolution of this matter should have been set forth with proper evidentiary support in the Plaintiff’s Statement of Material Fact with specific citations to evidence. Malec, Id., 191 F.R.D. at p. 583.
Second, Defendant does not concede that Plaintiff has met his burden under Rule 56 and Celotex. Nevertheless, if he has, given that Defendant has the burden of proof on both affirmative defenses 1 and 2, the Menenberg Expert Witness Report satisfies Defendant’s burden as the non-moving party to defeat summary judgment by establishing that there are genuine issues of material facts on Defendant’s affirmative defenses. Defendant does not contend that the fundamental alteration defense can be broken down into discrete elements that Defendant must prove like the statutory elements contained in the ADA and Section 504. Rather, as set forth in Argument I, even if the Menenberg Expert Witness Report is not enough to establish genuine issues of fact as to Defendant’s affirmative defenses, Defendant demonstrated that those affirmative defenses rest on evidentiary pieces that are not the subject of Plaintiff’s Motion for Partial Summary Judgment including, Mr. Werner’s documents (Defendant’s SAMF Nos. 20, 21; Defendant’s Exhibits A, B), documents that will be admitted through Ms. Ginder’s testimony (Defendant’s SAMF Nos. 20, 21, 22, 23 and Defendant’s Exhibit C), and Mr. Menenberg’s Rebuttal Report. (Defendant’s SAMF No. 26; Defendant’s Exhibit F). Although Plaintiff makes no mention in his Motion for Partial Summary Judgment, he
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retained an expert to contest the Menenberg Expert Witness Report. (Defendant’s SAMF No. 25 and Defendant’s Exhibit E). Defendant refers this court to Dr. Flint’s Report only for the purpose of this Response and, by so doing, does not concede that Plaintiff’s expert’s opinions are admissible under Fed. R. Ev. 104, 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). It is evident that Defendant’s affirmative defnses 1 and 2 are replete with genuine issues of material facts for trial.
In summary, under Rule 56 and Celotex, Defendant, as the non-moving party, is not required to come forward with evidence to dispute “facts” on a claim that is not the subject of a motion for summary judgment. In other words, all of the Plaintiff’s challenges to the Menenberg Expert Witness Report depend on facts or arguments that are part of the operative facts under his integration mandates claim, or under Dr. Flint’s purported expert opinions. Plaintiff himself admits this. See, Plaintiff’s Memorandum in Support of Motion for Partial Summary Judgment at p. 2. (“When the erroneous legal assumptions are removed from the analysis, and the report is viewed in light of the relief David Grooms actually seeks, Defendant’s fundamental alteration and inequitable burden defenses collapse.”) Since Plaintiff’s claim under the integration mandates (or the ADA or Section 504) are not before this court on anyone’s motion for summary judgment, Defendant need not controvert nor address any facts and arguments that would establish Plaintiff’s right to relief under these statutes and regulations. Rule 56; Celotex.
WHEREFORE, for the foregoing reasons, Defendant prays that: 1) Plaintiff’s Motion for Partial Summary Judgment be denied; and 2) The court decline to treat Plaintiff’s Motion for Partial Summary Judgment as a request for a pretrial order pursuant to Fed. R. Civ. P. 16(c); and 3) The court award Defendant the costs of responding to this Motion for Partial Summary Judgment pursuant to Fed. R. Civ. P. 56(g).
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DATED: June 20, 2007

Respectfully submitted,
LISA MADIGAN Attorney General State of Illinois
By: /s/Karen Konieczny________ KAREN KONIECZNY #1506277* JOHN E. HUSTON #3128039 CHRISTOPHER GANGE #6255970 Assistant Attorneys General 160 N. LaSalle St. Suite N-1000 Chicago, IL 60601 (312) 793-2380

*Robert Lev, a second year law student at The John Marshall Law School, assisted in the research for and preparation of this Defendant’s Response to Plaintiff’s Motion for Partial Summary Judgment.

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 Case 1:06-cv-02211 Document 79 Filed 06/29/2007 Page 1 of 11

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

DAVID GROOMS,

)

)

Plaintiff, )

No. 06 C 2211

)

v.

)

Judge Rebecca Pallmeyer

)

BARRY S. MARAM,

)

Magistrate Judge Martin C. Ashman

Director, Illinois Department of

)

Healthcare and Family Services

)

)

Defendant.

)

PLAINTIFF’S REPLY TO DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

INTRODUCTION In a confusing labyrinth of arguments, Defendant’s Response 1) wrongly attacks Plaintiff’s use of the vehicle of a motion for partial summary judgment to challenge Defendant’s affirmative defenses; 2) meanders into its own unrelated and non-affirmative defenses to Plaintiff’s claims; and 3) promises to produce evidence at trial to support its affirmative defenses. What it does not do, however, is present evidence from which a reasonable trier of fact could conclude that Defendant’s affirmative defenses have been established. Defendant has offered neither legal nor factual support for his defenses-calamities that he predicts would result in this single-plaintiff case from a ruling in Plaintiff’s favor. This Court should therefore reject those defenses as a matter of law and bar any evidence offered in support thereof at trial.

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1. A Motion for Partial Summary Judgment is a Proper Vehicle for a Pretrial Challenge to Affirmative Defenses. Defendant contends that this Court may not entertain Plaintiff’s Motion for Partial
Summary Judgment because it does not seek a final “judgment,” because it improperly seeks to “partition” Defendant’s claims, and because Plaintiff has not yet proven his right to relief, a predicate for consideration of an affirmative defense. Defendant’s arguments are without merit and evince a misunderstanding of the difference between a claim and a defense and the difference between a pleadings-based motion (motion to strike) and an evidence-based motion (motion for partial summary judgment). See, e.g., Wilson v. Sundstrand Corp., Nos. 99 C 6944, 99 C 6946, 2003 WL 21961359, at *5 (N.D. Ill. Aug. 18, 2003) (“Plaintiffs are seeking summary judgment on the defenses; they have not moved to strike them for inadequate pleading.”).
Contrary to Defendant’s assertion, a motion for partial summary judgment is widely accepted as a means of testing the legal sufficiency of affirmative defenses using summary judgment standards. Rubin v. Islamic Republic of Iran, 408 F. Supp. 2d 549, 552 (N.D. Ill. 2005) (“Courts in the Northern District of Illinois routinely entertain motions for partial summary judgment.”) Numerous cases in the Seventh Circuit in which motions for partial summary judgment on affirmative defenses were considered. See, e.g. Illinois School Dist. Agency v. Pacific Ins. Co., Ltd., 471 F.3d 714 (7th Cir. 2006); Certain Underwriters of Lloyd’s v. Gen. Accident Ins. Co., 909 F.2d 228 (7th Cir. 1990); Hanania v. Loren-Maltese, 319 F. Supp. 2d 814 (N.D. Ill. 2004). This Court has entertained such a motion. See Mahurkar v. C.R. Bard, Inc., No. 01 C 8452, 2004 WL 1982531 (N.D. Ill. Sept. 7, 2004, Pallmeyer, J.). Finally, the very case relied upon by
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Defendant in his “partition” argument, addressed below, recognizes that courts “routinely entertain motions for partial summary judgment seeking the dismissal of affirmative defenses.” Petroff Trucking Co., Inc. v. Environcon, Inc., No. 05-CV-414-WDS, 2006 WL 2938666, at *2 (S.D. Ill. Oct. 13, 2006).
Defendant argues that the Court may not enter a real “judgment” for Plaintiff based on this motion and therefore it is not properly a motion for partial summary judgment. It is true that a final judgment will not be entered, but that is also true, for example, when a court enters a partial summary judgment on liability and leaves the issue of damages for the jury. The partial summary judgment device is used to eliminate claims or defenses from the trial which, based on the undisputed material facts, are without legal merit. Id. at *3 (“Its purpose is to ‘frame and narrow the triable issues’”).
Also contrary to Defendant’s assertion, Plaintiff’s motion is not an untimely motion to strike. It does not challenge the sufficiency of Defendant’s pleading of his affirmative defenses, but rather their evidentiary sufficiency under applicable law, and is thus properly raised by a motion for partial summary judgment after reasonable time for discovery. Wilson, 2003 WL 21961359, at *4 (“[P]laintiffs do not attempt to show affirmatively that these ‘defenses’ lack merit. Rather they essentially argue that [Defendant] cannot support any of them. A party may properly seek summary judgment by essentially throwing the ball into the court of the party with the burden of proof.”). Plaintiff’s Motion for Partial Summary Judgment is timely, according to the schedule set by this Court.
Nor does Plaintiff improperly seek to partition a “claim.” First, the Federal Rules of Civil Procedure allow summary judgment on part of a claim. Wilson, 2003 WL
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21961359, at *4. Further, Plaintiff’s motion does not really address part of a “claim for relief.” Rubin, 408 F. Supp. at *4. Defendant has not filed a counterclaim; he has raised affirmative defenses. These defenses seek to defeat Plaintiff’s entire claim for relief. They are thus properly the subject of a motion for partial summary judgment. Petroff, 2006 WL 2938666, at *3 (“Although there is reasonable debate on the propriety of granting partial summary judgment on a motion that seeks to dispose of less than an entire claim, the court finds that Rule 56(d) permits the disposition of a motion for partial summary judgment on an affirmative defense.”).
2. Defendant’s “Ripeness” Argument is Frivolous, and His “Integration Mandates” Discussion is Irrelevant to the Pending Motion. In his second argument, Defendant asserts that “Plaintiff’s Motion Is Not Ripe
For Adjudication By This Court.” Under this heading, Defendant’s brief oddly wanders into a discussion of the viability of Plaintiff’s cause of action, which is not at issue in the instant motion, and asserts that Plaintiff has “abandoned” his claims under the ADA and the Rehabilitation Act by relying upon the “integration mandates” of the regulations.
First, for the reasons stated above, Plaintiff’s motion is not premature. The myriad courts that have entertained motions for partial summary judgment on affirmative defenses do not hold trials on the plaintiff’s claims before considering whether to grant a motion for partial summary judgment on the defenses. Rather, for the purpose of the motion only, they treat the plaintiff’s claim as if it were meritorious and then move on to evaluate whether the defenses would bar the claim. See, e.g., Holden v. Balko, 949 F. Supp. 704, 706 (S.D. Ind. 1996) (“[F]or purposes of deciding the plaintiffs’ motion for summary judgment on this affirmative defense, the court will assume (as the defendants
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assume for the purposes of pleading the defense) that plaintiffs can prove the essential elements of their . . . claims.”).1
Defendant’s contention that the motion is not “ripe” because the allegations have not been established as facts is not supported by any case law. Indeed, it is contrary to existing case law. Wilson, 2003 WL 21961359, at *4. (“[Defendant] argues that the motion [for partial summary judgment on affirmative defenses] is premature. It most decidedly is not.”).
Defendant’s “integration mandates” argument, however, is premature, because it goes to the Plaintiff’s case-in-chief, which is not now before the Court.2 Defendant states that the Court will have to decide “whether Plaintiff has a claim under the pertinent rules,” and will have to “resolve whether the rules exceeded the authority granted by Congress.” (Def’s Resp. to Pl.’s Mot. 6 ). That may be so. But the Court need not decide those issues in the context of this motion, and it would be inappropriate for the Court to do so. Neither Plaintiff nor Defendant has moved for summary judgment on Plaintiff’s claim, nor has Defendant moved to dismiss under Rule 12 (b)(6). The sufficiency of Plaintiff’s cause of action is thus not before this Court at this time.
1 This is why it was appropriate for Plaintiff’s Rule 56 Statement of Material Facts Not in Dispute to recite as “facts” the filing of the Complaint and the existence of certain allegations within it. By referring to the undisputed fact that certain allegations were made, Plaintiff placed his motion on affirmative defenses within the context of his claims, so that the Court could properly address whether the defenses would defeat the claims if and when they were proven. 2 It is also plainly wrong. Plaintiff’s cause of action is clearly based upon his rights under the ADA and Rehabilitation act as those laws have been implemented and interpreted by regulation and interpreted by the courts. See, e.g., Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004); Sidell v. Maram, No. 05-1001 *(C.D. Ill. May 14, 2007); Fisher v. Maram, No. 06 C 4405, 2006 WL 2505833 (N.D. Ill. Aug. 28, 2006).
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3. Defendant has not Met His Burden of Demonstrating Through Evidence and Legal Analysis a Genuine Issue of Fact That is Material to the Affirmative Defenses at Issue in This Motion.
a. Plaintiff Has Met Its Burden As The Moving Party In his Motion for Partial Summary Judgment, Plaintiff analyzed, in the light most favorable to the Defendant, the expert report that Plaintiff expects Defendant to offer in support of his affirmative defenses, on which the Defendant has the burden of proof. Plaintiff has contended that there is an absence of admissible evidence from which a reasonable trier of fact could conclude that the defenses have been established. Specifically, Plaintiff asserted in his motion that, even if the Report’s factual determination regarding the number of persons who would seek additional benefits is accepted for the purpose of this motion (it is otherwise disputed), the conclusion that the State would incur massive costs if David Grooms obtains relief in this case is not supported by admissible evidence because the report did not address the impact on benefits of the federal legal requirements of cost neutrality and medical necessity, neither of which David Grooms seeks to dislodge.
This is more than sufficient to shift the burden to Defendant to show that there is admissible evidence demonstrating a genuine issue of material fact requiring a trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (Rule 56 does not require moving party to “support its motion with affidavits or other similar materials negating the opponent’s claim”) (emphasis in original).3 As Judge Kennelly stated in Wilson:
3 Nor does offering Defendant’s evidence for review and evaluation in the context of the instant motion, or treating it in the light most favorable to the non-moving party, constitute a waiver by the moving party of any objections to the admissibility or weight to be accorded the evidence at trial. Indeed, the Court is required to view the evidence in the light most favorable to the non-moving party, so the moving party is called upon to do so as well. See, e.g., Wilson v. Sundstrand Corp., Nos. 99 C 6944, 99 C 6946, 2003 WL
6

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A party may properly seek summary judgment by essentially throwing the ball into the court of the party with the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). When such a motion is made, the nonmoving party bearing the burden of proof on the particular issue must “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.” Wilson, 2003 WL 21961359, at *4 (emphasis supplied).
Accordingly, all of Defendant’s arguments that depend upon the “failures” in Plaintiff’s motion miss the mark. Id.
Ultimately, the Court must determine whether a reasonable trier of fact could conclude that the party with the burden of proof—here, the Defendant—has presented sufficient evidence which, if believed, would, under applicable law, entitle that party to prevail on those defenses. Id. Defendant has failed to meet this burden.
b. Defendant’s Has Not Proffered Affidavits or Other Admissible Evidence That, If Credited, Would Establish A Fundamental Alteration or Inequitable Burden Defense.
This is a single-plaintiff case. David Grooms seeks a determination that the reduction of his benefits when he turned twenty-one violates the integration mandate of Americans with Disabilities Act and the Rehabilitation Act, as interpreted by the Seventh Circuit in Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004). He also seeks an injunction requiring the Defendant to pay him benefits sufficient to care for him adequately in his home. Plaintiff has sought no relief for any other person, nor has Plaintiff even claimed that there are many others whose conditions and situations are sufficiently similar to his own as to require the same relief.
21961359, at *1 (N.D. Ill. Aug. 18, 2003) (“[I]t is not at all improper, nor is it uncommon, for a [moving party] to base a summary judgment on the [nonmoving party’s] view of the evidence. Doing so does not require the [moving party] to concede the evidence’s admissibility or to concede for purposes of trial the truth of any of the [nonmoving party’s] contentions.”).
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Defendant, however, has claimed that providing Plaintiff with the relief he seeks will necessarily fundamentally alter the State’s Medicaid program. The Menenberg Report suggests that it will do so because the State will have to lift the Service Cost Maximum (SCM) (also called the “cap”) on benefits to every person who asks, at devastating cost to the State. Yet David has asked for no such thing. Moreover, even if Exceptional Care Rate caps were eliminated, and SCMs were lifted for everyone, the Menenberg Report does not support a conclusion of fundamental alteration due to cost. It does not even address the impact of applying the requirements of cost neutrality and medical necessity on his predicted flood of requests, much less demonstrate how the costs would be incurred notwithstanding required proof of medical necessity and cost neutrality.
Absent analysis of those mandatory factors, the Menenberg Report does not constitute evidence that the State will incur massive costs if David prevails, and thus does not suffice to demonstrate a genuine issue of material fact warranting a trial. Accordingly, it is incumbent upon Defendant to demonstrate that there is other admissible evidence to prove that relief to David will result in crippling massive benefit payments to others. There is no such evidence.
Defendant has offered no affidavit from any State official asserting that the State will lift, or not enforce, the SCMs of all others if David prevails (a premise of the Menenberg Report that lacks any foundation). Nor has Defendant offered an affidavit of a State official declaring either: 1) that in the absence of a cap the State will ignore the requirements of cost neutrality and medical necessity in every case or 2) that every recipient who seeks additional benefits will be able to establish that the services he or
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seeks are medically necessary at a level equivalent to David’s (whose condition is alleged to be complex and extreme), and that such increased benefits will be cost-neutral to the State when contrasted with the appropriate institutional setting for that individual. See Radaszewski, 383 F.3d at 602.
Moreover, because David is seeking relief based on a violation of the ADA and Rehabilitation Act, relief to him could form a basis for changes in the State’s programs only to the extent that those programs currently result in benefit levels to others that are in violation of those laws. Nothing in the Defendant’s evidence suggests that Defendant believes, much less has evidence to prove, that many other Medicaid recipients are being underserved at a level that violates federal anti-discrimination laws.
What Defendant has offered is, at best, a promise to come up with something at trial. He offers the Affidavit of Barbara Ginder, Bureau Chief for the Bureau of InterAgency Coordination, Illinois Department of Healthcare and Family Services (HFS). (Def’s Resp. to Pl.’s Mot. Ex. C). Attaching a true copy of the current Persons with Disabilities Waiver, Ms. Ginder’s affidavit simply states: “[I]f called to testify at trial, I am competent to testify regarding the PWD Waiver provisions, and whether any material changes in the PWD Waiver would constitute fundamental alterations of the PWD waiver.” Ms. Ginder’s affidavit does not even state what side she would come out on regarding fundamental alteration were she called to testify, much less set forth the substance of such testimony. The affidavit is worthless to demonstrate the existence of a material factual dispute.4
4 Moreover, to the extent Ms. Ginder would address only how the Waiver itself would be “fundamentally altered,” as suggested by Defendant’s Amended Answers to Plaintiff’s First Set of Interrogatories (see p. 15), this would be insufficient as a matter of law to constitute an affirmative defense. As Judge McDade opined in Sidell v. Maram, No. 05-CV-01001, at *20 (C.D. Ill 2007), the State controls which boxes are
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Nor do the other “evidentiary pieces” invoked but not detailed by Defendant— Mr. Werner’s documents contained in Exhibits A and B and Menenberg’s Rebuttal Report—demonstrate a genuine issue for trial (Def’s Resp. to Pl.’s Mot. 13). Defendant does not explain how they address the fatal flaw pointed out in Plaintiff’s motion—the impact of applying the requirements of cost neutrality and medical necessity on the predicted flood of claims. Nowhere in these exhibits do witnesses explain how relief to David Grooms in this single-plaintiff case, which could come only as a result of this Court having determined that David’s benefit level otherwise violates his rights under the ADA and Rehabilitation Act, would require the State to abandon its program with regard to everyone else. Federal law requires the state Medicaid agency to certify that it will refuse to provide benefits that are not cost-neutral relative to the appropriate level of institutional care. Even more significant, Medicaid benefits are payable only when medically necessary. Absent a showing that payment to “all other persons” (Def’s Am. Answers to Pl.’s Interrogs. at p.14) would meet these the tests of cost neutrality and medical necessity, Defendant’s cost projections are completely unsubstantiated and are therefore insufficient to defeat a motion for summary judgment.5
Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to
checked off in the waiver application. Medicaid offers other choices right on the form. Defendant’s selection of “nursing facility” as the only comparable institution, and its failure to check the “private duty nursing” box, are clearly not actions that are fundamental to the program, since other choices are offered in the Medicaid program itself. 5 To the extent that Defendant still maintains that it is a fundamental alteration to the State’s Medicaid program to have to modify its application to include hospitals as comparable institutions to the PWD waiver, this has been rejected by Sidell as a matter of law and should be rejected here. Of course, once the application is amended, or modified for certain individuals such as Plaintiff, Defendant would not have to “violate” the cost neutrality certification requirement because the cost of the appropriate comparable institution would easily exceed the cost of in-home nursing services. (Def’s Am. Answers to Pl.’s Interrogs. 15, Ex. A).
10

Case 1:06-cv-02211 Document 79 Filed 06/29/2007 Page 11 of 11

establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. The time for Defendant to do so is “now.” Wilson, 2003 WL 21961359, at *5. Defendant has failed to make a sufficient showing as to an essential element of his defense: that the State will incur massive costs in its Medicaid program if Plaintiff were to prevail in this singleplaintiff case. Accordingly, based upon the applicable law, Plaintiff’s motion for summary judgment on Affirmative Defenses 1 and 2 should be granted. Radaszewski, 383 F.3d at 614; Sidell, No. 05-CV-01001, at *24.
WHEREFORE, for the reasons stated herein and in Plaintiff’s Memorandum in Support of his Motion for Partial Summary Judgment, Plaintiff’s Motion for Partial Summary Judgment on Defendant’s Affirmative Defenses 1 and 2 should be granted.

Respectf /s/

ully submitted, Karen I. Ward___________ One of the Attorneys For Plaintiff

EQUIP FOR EQUALITY Karen I. Ward (312) 895-7330 Byron L. Mason (312) 895-7338 20 N. Michigan Ave. Chicago, IL 60602
11

 
 Case 1:06-cv-02211 Document 119-2 Filed 09/04/2007 Page 2 of 26

Signed:

Expert Report
UI
Samuel S. Flint, Ph.D.
May 7, 2007

I

-I

Grooms v. Maram United States District Court for the Northern District of Illinois
Ulvil NO. Ut; U Z?1 1

Case 1:06-cv-02211 Document 119-2 Filed 09/04/2007 Page 3 of 26
REPORT of SAMUEL S. FLINT, Ph.D
David Grooms v. Barry S. Maram, No. 06 C 2211, United States
District Court, For the NofrlthIhVieiirnInInIDistrict of Illinois, Eastern
May 7, 2007
INTRODUCTION: I have been retained as an expert witness by counsel for the plaintiff to express opinions on the March 19, 2007 report of Mr. Todd Menenberg and his team from Navigant Uonsulting, mc, rematea to tne case oi uv'u iuutii v. Barry S. Maram, herein after referred to as the Menenberg Report.
I hwc hn sktcI to critjaue the accuracy of the report's cost projections and the methodology by which these projections were derived, and to comment on the Medicaid policy issues relevant to this case.
PROFESSIONAL U—UALII-R—.A—1—Iu...r—J':s.i-—na--—ve speni. WOW Uldil u yi
fields of child and adolescent health, health policy, and health economics. My academic credentials relevant to this issue to which I am reporting to the Court inritid niihlished research in a half-dozen peer-reviewed lournals as well as several technical reports and white papers, the majority of which deal specifically with the Medicaid program. I also have authored five textbook chapters on the topic of health care economics.
Currently I am an Assistant Professor of Public Affairs at Indiana University Northwest where I teach statistics and graduate level courses in health cnnnmics and health Dolicv. I have also held adjunct faculty appointments at the University of Chicago, beprtment of Pediatrics and North Park University, School of Business and Nonprofit Management where I taught health economics and health policy.
Among other relevant professional experiences, I served as the State of Illinois' Medical and Healthcare Services Portfolio Manager in the Bureau of Strategic Sourcina and Procurement in the Department of Central Management Services from March 2004 to July 2005. I also have training and experience in long term care field and held a long term care insurance producer's license issued by the llllnois Department of Financial and Professional Regulation between 2002 and UUb.
I have an earned Ph.D. from the University of Chicago, an M.S.W. from Florida State University, and a B.A. from the University of Rhode Island.
A curriculum vitae is appended which further details my professional background.
1

Case 1:06-cv-02211 Document 119-2 Filed 09/04/2007 Page 4 of 26

CRITIQUE OF THE MENEBERG REPORT ESTIMATES
Mr. Menenberg was asked by counsel for the Illinois Department of Healthcare and Family Services (HFS) "to quantify the economic impact onthe cost of the
'.. State's current Persons with Disabilities Waiver program, assuming the Grooms'
were to prevaU on their request tor adthtioflai nome nursing servi iui LJdvIu and other individuals were then also able to access additionalwaiver services." (Menenberg Report, page 6)
As will be detailed below, these cost projections are not just incorrect. They are misleading in the extreme since they were derived by unsound research methodologies and based on invalid assumptions regarding the Medicaid program.
Mr. Menenberg was asked to examine two potential Medicaid populations: (1) irrnt fcr'iIitv rsidAnts who ootentiallv would move from skilled nursing facilities
(SNFs) to community-based settings and receive services through the Persons with Disabilities (PWD) waiver program: and (2) current PWD waiver recipients who use services at a cost less than their "Service Cost Maximum" (SCM).

Group 1--Current SNF Residents

PRflRLEM 1: The Menenberci Report uses an incorrect extrapolation prOCeSS that quintuples the potential upper bound cost projections.

The Menenberg report patients, tile Minimum

used uata-

th-eIif.VedlIreU(r'a)\ lldySmSaInIdItaItIeLd,,

periodic census 4L-..- IIIUUIIIIIL

of SNF L'.J

determine how many current SNF residents could return to the community should

the Medicaid program entirely eliminate the SCM cost cap now in place. The

hnicA of this data set to make that estimate is quite reasonable since it contains

three specific questions regarding SNF residents' desire and potential to return to

the community and is asked of every single SNF resident insured by Medicaid

and/or Medicare.

The Menenberg team contends it has identified 1,100 PWD beneficiaries among the 9,271 SNF residents who would leave SNF care and would increase state
Medicaid costs by determining which residents: (1) stated they wanted to leave their SNF; (2) stated there was a person positive towards their discharge; and (3) were expected to be discharged more than 90 days from the date oftheir
participation in the MDS survey.

The MDS is a credible source for gathering that type of information as it is a

comprehensive census. However, a census is not a representative sample. It is a

survey for which every member questioned. As noted in the first

of a population under consideration chapter of undergraduate statistics

is textb- ooks

(Fox, 2003) a census is quite different from a sample. Findings gleanedfrom a

2

Case 1:06-cv-02211 Document 119-2 Filed 09/04/2007 Page 5 of 26

census are referred to as population parameters, and they are noted in research findincis usinq Greek letters so as not to be confused with sample statistics.

In the absence of a census, population characteristics are derived from inferential
satnaatisrtiecpar-l—ete—ssetsrupaeirivfoerimiseMd uonltiawneapiipyreoippriUatJe•UlylLdIrtaJwIfInrriimsuaiimi*,VpklVet,I-olkIfLs+IIukfLftiIcI'mieIInJrtIuisivzvec
taken. Statistics are noted in research reports using English letters, so they will
not be confused with census data/population parameters.

Standard research practice does not permit taking a nonrandom subset of a

census and treating it as if it were a sample. Thus, extrapolating the responses

from the subset of the surveyed population that answered questions of interest to

survey riuiiiespui iuei IL vvi tu i lc1v II ciuy Lici

LI

V_.I y ''c" I

questions but did not provide full information is a violation of the most

fundamental rule in statistical analysis. Yet this is precisely what was done in the

Menenberg Report. Only if Mr. Menenberg obtained a random sample of MDS

records of sufficient size and representativeness, would he and his team have

been justified in the extrapolation used to generate their cost projection.

LL EI1 XpIdII I LI ie IuyI'..i,-u-;i.i-ii-itu+ukikI 'I,drrL1i c',iridiufrI,cc4?.,+i. r,iiiiI.c.,j+LhI IfLr,crfcn hcrc. ,II,r,Qt
researchers cannot pretend to be mind readers. They are not permitted to fill in

missing data for survey respondents in either a census or a sample. In fact,

response rate is a standard criterion used by reviewers to determine the validity

of a research report since it is understood that some amount of missing data is a

part of virtually all research efforts. Whether a census or a sample, researchers

cannot surmise IS SillIlidi ILIe III

UhoIuwILa'9nIyoprteisi_p,oo,nr.d.fneh.nIrttsI

would i

.a.+nirist rwremr arqruheIsctioruniecvfiernrcif

hth,teuirItbhasis

status, or any other factors that would appear to demonstrate comparability

between the respondents and nonrespondents. Such a technique is not standard

practice and would never pass peer review for journal publication or presentation

at a scientific meeting.

Second,
tei iu i

researchers are not permitted
+LI r+ +LhIkII'riIr'r-,'-t9i-n' iIi•i"k-'

nt'-o'

itrakecrannrsI.'w—cne.'.rtsIifrio1mrna,nnyrnsirznems. .ubcsime. t nofl

and draw conclusions on the larger population since such a process is inherently

fhr . biased. For instance, a researcher could sample a small fraction of 1% of the

entire U.S. population and make estimates about the U.S. population, (e.g., one

in seven Americans are Latino) Or, a researcher could do a complete "nose

count" like the U.S. Census Bureau undertakes every ten years, and one would

fIuOllyIAeIxILper'cIft

to

obtain

the

same finding. But
nr1 ciccIlmp

a researcher cannot survey every
thir rsnnnss wrnild hi th same as

a census taken of the entire country or that their responses would match up with

the findings from a random sample of all U.S. residents, even if the sample size

were far smaller. The every-other-state techrque could have perhaps 50% of all

Americans responding, but there is no way ot Knowing IT me peopie in me

surveyed states are different from those in the non-surveyed states. For instance,

3

Case 1:06-cv-02211 Document 119-2 Filed 09/04/2007 Page 6 of 26

if picked alphabetically and Alabama was included and Alaska omitted, the national estimated count for Aleuts would be underestimated.

Only from a sufficiently sized random sample, where all members of a population
drw InfrnfiI under study have an equal chance of being selected, can you draw conclusions
ana m- - a- ke- esuuties iyuiuitiy uie pupuiiiui lILlill VVI lILl I IL;+ VV Lii cvvI I. Ii iti
statistical tests are designed to make accurate estimates about a population from
a subset of their members. However, this is entirely different from guessing nonresrondents' answers in a census by proportionately extrapolating from respondents who completed the part of the survey section under study. If you ask the full population, estimation techniques are no longer needed, as there is nothing to estimate. Since you have asked everyone, you have the exact answer.

Yet violating this simple premise is precisely what Mr. Menenberg did. Here are his words. "...we observed that a number of the Medicaid nursing facility residents under age 60 did not respond to all three questions. Assuming that these non-responding individuals would have answered the three questions in a similar manner as those who did respond to all three questions, there would have
bdUeeUnV..a)...p..pIrIoIIxii'm.Jiaete, l1y011,110J,U0-• IMJOedOicOai0d1rmleilsyIidcIeIntIs,c(iinccIluII dIChilnVigcJLt'dh_,eIfr121m1116i1rirn1div+1.1idhufals
approximately 1,100 current nursing facility residents would potentially move from nursing facilities into the community and be served under the Persons with
Disabilities Waiver were the SCM limitations removed." (Menenberg, pages 9-10)

No table or data were presented in the report to show how Mr. Menenberg derived his total of 1,100. However, in his April 10, 2007 Deposition1 (page 109, III I 'L)..II)\I II-a.-a L+'.+J ,L'I-I1CI+LkI+L.I7JLJ')'Q.J IQ'I ItI rI e,dILclLr.I+I Lc'.d.4iIdLl Irr+ 4 I I WV Ll+I ht fIir.JQI. f'1nLil .iLcl firri regarding whether or not they wanted to leave their facility. These nonrespondents had answers to these questions assigned to them in the aggregate by the Menenberg team. That is roughly four-fifths of the entire
population of 9,271.

drfirI , Were the nonrespondents different ,mI I,Ld1+LhI ILf +LIhI'.c. ',RJ'JflI0ULWV'..... ..

frofmr ththce9rfel°s/,pA.o.n!,h.d-re.rnctns?nnMrri.r1MfeinilelunbHerngAjuI\sItr

the population under scrutiny has enormous variability, as noted by the ADL

variability on page 11 of the report. Extrapolating from SNF patients verbal

enough or otherwise capable of revealing their preferences to the nonresponding

group, which surely comprised a larger proportion of patients with dementia and other more severely debilitating diagnoses, is absurd on its face and typifies the

tdycpecroif"r—ds'—elferctiofnnbiivarsit1hartirnacntdomization and other sampling techniques are

We do not know why the questions were not answered by the respondents. However, the fact that four out of five respondents did not answer all three of the
pertinent questions tor this government-manciatecl data collection process is curious indeed. Mr. Menenberg did not report on the nonresponse rate of other

4

Case 1:06-cv-02211 Document 119-2 Filed 09/04/2007 Page 7 of 26

MDS questions, so we do not know how many other sets of questions were not answered fully by 80% of the respondents. But if this is a typical nonresponse rate, the well-regarded MDS data set would not hold the value it does for federal and state government quality control agencies and others who rely on its
accuracy and completeness.

There also is a question as to whether Mr. Menenberg's team adhered to their

own selection criteria. The Menenberg Report sought to exclude SNF patients

who were scheduled for discharge within the next 90 days. Yet 1,937 of 9,271

patients in the universe under study indicated that their discharge date was

"uncertain" by answering question Qic with a "3" (Bates number NAV 001342).

Stating IIUIII LI

that ie i

th,e.—diV,sscI hI LaIrgIJeUdjI,a,IktIeLi+wI.,aJUsIIuUtlnIcIeQrVtaciInIIIr'.dwJivdivd'nJofI'ttJreI IxiIrcrIl.'u,II.Ld.leio'.JitrhIreI Fse"1r1ien"'s+' pcoAn,dher'nts

were in fact going to be discharged within 90 days. This is not a trivial issue since

we know that nationally 68% of SNF patients are discharged within 90 days

(Hendrickson and Reinhard, 2006).

This aspect of the analysis raises yet another methodological question. It calls into question whether the final 216 cases overestimates the number of SNF
JJaLII IL VV RJwVeVtJ,Lt1iIcL41 VIt,IcI rILiIrLtWc+.lJ+i,ICt1AtIrCrAiCAtI 'r if fhc hrlc•a',f•if•Q rkrtc frr t—rmmI tnih,_
based care was unlimited by SCM cost caps. As noted above, just 21 % of the entire group were designated as "uncertain" with respect to their anticipated date of discharge, yet 89% (193 of the 216) were categorized as "uncertain" since they answered "3" to Question Qic (Bates pages HFS 9077, 9087, 9097, 9107, 9113, NAV 1326). Just 23 (one-quarter of one percent) of the 9,271 potential SNF residents who could become PWD beneficiaries satisfied the Menenberg
r;.—r—r-.+c IfLi.illklyi.
Surely, some of the "uncertain" group included SNF patients that would be leaving in 90 days or less, but it was unknown at the time to the survey taker. Since there were more than four times as many discharge time listed as "uncertain" in the 216, logic would point to a reduction in the number proposed in the Menenberg Report, perhaps by a factor of 68% for reasons cited above.

Here's what we know. All 9,271 SNF residents potentially eligible for the PWD waiver were asked if they wanted to return to the community. At most 216 (2.4%) want leave the SNF and believe that someone in the community was "positive towards" taking them in.

Tf-wco-ihinunr'dtrtehd-tstixhte2e1nA, nmotv1,h10r0n,nissitdhrehalvbsionlful2tetecdeilAinsg,naontdetdhehroevisegsooomd reeason
patients may have been on their way out of SNF care already under the current rules since nearly nine out 10 fell into the "uncertain" discharge date category.

We also have no idea it the aiiege person positive towaras aiscnarge was prepared and capable to do what is necessary to complete the transfer of the

5

Case 1:06-cv-02211 Document 119-2 Filed 09/04/2007 Page 8 of 26

patient from the SNF to the community. No one from the Menenberg team interviewed anyone to determine if this may have been wishful thinking on the
part of some of these SNF residents.

Every single SNF patient who could potentially be eligible under the PWD waiver
was asKed, and me uoUit n-as r-n. er respon—se. i ri uppel uuuiiu iyuie u ui
likely less than that. Hence, the Menenberg Report estimate of the size (and estimated incremental added cost) of the group of potential PWD beneficiaries must be reduced by more than 80%.

Problem 2: Community care cost projections were derived from a skewed, sample, drawn by an invalid method.

In order to estimate the cost to serve current SNF residents who the Menenberg

team assumed would be opting for community-based care, they attempted to

construct what is called a stratified sample with 28 cases. A stratified sample is a

type of sample that divides a population into designated subgroups in the same

proportion that they exist in the larger population. In this study, the subgroups

were supposed iimitauons- Or T

,to-cmuvirir—uoe_rcsthro-e't_l.uaargueyr:.Lp..oI"VpIIuIAIlar/tI-iwo\ nL)of.e2y1u6IIweibthwreIIskp..eIIctetiovetheir

proxy to capture service need. However, the sampling process employed by the

Menenberg team violated two fundamental rules of statistics.

First, a stratified sample must also be random. (Sullivan, 2005) That is, for each

of the groups that the researcher wants to be certain is represented in their

sample, cases are selected on
rana—om— —sI eieuuuii, ss 101

LaIrIal nLdIoLmIIlbUasIuisIpfroI mvveIaJ"c,uhucuatueIgIIoLryII.yRather

than

(page 10, Menenberg Report). Nowhere is this unprecedented sampling technique explained or justified, and observing the outcome of this technique

demonstrates that, as would be expected by a research methodologist, it failed.

The 'judgmental" process resulted in a sample skewed toward a much sicker

' p0j than
LI1dV

average population. Three of the 28 cases, roughly 1IIII OCI' NK Ir i..i e JdIU IUI UI IUI L1I kI ,L".EAlIJLILl 1r0.1I 'C...'0I

10%
EI )

o"f(tLhe

sample,

NAV 706 and NAV 1378). The Exceptional Care rate, as its name implies, is a

higher reimbursement rate required for the sickest 1% of SNF patients. Because

the MDS is a census, we know for certain that just 540 of the state's 47,624

current SNF patients qualify for this outlier rate category. (Bates NAV 639 and

1293). Thus, this extremely unorthodox sampling process resulted in cost

prolections made LI I I LI-Lai, a- i

fIrIoImImL_ri Iar

+sLaIhLm.4n11plIeIfLltIhfIr.a.ItII overrepresented

exceptional

care

rate

To grasp just how unlikely it is that three of the state's 540 Exceptional Care rate
patients (out of a total of 47,624 patients) wound up in a sample of 28 cases, I calculated the probabiUty for the Court. It is .0003. Or stated another way, a researcher using the conventional random sample process would expect to take

6

Case 1:06-cv-02211 Document 119-2 Filed 09/04/2007 Page 9 of 26

3676 random samples before one would result in the same representation of Exceptional Care cases as the Menenberq's 'udqmentaI method."

In addition to the overrepresentation of exceptional care rate cases, 7% of the

--- /--.- MAI s"U1a'm.lU' prUrl9eIO(twUoLtLIo:1.f.I.I2RI8VA.Ic-U.aAIs:U-e.:d.s.JI)UlisptdeydHMIeeldILic. aioreLeas

their

payer with a Daily Rate of rF-v I7uflu1 a,-i.l,u- NI'1IArv\/ IIQW7QJ)\.

Unlike Medicaid, Medicare pays 100% of SNF care only if a patient is discharged

directly from a hospital after a stay of at least three days. Those are the only

circumstances when Medicare pays full cost and that benefit is limited to a

maximum of 20 days. (Another 80 days is covered by Medicare for a partial

amount.) Hence, this 7% of the sample likely had greater medical needs than the

typical SNF patient since
Lueiuw dilU: iii iiu uiii

they vvi

wuei4yreI-IL,j-uI,JsLtI-3r-eI.-lLe.-Ia+1s0ke-1d.1.-frL'o)'fml ,4a-hIcoIIsfrLpcIilmttiaIlkILpcle0rIdrLh+Ca,lIIpIsI IJthCelLiIrdI+IaLy

care.

Since health care needs drives medical costs, these two factors surely inflated the costs of the 28 cases, and consequently the 216, as well as the hypothetical

1,100.

r I i_,uieiui ,,.• .au I I1JI
insufficient.

I,crl iril, +k ..r.II.iIfIl%it(III rI %VIIAI ..I ..riIrrccI,

The next major flaw in the sample used to estimate costs for this total population

of more than 9,000 patients is a grossly inadequate sample size. As concurred to

above, the process of creating a stratified sample using ADL5 as a case mix

hc rihf Aft rrr I hlQ nrn control is a reasonable way to proceed. In Table 2, page 11, there are 22
rf Ar\I tc,cIc Afli ,—rrg 7 .iOtOJLII 100 UI flLJL... I' VL#iO. flL..FL... ..J_F!.JI .t I I IL.flJ •_FII IL •.tI_ .aLJ, fl_F I_ .J'_FI '_ I I It_4'J I •!_Fl fl_F,

and the remaining 20 have one case. Thus, in 20 of the 21 ADL categories, there

was iust one patient found. "Cell sizes" with less than thirty cases are suspect by

researchers, but can be found acceptable in some instances. However, no matter

how constrained a sampling process may be, in no instance would findings be

regarded as credible if more than 20% of cell sizes have less than five cases.

(Fox, 2003). Here we have just one case for 95% of the categories. Such

?CA I I I I ."j

rh,irii IQR, nr-'f ci iffirignt tn rrcw rnndi isinns frr krrir nnnt iItinn S

Problem 4: Community care cost projections were made through a potentially biased review process with no quality controls to assure rater reliability.

ck r'r To estimate the cost of these alleged 1,100 SNF residents who could potentially i inr1r fh PWfl wivr Mr Mncnhrn nd eolleoiis rliM nn nnc

11, footnote 13). The unconscious desire of an employee to please their employer raises a question of bias.

7

Case 1:06-cv-02211 Document 119-2 Filed 09/04/2007 Page 10 of 26

A sound, scientific process to develop hypothetical treatment plans would be to hv n indeDendent arouo of two or three professionals asked to develop community care plans from the same data set that the career state nurse used.

They should not know why they are being requested to develop community-

based treatment plans, and they should review assure consistency ot process a-n-'a accurac- y.

isnasmwpuleu1si.u-io-yf.I-e-I-aClc-I-hd.—oieth-IdeC-rI.sIId'-IwU,-oI rk

to

estimates.

Summary and Conclusion Reqarding Group I Cost Estimates: The cost
estimate of $33 million using January 2007 rates was derived by unsound methodology and is vastly overstated. Just scaling back the four-fold increase
gaesniteirtawteedrefraomsaMmrp.ieMwenoeunt_abIeuI_rng.r'i_sgJeu.xiLetraupuostlaptiIounJebuyuuusI euuovfvacupoiupuplua.tiioiiinuipiiiaiir.ameter

Further reductions should be made since the 216 potential PWD residents that

believe they could reenter the community was not verified to determine if in fact

there is a willing person to care for them or that they would actually leave the

SNF if the question moved from theoretical to an actionable choice. More

rn tf importantly, the
since- U,-7no, na—a

majority of the a— ui:suLiiaiy UdL

2U1d6LmUaIIyLUbeøleUa-,IvI-Lin.IgLQinIsItIittuILti-oLnrVaVl LcAaILreI IaIInLyIwJaJy

M 1

patients are discharged from institutional care within 90 days.

The cost of care in the community was estimated by an unheard of sampling

technique that generated a sample so overrepresentative of Exceptional Care-

rated SNF residents, that such a distribution is expected to be found once in

kr fh cmI fr every 3,676 random draws. It also may have been biased by a career state

e- mptuy uuiiiueiui ly LII II ILILO JI I II t I

ii IIIy,

too small to meet the most minimum reliability standards used by statisticians or

actuaries.

If the Grooms' prevail and that is interpreted by the Courts as a mandate to
remove the SCM expenditure caps, my opinion is the upper bound cost estimate
rrrrf for Group 1 is certainly less than $6 million and perhaps even less than zero as I
-W- :iiull UlSL.U ueiuvv III LI ie IL '..L-I+JLI,-Ir .r-J-FI L+hI cI,I I I..

Group 2--Current Persons with Disabilities (PWD) Waiver Participants

According to Exhibit 2 of Mr. Menenberg's report, there are 26,189 PWD

beneficiaries who have aggregate monthly costs of $26,197,059. Annualizing this

monthly data results in an average per-beneficiary yearly cost of $12,004 and an

IyyI

t II IUI JI Jt cu ii r'r,C+ if q'1Lt miIIi(fl

With assistance from the state, Mr. Menenberg and his team used the data to provide four estimates for the Court. The first estimate isacalculationof all PWD
beneficiaries' costs assuming every 1-'VVU patient immeaiateiy sninea tneir care plans to a service level that would result in expenditures at their Service Cost

8

Case 1:06-cv-02211 Document 119-2 Filed 09/04/2007 Page 11 of 26

Maximum (SCM) cap. Estimates two and three were generated by adding 10%

nd 20% additional costs to the expenditure levels at the SCM cap. And a fourth

projection was derived by calculating the cost of services that would be incurred if each service plan were increased by I 96%, the difference between the cost of

services for David

tihna2tUthUebGurnocoiemrisn'Ierei—qfluA'veIvsfultewdaaivnedr.the

cost

of

the

service

plan

developed

This approach resulted in projections that the state could potentially be liable for nvwhere from $206 million to $310 million additional dollars should the Grooms' prevail, raising the PWD expenditure level from $314 million to $520 million to $624 million. Thus, by continuing to provide the current array of services for one
O/ + 000L d n extremely disabled young Medicaid beneficiary, the state's costfor the PWD
wawer popuaUOn woulu IflUWdS iiywiieie 110111 00/0 L'J // /0
unreasonable burden for the state. This is incorrect for several reasons.

First. with no reason cited in the report, the model assumes that medical

necessity standards will be eliminated from the PWD waiver. Menenberg

Report Exhibit 2 is entitled "Additional Costif Utilization Review Function

. . mReemroevpeodn--Pineursiuiot.ne.sLww..iiltLyh

Disabilities
ueiieiiii

Waiver"
-,.-,-

(ita*li,crsi

added). Yet
ild rr IrrrIr

at
k

no point does
QIIhiC'fd tn

standard utilization review and medical necessity guidelines. It simply assumes

that a consequence of a favorable Court ruling would change standard policies

and Drocedures deeply imbedded in Medicaid as well as every other public and

private insurance plan in existence and provides no explanation whythis policy

change would occur.

-

A

Ifl fliS 1343111

I.4

U,

.UU

L..epuILIuufDi i-c.,i-j

iQ, iQii uHcrcLIQ—_1I fl\

1IVAIrI.AIVIr.4I hI•rrJ1

rriin

"...as I understand it, if he [End prevails he's trying to ignore the SCM and just

get whatever services he asks for." On page 162, lines 2 through 6, Mr.

Menenberg states, "People given a choice of free services many times avail

themselves of that whether or not they need it. But if you say no utilization

review, no ceilings, no caps, whatever you want you'll get it, this is the

mathematics if you open those ceilings."

I would concur that the body of research evidence in health care financing

indicates that all other things being equal, an increase in either benefits and/or a

reduction in point-of-service patient cost-sharing should be expected to lead to a

marginal increase in utilization in all insured populations, including the Medicaid

populatiorL However, as I understand the case, at no point is there a request to

rr r'o Iik fl,id (rnrm eliminate all ceilings or SCM cost caps. And, exceptional care rates already exist

U.) cl(A.,UI HI I IUUL Ici

illS'. i_,'.. v ,s.. s.,,'.,'.,.

With respect to policy research in the specific field of long-term-care, concerns over the so-called "woodwork effect" has been examined extensively. However, the woodwork effect issue is related to a spike in costs wren states regin a
Home Care and Community-Based services (HCBS) program, when only

9

Case 1:06-cv-02211 Document 119-2 Filed 09/04/2007 Page 12 of 26
institutional care was previously provided. The concern is that non-paid, informal caregivers such as family and friends would reduce their free care and the statewould have to pay for services currently being provided at no charge. But this does not pertain to a population like the Illinois PWD group which already has in pce saUsfactory home care arrangements. No reading of the empirical evidence
uuuiu suppurt iie enormous spike in care assertea in me Menenerq Ieport.
The assumption that overnight, demand for care would increase by at least 66% has absolutely no basis. Previously uninsured oeoole aainina coveraae show no such increase, yet they are starting at zero coverage, and not with a fully functional care plan in place. Other evidence notes that in any population, including Medicaid, rougly one-fourth of beneficiaries in any given year use no
seivuue WIldLOV1 rIUbtII).
Not only is there no empirical evidence in the health economics research literature to support such a claim, simple lociic would eliminate this as a Dlausible outcome viewed from either the patient or the payer perspective.
• Why would people seek treatments for illnesses that they do not have? What otherwise healthy people would queue up for chemotherapy or heart surgery oecause TJiey couia gei sucn care TOl Tree(
• Why would any public or private insurance plan end utilization review,
concurrent review, disease management, preadmission testing, pharmacy
benefits manaciement. Drior airnroval for inoatient care. orescrintion drtin
formulary limits, and all the other carefully crafted array of safeguards developed over the past twenty years to control unnecessary utilization of services?
Finally, the experience in this state provides evidence that this should not occur. According to the Illinois Department of Human services (DHS) "Home Services Proqram 2004 Annual Rerort" (DHS. Home Services Proaram Annual Renort 2004, wwwdhs.state.iI.us/ors/dhs drs-hspar2004.asp), many current services are not used by PWD beneficiaries. For example, just 1 % (269 beneficiaries) used Home Remodeling benefits. The same report states that "a physician's approvai 01 me initiai plan oi care is requirea 101 any services. vvny woulci a favorable decision for the plaintiff change the status quo?
Other than a marginal increase in costs and care of perhas a few Dercent. medical necessity would continue to drive utilization, not amount, duration, and
_t scope of an insured party's benefit package. The assumption that 100% of PWD
beneficiaries would just demand free services and be allowed to receive them WILII MU IIIUIUdI UdI l IIULJUUIIU uy pilor puuIIsIIu wsedrun ana iiies in tne face of logic; and nowhere in the Menenberg Report or in Mr. Menenberg's deposition is there any rationale stated to justify the prediction of such an outcome.
10

Case 1:06-cv-02211 Document 119-2 Filed 09/04/2007 Page 13 of 26

Second, if utilization increases were to come as a result of expanded benefits, only 864 of the 26,189 current PWD beneficiaries could possibly receive additional benefits.

Exhibit 2 groups PW D beneficiaries into seven categoes based ontheSCMs. VVitflin eacn category, vvvu eneiiciaries are oroiceii uown iurur 11110 suosets
for each of the $100 incremental bands within the seven groups. Presumably all medically necessary services are currently being provided to all the PWD beneficiaries that fall in all but the top tier of medical costs for their expenditure
bands. Thus, the only possible group of PWD beneficiaries who could potentially gain new services are those beneficiaries who have reached the cap for their tier.
That number is 864, or 3.3% of the total current PWD beneficiary population.

Even that vastly reduced number of 864 is too large. The only PWD beneficiaries
who would have any chance of receiving expanded benefits are those who have
unmet medical needs, but are capped by the existing Medicaid benefit package. However, there is no way to identify the subset of patients who are in this situation with the data available in the report, so my estimate for the population who could have expanded benefits is less than 864.

Finally, it is unclear to me why any current PWD beneficiary would have their care plans change should David Grooms be permitted to continue his MFTD care plan under the PWD waiver.

Exceptional care rates are currently provided under existing rules to PWD

beneficiaries (Bates NAV 465-467), and DHS offered a care plan for David

..1UUF1IS dL d IdLe UI ,Od,'OO9OUA}!JeI 11101 ILl I, I I ioie LI Idi I IA4LI-I-I.0.U-.d--I1IU UUlldI

11101 ILl I

greater than the highest current SCM cap. Also, the Menenberg Report Exhibit 2 footnote states "38 individuals had projected monthly costs in excess of the

SCM." Consequently, provisions under current law apparently permit Illinois to

provide medically necessary care to this quadriplegic young man without any basis for a claim of additional services from any other PWD beneficiary.

0. . .... uIIIIuII V II..U. ..J 1' I.I..I..IUI!aJInICFa'%n I..I.J.u.IAI'.n.n'.JfltmJUu r fl (baeGLLCIrIb. • r'I'Lr ).I,InI1U4InIrInIJfl
the fact that exceptional, care rates are now permitted, my lowest estimate for

Group 2 is zero dollars. If there are special circumstances surrounding this case

that would allow it to serve as a precedent, fewer than 864 current PWD

beneficiaries could have existing unmet needs now paid for by the state. Since

there is no way to estimate the incremental benefits that would be added, I will

j r rrdr arbitrarily
I U /0 CII IU

Q'Jp'fJrlOo/0LpCo-ILs,eI.-U, tOhCaILt+IukIInJmLcC_aIkIpLrpI'reIrIIdLISI LCILMII LsUwtJroI LruIrVldrl,UiindlLc'cLrIe+Ia'..hs, .eJ('.eJ'rLxi4piIre+L nAVdV,i+IiLthuI IrLeIIsI rLbIrIreLlItcLwIrl e'.rJeIfn

magnitude estimate. A 10% increase for every toi tier SCM beneficiary would

cost the state an additional $152,124 and a 30% increase would cost an

additional $456,372.

11

Case 1:06-cv-02211 Document 119-2 Filed 09/04/2007 Page 14 of 26

Overall Conclusions and Estimates Using the Menenberg Model

Using liberal estimates to generate an upper bound cost risk for the state

for both groups I and 2, it is my opinion additional costs would be no more

than
an- a

$o6e.5wmieillAeio!nn'7tpil1iei r_ay.r.ejiua4r.iIi,Todhautt

is approximately 2% of
ui iviiiiiuty r\epoII.

current program
pIuJeIuoII ilIlye.

costs

In the following section I will present policy findings that could lead an objective observer to conclude that the net impact of permitting David Grooms and other SNF-directed Medicaid beneficiaries to remain in community-based settings may actually reduce total long-term-care expenditures for the state.
eyoriu me ivieiie,iueii FepUIL LIIIIW. vAvIiIi-yr. a..
Illinois Medicaid Long-Term-Care Program to Accommodate Grooms-like Beneficiaries in the Community Could Reduce State Expenditures

The preceding section of this report addresses the multiple, major flaws in the
process by which the Menenberg team generated incremental cost increase
I - k estimates for the state, should the Grooms position prevail. I believe the Court
WOUI .IJULU. 1II.tICIL...-1.101L11 IIdllIl 1lI0—LSI..IeI pI J,LIV t-,)-'I.I-' L44l,I,.IU QL luclulu uoI uuIj different assumptions than those used by the Menenberg team.

The defense based their model on health economics research that neither I nor

anyone else in the field would likely dispute, i.e., unlimited benefit increases (in

the absence of utilization controls and point-of-service cost-sharing) would lead

to some increase in utilization of medical services and commensurate cost

Illul

I I l iviei iei iuei y LdI it i .t-u._.,u-1 uI ti ii ii 1191-.iIu-4iyI,,Lu I LI l I..,L1OI. LlI I I1L OIl-bl,L-',.-,' II

believe they were derived employing incorrect assumptions and improper

methodology, but not the interpretation of the policy research evidence.

However, I do not accept framing the debate entirely by limiting the discussion to

the selected health policy research findings of the Menenberg team, and I would

r+rl like

the Court to consider

IUILUI e t.,i ii

•uit

another
kI ,I-Q.-Ill4IkI

p}JeLrIsupI.e.yrccIticvriecI 'h.rIeIgfIaIIrrIfd'lAirnIrIgtcpo'ccteI.'nvtViaI.l..slIytate

1JL''A Gl.

the points that buttress the Menenberg Report.

If the state of Illinois wants to contain Medicaid costs, it should reorient its lonciterm-care program from one which pressures beneficiaries, like David Grooms, to reside in SNFs to one which maximizes suitable home care.
;. -rhrc tn th IlIb-k 11111 I LI 10 10 p L II I C4 +LIhILc' IIrIrLrIJeI.f'JcVrkL'dI LdLcILrA1LQ".. tLh' fc in fh r'nv i.n.• frvJ .t&r'rnrrIinri
U.S. Census Bureau, as of April 1, 2005, Illinois accounted for 4.3% of the U.S.
population. (U.S. Census Bureau, Population Division, 2005). Yet the state accounts for 5.1% of the country's SNFs and 6.0% of the nation's SNF beds (AHCA, 2005). This disproportionate SNF capacity exists despite the fact that Illinois has a smaller proportion of the age 65 and older population than the rest

12

Case 1:06-cv-02211 Document 119-2 Filed 09/04/2007 Page 15 of 26

of the country, 11.9% vs. 12.1%, and a lower poverty incidence, 12.4% vs. 14.0%. two standard benchmarks for estimatinq SNF demand (AHCA, 2005).

The presence of excess capacity and the state's bias toward institutionalization is reflected in Medicare statistics. The proportion of Illinois Medicare expenditures
tor SNI— services br eaicare oeneiiciaries is irIo greater man me nauonai
average, 7.5% of total Medicare payments compared to 5.4% for the rest of the
country (AHCA, 2005).

It is too easy to be admitted into an Illinois SNF and too hard to get community-

based care. Patients are placed in SNFs in Illinois with fewer medical needs than

elsewhere patients is

in

the in

country. ititnois it

TisheirD. In—ra-Iit'Ai,o,I-nI,azluAaufvlore).,r4a1fglUfle/7IAo—Diu-L-w.de—erpILLeE..nl—ddUe—nmcILee..floidrLSIUNRFdII

average.

Another indicator that the Illinois SNF patient population has fewer medical

needs than their counterparts in other states is the fact that Illinois has the

absolute lowest proportion of Alzheimer patients of any state in the country with

34%. Thus,
compare-,a

two-thirds of SNF residents in Illinois are non-Alzheimer's
-to-i-e-si-s,- —m-a- In- _nIZai' i—nii_O——U1F siiis IIOUOU1,'EU%Ur\O,\ ). oiiiue

ipiiaettie:i.sntisiu

reason to suspect that Alzheimer's has a lower prevalence in this state than

elsewhere, this smaller proportion reflects a disproportionate number less

medically needy patients occupying Illinois SNF beds.

Despite this distinctly lower threshold of dependency for SNF residence, Illinois'
J 'Irc\ SNF occupancy rates are just 79.2% compared to a national average census of
,b,i.'4fl17oI. Iri—enoriutcson dRU rciiiiiuu, UUO). ITLI.I..U, L4Lil-e.- LdL piite FJIUIJOILIUIIdtIY more people in SNFs and still has proportionately more empty beds than most
states.

The state's historic tendency to institutionalize ranks the Illinois Medicaid

program 39' of 50 states with respect to its proportion of dollars expended for

community-based care. In FY 2004, W- - —eF— pdIU lco...t. U.U. tt.l-.I..I..lUl:Ii.I.L• y(--UbeU ie

UoInIIl.y}..)2c7*I%-U-AoLfUits

long-term-care expenditures
IILItJIIII V- ,,I-ø. .9-, .U- I .JO')( /00/ ,

which is one-third greater. More progressive Medicaid programs in states like

Oregon use 71% of their long-term-care expenditures for community-based

services (HCBS Clearinghouse, 2007).

For the cost of serving one patient in a SNF, Indiana reports that it can serve 1.5
pLeI oI pelIeyweitihvvcuomu mf.—u.n•.i,-t•yi—-i.bu--aI isediiloInygl -vteI rjmic-rc'',.aIrrIeIsVervi0ce0s;'r.JW'rII'mIaIIsmIlh_iIInl ligirLtij+on,_eksctdimIJaCte4sI.IIitIL
for the cost of one SNF patient (Summer, 2005).

The accelerating trend toward community-based care continues to gain momentum in both private and public sector health care financing systems since it is widely accepted that it improves the quality of life of patients, is desired by

13

Case 1:06-cv-02211 Document 119-2 Filed 09/04/2007 Page 16 of 26

patients, and is expected to result in cost savings, although the empirical
evidence to date is mixed. Nonetheless, private, for-profit LTC insurers generally require no waiting period for LTC services provided at home, but have 30 to 180
day waiting periods for benefits to begin for an institutional placement. Other states and the business community see the cost-containment benefits of commun—iy.---o- a'-—se—u—u-eI i_ie_, IJUI IHhtIOI WlIIdtI Idi L)IIIIIU

The federal government also has expressed confidence in the cost-containment

Dotential of community-based care. The Deficit Reduction Act of 2005 (DRA)

offers state Medicaid programs an enhanced federal match for states to work

with patients who have been in SNF5 for six months or longer to create plans to

ma- -n-o-vuI ert—cheelLsne.n_pd.arJtuie",rnrLt(sU\ oTUuLOt oF)f.\FintiseAtituurtiio-niisuainediiibuavcuk

to the community (Hendrickson
ui.-.i--U., IIIIIIIL 'J,-If -+-+,- b-..

produce waivers for community-based care and has removed roadblocks to

progressive plans like the "money follows the person" plans in Vermont and

elsewhere. Previous federal legislation even allowed states to waive federal

benefit "comparability" requirements to encourage states to move more rapidly

toward "rebalancing" as this popular strategy is called. (Shirk, 2006).

TILII i.eC.u-1ei dIl UVl ,I..-IIIII U l U I.Q,I4I—I, L.-,I+I1L-. +ji,—li,i'irwtimjiulIrLifiti_k ct4,c,I'l r

r I I IJi

that they have provided the financial incentives to states cited above despite the

fact that the Government Accountability Office (GAO) has reported to the

Congress that costs for other federal programs, (e.g., Food Stamps, SSI, housing subsidies) will increase when states shift their long-term-care populations out of

institutional settings (Hendrickson and Reinhard, 2006).

LJiIL clii LI

fyc't r I0'JI 01 III IOU l'..'l0l II II lId V LiJ rL,IdI II+LIh1¼.r, i'.i.LrIrI cI'.r,IfILfhLIrII,ILISinII IrIiII LI fISh, cI I..h,LcAIILfIhI

insurance community regarding the financial and other benefits to be gained by

pressing for community-based long-term-care services, Illinois clings to its institutional bias and is one of the slowest Medicaid programs in the nation to

adopt progressive changeS In researching this report for the Court, 14 states (IN,

WI, A, MI, OR,VT, AK, WA, MD, MN, CO, NB, CN, NJ) were identified as having

Pnhrd oLInIeOklolii4lrt fm11fro!,JrrIen11nQ.oJMtIe'IIw+oI-Lr)ftthhIIy'c...p,'J-i'rl.oJmItIImIpIIrLioIiInIjIeLifjc,\t%s(s.)oPhruiIrfIkIuSl,9l-bfllfolFwl-n1•pcIIrn.oAdIgfrlr#iarISkm.QJs!.n.#inntI IpnAl.ra..IaceI '.t#oIIIsIIIuapI port

2006).

The state's own published report (DHS, Home Services Program Annual Report

2004, www.dhs.state.iLus/ors/dhs_drs-hspar2004.aSp) indicates a savings from

the PWD waiver of more than $10,000 per beneficiary per year for each former

fh cnhcrri SNF resident who returns
pIL,uIIc. L_VII UI' IVIL,II'..,

to

PthnercroIm9Fm( unity

and continues to receive care
ci ihsf (Pvhihit I \ whirh inIi

at
i1r

exceptional care rate beneficiaries ten times as frequent as the overall

population, reported projected cost savings in 18% of its cases.

Wisconsin has set the goal ot reducing its SNI- population by 5'Yo in eignt years; and regional states like Michigan, Indiana, and Iowa are being cited for model

14

Case 1:06-cv-02211 Document 119-2 Filed 09/04/2007 Page 17 of 26

programs; and Connecticut is projecting savings of $35,000 per year per transitioned SNF beneficiary (Hendrickson and Reinhard, 2006). Why does lIinois focus on preserving SNF care and claim it is doing so to reduce Medicaid
costs?

ummay

1. The deep methodological flaws found throughout the Menenberg Report provides the Court with little reliable g- uidance with respect to potential future state costs.

.. ,. 2. There is no reason to believe that maintaining David Grooms' care plan in

uie rvAvI u .w. ._i.v:.t. piuy.t-.niu w. .IuIi uiiieiiuw uiet

iii

-, '-'

and all utilization constraints for other PWD beneficiaries will somehow

disappear.

3. The state of Illinois is unnecessarily overspending Medicaid dollars by resisting the widely accepted view that a community-based care oriented long-term-care program saves money, and the demand to place David J 01)11 l III 1 I"CJF'KIIIci I I Ie.,LIL)I I UI LI 4Icki-L,4'l,U-. LI I ILULI +LIkII.I-1Ir-\Ii,I-I,J,.

Disclosures

ComDensation: For my work, I will be compensated by Plaintiff's attorney at the

rate of $150 per hour.

1API L VVILI

r I IILUI y. LJUI II IJ+LiI-l rFrJ+QOFrLt IRr JUJ yaIi I IIc,v

ai I 'vrrf

witness in the following cases:

. March 2003 to May 2004: Memisovski et aI.v. Maram, et aI.92 Cl 982, United States District Court for the Northern District of Illinois, Eastern
Division.

• iviay LUUO L)IJdIIUIIId L.IltpLtI UI LII I-iIIeIILduI l-\IUtIuiy UI reUILII', tt

a!., v. Michael Fogarty, Chief Executive Officer of the Oklahoma Health

Care Authority, et a!. O1-CV-0187-CVE-SAJ, Northern District of

Oklahoma.

Provided written report, deposition and trial testimony.

• April-May 2006: Julie Sidell, Guardian for Gretchen SideD v. Barry S.

Mre_ca_rrea..ma.._r,yD-,irleuiiciirtol.u.r_losf

.j- Illinois Department of Public
UdIUI1Il1 uiI n1.u...t.-i.r..d. Cli' oivi.

Ai'iiduK;.Ci.u-a.u.rou'1l rLIV.r,AI.IldJ\ aO0m7fs, ,

Circuit Court of the Fourteenth Judicial Circuit, Whiteside County, Illinois.

Provided written report and deposition.

April 2007: Donna Radaszewski Guardian on behalf of Eric Radaszewski

v. Barry S. Maram, Director of Illinois Department of Healthcare and

15

 
 Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 1 of 35
Groàms
V.
Maram
ExpertWitness Report.
Signed: Todd D. Menenberg
Navigant Consulting, inc.
March 19,2007

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 2 of 35
Grooms v. Maram Expert Report of Todd D. Menenberg March 19,2007
TABLE OF CONTENTS
1. Introduction II. Background on the IllinoisMedicaid Program III. Nature of the Dispute IV. Scope of Work V. Process and Results
Exhibit 1: Additional Cost if IndividualsMove from Nursing Facilities to the Community
Exhibit 2: Additional Cost if UtilizationReview Function Removed —Persons with Disabilities Waiver
Attachment 1: Resume of Todd D.Menenberg Attachment 2: Testimony of Todd D. Menenberg Attachment 3: Documents Considered by Todd D. Meneriberg

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 3 of 35
Grooms v. Marani Expert Report of Todd D. Menenberg March 19, 2007
I. lntroducjon
This report was prepared by Todd D. Menenberg of Navigant Consulting, Inc. ("Navigant"). Navigant is an international
consulting firm providing litigation, financial and other services to clients. I ama Managing Director of Navigant. Iam a certified public accountant. I have provided consulting serviceson a wide variety of health care-related financial and economic matters, induding Medicaid disputes involving lost profits, damages, and economic projections. My experience is summarized inmy resume, included as Attachment 1.
A listing of cases in which I havetestified as an expert witness during the past four years is included as Attachment 2 to thisreport. My hourly billing rate in this matter is $180. I have no publications during the last tenyears. Navigant's work on this matter was performed by me or under my supervision.
Navigant has been retained by legal counsel for the Illinois Department of Healthcare and Family Services (HFS) toprovide expert testimony related to the cost and financial issues relevant to this matter.
I have considered certain documentsin forming the opinions containedin this report. A list of these documents is attached to my report in Attachment 3. My opinions have been formed based on the information now available to me. As additional information becomes available (such as newly produced data and documents, expert reports, and testimony) or additional analyses are performed, I may evaluate and consider that information. As a result, I reserve the right to modify or supplement my opinions.
-
Pagel

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 4 of 35

Grooms v. Marain

Expert Report of Todd D. Menenberg

/

March 19, 2007

II. Background on the Illinois MedicaidProgram
The Illinois Department of Healthcare and Family Services (HFS) is responsible for providing health care coverage for adults and children who qualify for Medicaid, and for providing Child Support Enforcement services to help ensure that Illinois children receive financial support from both parents. The Division of Medical Programs within HFS administers the Medical Assistance Programs, whichprovide health care coverage to low-income families lacking health insurance, children who are wards of thestate, low-income senior citizens, individuals with disabilities, elderly innursing facilities and people struggling with catastrophic medical bills.
illinois has a Medicaid State Plar approved by the Centers for Medicare and Medicaid Services (CMS) that specifies the healthcareservices available to all Medicaid eligible individuals. In addition to services in the StatePlan, illinois operates several Medicaid homeand Community-based (I-ICBS) "waiver" programs. Medicaid HCBS waiver programs allow qualified individuals to receive care in their own home or other community setting as an alternative to a nursing facility or other institutional seffing. Individuals in a waiver program have access to specifiedservjces that are not generally induded in Medicaid State Plans, induding services such as homemaker, personal assistant, andhome delivered meals, among others. In addition to these services, waiverrecipients are able to access Medicaid State Plan services, such as physician visits, hospitalstays, etc. For state waiver programs to be eligible for Federal matching funds, Federal regulations require that waiver programs be cost neutral, that is, services provided to waiver recipients must cost no more than services that would be provided to the same individuals were they to be served ininstitutional settings.
Physically disabled persons in the Illinois Medicaid program who require a nursing facility level of care generally receive services inone of two ways: 1) care is provided in a nursing facility or similar type of institutional setting;or, 2) care is provided at home or in a

Page 2

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 5 of 35

Grooms v. Maram
Expert Report of Todd D. Menenberg March 19, 2007

Community-based setting through an HCBS waiverprogram. Disabled children may receive services in either an institutional or an HCBS setting and are eligible to receiveadditional services through the Early Periodic Screening, Diagnosis, and Treatment (EPSDT)program. Under the EPSDTprogram, children can receive services that are not includedin the Illinois Medicaid State Plan, but that are deemed medically necessary for the child's treatment.
Illinois' Medicaid HCBS Waiver Programs
Illinois' Medicaid HCBS waiverprograms are administered by HFS as the Medicaid agency, but several of the waiver programs areoperated by the Division of Rehabilitation Services (DRS), a division of the illinois Department of Human Services (DHS).
illinois has seven HCBS waiverprograms:

Waiver
I) Medically Fragile! Technology Dependent Children (MFFD)
2) Persons with Disabilities 3) Persons with Brain Injury 4) Adults with Developmental
Disabilities

Level of Institutional Care Required by Waiver Recipients
Hospital / Skilled Pediatric Facility
Nursing Facility Nursing Facility Intermediate Care Facility for the Mentally Retarded

Operating State Agency
University of Illinois, Division of Specialized Care for Children DHS-DRS DHS-DRS DHS-Divisjo of Developmental Disabilities Services

ersons Who are
6) Persons with HIV or AIDS
7) Supported Living Facilities Assisted Living

Page 3

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 6 of 35

Grooms v. Maram

-

Expert Report of Todd D. Menenberg

March 19,2007

Following is a more detailed description of the MFTD Waiverand the Persons with Disabilities Waiver.
MFTD Waiver
The MFTD Waiver is for individuals underage 21. To qualify for this waiver, individuals must need a level of care equivalent to that provided in a skilled pediatricfacility
(licensed as an ICF/MR) or a hospital. Participants in thewaiver program have a dollar limit on
the amount of services they can receive. Thisllniit, which applies to each waiverrecipient, is equal to 125% of the average per diem expenditure forhospital care in the previous fiscal year) Approximately 530 children participated in the MFTD Waiver during the time period September 1, 2003 through August 31, 2004. During that same period, it cost approximately $2 million to provide waiver services and the EPSDTprogram spent an additional $49 million to provide nursing services to children in the MFTI) Waiver.
Persons with Disabilities Waiver
The Persons with Disabilities Waiver is forMedicaid-eligible individuals underage 60. To qualify for this program, individualsmust need a level of care equivalent to thatprovided in a nursing facility. Participants in the waiverprogram also have a dollar limit, which is generally referred to as a Service Cost Maximum (SCM). The SCMlimits the cost of the service
plan a waiver recipient can receive. The SCM is determinedfor each waiver applicant byway of an assessment tool, referred to as the Determination of Need (DON). Higher DONscores
generally correspond with higher SCMs. A serviceplan, which sets out the allowed waiver services, is developed by DRS for each waiverrecipient. The service plans are tailored to the specific medical conditions and needs of therecipients. These service plans are designed to

1The limit for ventilator dependent children isequal to the greater of:

for hospital care were placed.

in

the

previous

fiscal

year,

or

2)100%

of

the

average

1)125% of the average per diem expenditure per diem cost of the institution from which they

Page 4

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 7 of 35

Grooms v. Maram Expert Report of Todd D. Menenberg March 19,2007
economically provide the necessary services within therecipient's SCM. Approximately 20,000 adults participated in the Persons with Disabilities Waiver during the time period October 1, 2003 through September 30, 2004. During that same period, it costapproximately $175 million to provide waiver services to persons in the Persons with Disabilities Waiver.
Illinois Nursing Facilities
There are over 700 nursing facilitiesparticipating in the illinois Medicaidprogram. HFS reimburses nursing facilities on a per diem basis for days of care provided to Medicaid recipients. The per diem rates vary by facility andaveraged approximately $95 per day as of Fall 2006, however, Illinois recently revised its rate setting methodology for nursing facilities, which resulted in new per diem rates effective January 1, 2007.2 Theaverage of these new rates increased to approximately $100per day.
III. Nature of the Dispute
The Plaintiff in this matter is David Grooms. Iunderstand that David hasquadriplegia and is ventilator dependent. David receivedservices through illinois' MFFD Waiverprogram until he reached age 21 in October 2005. Iunderstand that through the MFED Waiver, David received nursing services at home from RNs and LPNs that cost approximately $16,000per month as well as respite care costing
approximately $1,000 per month. Nursing services in the MFTI) Waiver are generally funded by EPSDT, which was described in Section H above.
Once David reached age 21, he was no longer eligible for the MFTD Waiver. In late 2005, DRS developed a service plan for David underthe Persons with Disabilities Waiver. The Persons with Disabilities Waiver has different (lower) SCMievels (as a result of different cost

2Prior to the rate setting change, nursing facilities couldreceive certain individuals with special needs. The $95 per day average

"exceptional care rates" for services rate does not indude consideration

provided to of individuals

receiving exceptional care rates. With the change in the ratesetting system, exceptional care rates were eliminated.

Page 5

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 8 of 35

Grooms v. Maram

-

Expert Report of Todd D. Menenberg March 19, 2007

neutrality measures) than the MFTD Waiver. The serviceplan developed for David under the Persons with Disabilities Waiver contained fewer nursing hours than he had received under the MFID Waiver. I understand that David hasbeen receiving nursing services at the level approved by the service plan developed under the Persons with Disabilities Waiver; however, David now seeks to receive his"pre-age 21 levels of funding for homenursing services."5 These additional requested nursing services would result in the cost of David's servicesexceeding his cost limitation in the Persons with DisabilitiesWaiver.6
IV. Scope of Work
I was asked by counsel to HFS to quantify the economic impact on the cost of the State's current Persons with Disabilities Waiver program, assuming David were to prevail on his request for additional home nursing services and other individuals were then also able to access additional waiver services. The twopopulations I was asked to evaluate are:
I) Current nursing facility residents whopotentially would move from nursing facilities to Community-basedsettings and receive services through the Persons with Disabilities Waiver program; and,
2) Current Persons with Disabilities Waiver recipients who currently use services at a cost that is less than their SCM.

3The cost neutrality comparison for the MFTD Waiver is based on the cost of hospital

services, services.

whereas

the

comparison

for

the

Persons

with

Disabilities

Waiver

is

based

on

or skilled pediatric facility the cost of nursing facility

4hebxTaocsuhieresppwtsieeohrrnvedanialcytechaoperflerapernaceticrepso)ioneontnfaatil$nw8aes,od8su,4ilso0dtnaphaneavcrveemer.aToqgnuhet,aehla.itpfoEiptexardolccxefopoimstrtiaoaontnfeaeltlyxhcce1ea2pprelthairoonanutwaerslsacspaaer$rer8ede,r6axa6ytte0eon,ifdnweRahdNinctouh/rLwissiPanuNigvnefdsareecrrriveltichitcieype.si3e0antnt4sd(obanapspaercdoaxosienm-baanyte-clyasIe

56Defecnodsatsntf'osrADmaevnidd'esdprAen-2s1weserravnicdeAs fwfierrmeaaptipvreoxDimefaetneslyes$t1o7C,0o0m0pplaeirnmt,opnatrha,gwrahpihch45is.Bap. proximately twice the of his service plan ($8,660) under the Persons with Disabilities Waiver.

cost

Page 6

a.
Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 9 of 35
--
Grooms v. Maram Expert Report of Todd D. Menenberg March 19,2007

Jf David prevails on his request for additional home nursing services, thecost of David's care would exceed his cost limitation under the Personswith Disabilities Waiver and would exceed the cost of his approved serviceplan for the waiver. Therefore, if Davidwere to prevail, • it is reasonable to believe that some current nursing facility residents that have been unable to access HCBS services through the Persons with Disabilities Waiver (because the cost of their home-based service needs exceeded theirSCM) would then be able to receive servicesthrough the Persons with Disabilities Waiver. Similarly, if David prevails, it is reasonable to believethat current Persons with Disabilities Waiver recipients would likely access additional HCBS
services up to (and potentially in excess of) their SCMs.7
The process I used to evaluate the twopopulations above and the results ofmy analyses are explained in more detail in the following section.

V. Process and Results

My colleagues and I had a series of discussions in early 2007 with a number of State personnel, induding attorneys and executives with HFSand DHS. Our work induded discussions with the following individuals:

• •

Matt Werner —I-IFS, Bureau of Barbara Cinder — HFS, Bureau

Rate Development andAnalysis of Interagency Coordination

• Kelly Cuningham -I-IFS, Bureau of Long Term Care

• •

Nancy Becker —HFS,Bureau of Rate Sue Coonrod —HFS, Bureau of Long

Development Term Care

and

Analysis

• Ten Dederer — DHS, Division of Rthabjlitation Services

• John Huston —Officeof the Attorney General

• Karen Koriieczny - Office of the Attorney General

• Joseph Howard - I-IFS, Office of General Counsel

Wtd7heMipasieyvmneadanretaatnelrtyre),sweninsoodtouifllvidmnidluiiurktseaeidllnsygtwoafciaitcncheidlsviisvtayiardidrouedusaiistldisomewnneatidslthisacqenaurdlvacidiocnrnedidspi.ivlteiidoguniaaslo(snr octhut arortnealnyrteltyhvoseesnretviwleadittohurnqddueeaprdetrnhipdelePengetir.asIofonrDstawhvaiittdhawrDeeirvseaebtnoitliipltariteeosvrail in
Page 7

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 10 of 35

Grooms v. Marani
Expert Report of Todd D. Menenberg March 19, 2007

As part of our discussions, we requested and received information relevant to this matter induding

• Medicaid HCBS waiver documents

• •

CMS 372 reports detailing HCBS waiver expenditures Statistical data on services and costs for individualsin

the

HCBS

waiver

programs

• Medicaid fee schedule for HCBS waiver services

• Statewide nursing facility utilization statistics

• Statewide nursing facility Medicaidper diem rate schedules

• •

Summary MDS data David's plan of care

for selectednursing facility residents developed for the Personswith Disabilities

Waiver

• Summary of the costs of David's services sinceOctober 2005

• General description of the process used to develop service plans for HCBS

waiver recipients

Selected depositions, pleadings, and courtrulings in this and related matters

After our discussions with Statepersonnel and our review of the information listed

above, we were asked to specificallyquantify the following:

1) the cost for additional individuals that would move from nursing facilities into the community, who would access Medicaid services through the Persons with Disabilities Waivex and,

2) the additional cost for current Persons with DisabilitiesWaiver recipients that would access additional HCBS services up to (and potentially in excess of) their SCMs.
Due to the nature of this dispute, the elements needed to analyze these costs indude financial, economic, and cost data, both historical and projected. The framework basically compares financial estimates of: (a) the cost of care for Medicaidrecipients under the current programs, with (b) the estimated costs assuming changes to theprograms. I have been asked to take various assumptions and data and design an appropriate cost model based onmy experience and general practices of computing costs, which woulddetermine a reasonable

Page 8

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 11 of 35

Grooms v. Maram Expert Report of Todd D. Menenberg March 19,2007
estimate of costs at issue in this matter. Therest of this report describes the process I have undertaken and the results of my analyses.
Cost to Move Nursing Facility Residents into theCommunity
The objective of this part ofmy analysis was to estimate the additional cost related to nursing facility residents that would move from thenursing facility into the community and access Medicaid services through the Persons with DisabilitiesWaiver, if there were no SCM limitations.
This analysis relied on data from theSeptember 30, 2006 MDS databases used for nursing facility rate setting. We worked with HFSpersonnel to identify Medicaid-eligible individuals under age 60 in nursing facilities. Therewere approximately 9,000 individuals meeting these criteria. We then identified individuals thatwere not scheduled to be discharged from the nursing facility in the next 90 days.9 From this group of individuals, we then
identified how many individuals had expressed a desire to leave the nursing fadilitylo and hada
support person "positive towards" their discharge from thenursing facility." 216 individuals met all these criteria. Therefore, these individuals wouldpotentially move from the nursing facility to the community and be served under the Persons withDisabilities Waiver were the SCM limitations removed.

MT8hHienFidSmahutaambsaaDsceactueassseSdetotfo(dMratoDauSfrr)aoinmnafloaysrsmsiesasitsnimocnleu.ndRtesedosfiMdneDunrStsaiinnsgsfeofsrasmcmialeittinyotnsreafsorierdcreeonsmtisd.peTlnehttseisdindpaneturairosisdiniccgoamflalymcioloivntieleyrs

referred to as
the course of a on September

2006. The MDS information was based on the most recently completed assessment as of September 30, 2006.

year.
30, For

certain residents who had recently been admitted to anursing facility (or for those in a hospital or otherwise

temporarily out of the nursing facility), there was a two week "grace period" to complete MDS assessments.

be

MDS assessment instrument discharged within 90 days.

includes

question

Qic,

which

indicates

whether

or

not

the

resident

is

expected

to

10The MDS assessment instrument indudes question QI a, which asks whether the resident desires to return to the community.

MDS assessment instrument indudes question QTh, which indicates whether or not there is a person who is "positive towards" the resident's discharge from the nursingfacility.

Page 9

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 12 of 35
Grooms v. Maram Expert Report of Todd D. Menenberg March 19, 2007
As part of this process, we observed thata number of the Medicaid nursing facility residents under age 60 did not respond to all three questions discussed above. Assuming that these non-responding individuals would have answered the three questions in a simiiarmanner as those who did respond to all three questions, there would be a total ofapproximately 1,100 Medicaid residents (induding the 216 individualsabove) under age 60 that were not scheduled to be discharged within the next 90 days, desiredto return to the community, and hada person positive towards their discharge. Therefore, forpurposes of my analysis, I have determined that approximately 1,100 current nursing facility residents would potentially move from nursing facilities into the community and be served under the Personswith Disabilities Waiver were the SCM limitations removed.
We sorted the MDS data for the 216 individuals described above by their activities of daily living (ADL) scores.'2 The ADL scores ranged from 7to 28. The largest group of individuals had an ADL score of 7. From the 216 MDS assessments, 28 were judgmentally selected for detailed clinical review. Thesample was selected with the goal of obtaining residents whose ADL scores were distributed in a similar fashion to the ADL scores of the 216 identified residents.
The table on the followingpage details the number of MDS assessments by ADL score and the number selected for review.

'2The ADL score indicates the grooming, transfer, etc. Lower assistance.

level of support needed to accomplish activities of scores indicate less need for assistance and higher

daily living, such as eating, bathing, scores indicate greater need for

Page 10

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 13 of 35

Grooms v. Marant
Expert Report of Todd D. Menenberg March 19,2007

TABTJ2
ADL Score 7 8 9 10
11 12
13 14 15 16 —
17
18
19 20 21 22 23 24 25 26 27 28
Total

Number of MDS Assessments 67 8 8 5
8
8 0 6 3
6
7 2 6 6 8 13 9
10
11 13
9 3
216

Number Selected for Review — 8
1
1
1 1 1
0
1
1 1
1 1
1
1 1 1
1 1
28

Sue Coonrod, an HFS nurse,'3 performed a detailed clinical review based on the MDS data for the 28 selected MDS assessments. From thisinformation, she developed a medical

'3Roberta Sue Coonrod is a Registered Nurse currentlyemployed by the HFS as the Supervisor of the Carlinville

RsiengcieoJnafnouratrhye1B9u8r5eaaundofinLhoenrgcTuerrremntCpaorsei.tiSohneshinacsebeMenayw1i9t9h9H. SFSue(fhoarsmmearliynttahieneIldlihneorisDDeetepramrtimrieantitoonfoPfuNbleiecdAid) (DON) certification as well as her certification in gerontological nursing. Throughout her career with I-IFS, she has

cporomvpidleetredrewviaeivwesr.rSehvieewhassfaolrstohepaIlrltiincoipisatDedepianrftamceinlittyoannAd ginindgiv(iIdDuoaAl e)xacnedpttihoenDalRcSareinrcelvuideiwngs

care plan and and has been

the

lead

Page 11

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 14 of 35

Grooms v. Maram

-

Expert Report of Todd D. Menenberg

March 19, 2007

description of each resident and created a plan of services that would potentially be used by the resident if they were to move from thenursing facility to the community. From the plan of care and the Medicaid fee schedule, we were ableto estimate the cost to care for each individual in the community.
Exhibit 1 shows the Medicaid rate paid for each ofthe 28 individuals to the nursing facility as of Fall 2006 and the current rate (effective January 1, 2007), the estimated cost to care for the individual in the community, and thedifference between the nursing facility rates and the estimated cost to care for the individual inthe community. The average difference between the nursing facility rate as of Fall 2006 and the estimated Cost to care for the individual in the community is $79.94 per day. The difference using theJanuary 2007 nursing facility rates is $83.01 per day.
Assuming that the 28 assessments are representative of the 216 assessments, the additional cost for all 216 assessments would beapproximately $17,000 per day or approximately $6.3 million annually ($79.94 per day x 216 individualsx 365 days) using the Fall
2006 nursing facility rates. A similar calculation based on the January 2007 rates results in an
additional cost of approximately $6.5 million annually.
An extrapolation to account for thenon-response issue discussed above, results in an additional annual cost for the approximately 1,100 individuals (induding the 216 individuals above) of approximately $32 million using the Fall 2006 rates or approximately $33 million using the January 2007 rates.

supervisor for the DES Brain participated in MDS training

Injury waiver. She has assisted and directs staff regarding the

nfaecwilirtaiteessywsittehmthbeaisreodno-lninteheMMDDSSs.ubmissions.

She

has

Page 12

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 15 of 35
Grooms v. Marant Expert Report of Todd D. Menenberg March 19,2007
Cost to Provide Additional Services to Current WaiverRecipients The objective of this part ofmy analysis was to estimate the potential additional cost if
the limitations imposed by the DRS utilization review and service plan developmpernotcess were eliminated and the Persons with Disabilities Waiver recipients were able to receive services up to their SCMs, and beyond.
We obtained data from the DRS program for fiscal year 2006 with the monthly costs of service for each individual, grouped by SCM. Themonthly cost information was provided in $100 increments. We have been asked to determine thedifference between the cost of the Persons with Disabilities Waiver recipients' service plans and their respective SCMs. We were also asked to perform similar calculationsassuming each SCM were increased by 10% and 20%. Finaiiy, we were asked to calculate the cost that would be incurred if eachservice plan were increased by 196%', which represents the difference betweenthe cost of services that David requested and the cost of the service plan developed for David for the Personswith Disabffities Waiver.
The results (see Exhibit 2 for calculations) of these analyses indicate: • The difference between the cost of the Persons with DisabilitiesWaiver recipients' service plans and their respective SCMs would beapproximately $206 million annually.
• The difference between the cost of the Persons withDisabilities Waiver recipients' service plans and their respective SCMs increasedby 10% would be approximately $258 million annually.

14The cost model is set up so that similarcalculations can easily be done for varying percentages.

Pagel3

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 16 of 35
Grooms v. Maram Expert Report of Todd D. Menenberg March 19, 2007
• The difference between the cost of the Persons with Disabilities Waiver recipients' service plans and their respective SCMs increasedby 20% would be approximately $310 million annually.
• The cost of increasing each Persons with Disabilities Waiver recipient's service plan by 196% would be approximately $302 million annually.
Total Cost impact
When the cost impacts related to nursing facility residentsmoving into the community are added to the cost impacts related to additional services that would beprovided to current Persons with Disabilities Waiver recipients, the total annualcosts range from approximately $238 million to $343 million annually. Other Considerations
In addition to the costs described above, there area number of potential additional costs should David prevail, which I have notattempted to quantify at this time. These include:
• Costs are only for the first year of the potential change; costs infuture years would continue to be substantial
• Children currently in the MFTD Waiver will reachage 21, move into the Persons with Disabilities Waiver, and may access services at David's level of care
• The costs of developing and administering asignificantly revised Persons with Disabilities Waiver program
• The initial costs incurred when a new Persons, with Disabilities Waiver recipient moves from a nursing facility into the waiver program,e.g., home modifications, durable medical equipment, developing service plan, etc.
• The costs of increasing nursing facility rates
Page 14

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 17 of 35 Grooms v. Maram Expert Report of Todd D. Menenberg March 19, 2007
• The costs related to an increase in demand fornursing and a resulting increase iii nursing wages and State payments for nursing services
• The costs related to other Medicaid-eligible people moving to Illinois to avail themselves of the Persons with Disabilities Waiver benefits
Page 15

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 18 of 35
EXHIBITS

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 19 of 35

Additional Cost if Individuals Move from Nursing Facilities to the Community

EXHIBIT 1

Assessment #
1
2 3 4
5
6
7
8 9 10
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
27 28
TOTALS AVERAGES

Nursing Facility Rates (Per Diems)

Rate as of
Fall 2006
A
sioisi
10L91 84.44 81.63 101.91
108i5
101.52 8L63 101.88 103.13
105.08 272.17
9421 121.70 10720 111.15 9799
97.96 89.92 81.79 107.03 112.04 15532 105.26
8739
104.48 171.23
$3,092.76

Rate as of
January2007
B $103.01 106.82
87.48 90.56 106.82 111.15 105.14 90.56 104.23 106.13 105.46 108.71 102.13 95.78 128.12 109.18 126.74 99.25 163.80 931)3 85.62 147.17 115.77 102.82 109.22 90.50 106.61 104.92
$3,006.73

HCBS Services Cost
Average Cost Per Day C $14.72 91.92 183i0 193.76 190.12 183.50 213.48 210.13 23.79 46.54 16180 180.45 279.07 256.43 223.27
239.31 236.15 267.35 248.60 217.92 224.71 235.18 259.44 194.24 226.90 173.90 105.44 249.79
$5,331.01

Difference

HCBS Cost

HCBS Cost

Compared to NF Rate as of

Compared to NF Rate as of

Fall 2006 D=C-A

January 2007
E—C-B

($86.82) (9.99) 98.66
112.13 88.21 75.35 111.96 128.50

($8819) (14.90) 95.62 103.20 83.30 72.35 108.34 119.57

(78.09) (56.59) 59.70 75.37
6.90 161.72 101.57 131.61 125.00 16936 15(164 128.00 142.92 128.15 147.40 38.92 121.64 86.51
0.96 78.56

(80.44) (59.59) 56.34 71.74 176.94 160.65 95.15 130.13 109.41 168.10 84.80 124.89 139.09 88.01 143.67 91.42 117.68 83A0
(1.1?) 144.87

$2,233.25 $79.94

$2,324.28 $83.01

The average HCBS cost perday amounts were calculated as monthly cost divided by 30.5 days (average of 30- and 31-day months in a year). If

the average HCBS cost would decrease by 'ess

per day amounts than 4%..

were

calculated

by

dividing

the

monthly

costs

by

31

days,

the

$79.94

and

$83.01

average

differences

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 20 of 35

Additional Cost if UtilLzatloñReviewFunction Removed Persona with Disabilities Waiver

EXHIBIT2

SCM A
1,249 1,249 1,249 1,249 1,249 1,249 1,249 1,249 1,249 1,249 1,249 1.249 1,249
1,435 1,435 1,435 1.435 1,435 1,435 1,435
1,435 1,435 1,435 1,435 1.435 1,435 1,435 1,435 1,597 1,597 1,597 1.597 1,597 1.597 1,597 1,597 1,597 1,597 1,597 1,597 1,597 1,597

Current Service ProjectedMonthlyCoatsPer Person

Low 8 0 100 200 300 400 500 600 700 800 900 1,000 1,100 1,200 0 100 200 300 400 500 600
700 800 900 1,000 1.100 1,200 1,300 1,400
0
100 200 300 400 500 600
700 800 900
1,000 1,100 1,200 1,300

High C 99
199 299
399 499 599 699 799 899 999 1,099 1,199 1,299 99 199 299 399 499 599 699 799 899 999
1,099 1,199 1,299 1,399 1,499
99 199 299 399 499 599 699 799 899 999
1,099 1,199 2,299 1,399

Midpoint D..av(D,C)
49.50 149.50 249.50 349.50 449.50 549.50 649.50 749.50 849.50 949,50 1,049.50 1,149.50 1,224.50 49.50 149.50 249.50 349.50 449.50 549.50 649.50
749,50 849.50 949.50 1,049.50 1,149.50 1,249.50 1,349.50 1.417,50 49.50 149.50 249.50 349.90 449,50 549.50 649.50 749.30 849.50 949.50
1,049,50 1,149.50 1,249.50 1,349.50

Total

Total

Number ol Projected

Projected

People Monthly Cost__MonthlyCost

E

F-DE

G-Ae

20

$990

$24,980

410

61,295

512,090

301

75,100

375,949

710

248,145

886,790

813

365,444

1,015,437

1,123 908

617,089 589,746

1,402,627 1,134,092

919

688,791

1,142,831

542

460,429

676,958

516

489,942

64A,484

280

293,860

349,720

295

339.103

368,455

126

154,287

157,374

5

248

7,175

242

36,179

347,270

71

17,715

101,885

260

90,870

373,100

403

185,644

592,655

729

400,586

1,046,115

673

437,114

965,755

949

711,276

1,361,815

594

504603

852.390

734

696,933

1,053,290

460

482,770

660,100

390

448,305

369

461,066

230

310.385

559,650 529,515 330,050

124

175,770

177,940

1

50

1,597

145

21,678

231,565

27

6,737

43,119

83

29,009

132,551

116

52,142

185,252

249

136,826

397,653

320

207,840

511,040

542

406,229

865,374

395

335,533

630,815

549

321,276

876,753

404

423,998

645,188

374

429,923

597,278

422

527,289

673,934

270

364,365

431,190

atFull SCM

Monthly

Annual

Additional Additional

Coat H.G.F
$23,990 4,50,795 300,849

l-H'll
$287,880

638,64,5 649,993

7,663,740 7,799,916

544,346 459,040

9,426,456 6,832,152 5,508,480

216,529

2,598,348

154542 55,860 29.352 3,087

1,854,504 670,320 352,224 37,044

6,927 311,091
84,170 282,230 407,011 645.529

83,124 3,733,092 1,010,040 3,386,760 4,884,132 7,746,348

528,641 650,539

6,343,692

347,787

4173,444

356,357 177,330 111,345 68,449 19,665
2.173

4,276,284 2,127,960 1,336,140
821,388 235,980 26,040

1,547 209,887 36,382 103,542 133,110 260,827 303,200 459,345 295,262

18,564 2,518,644
436,584 1,242,504 1,597,320 3,129,924 3,638,400 5,512,140 3,543,144

355,477 221,190 167,365 146,645
66,825

4,265,724 2,654,280 2,008,380 1,759,740
801,900

t Calculationbi AddIton Costi(UtilizationReview PunctlonRemoved

Aasurne Coat SCM+ 10%

AssumeCoat at SCM + 20%

Total

Monthly

Annual

Total

Monthly

Annual

Projected Additional

Projected

Additional Additional

MonthlyCost

Coat

Coat

MonthlyCost

Coat

Coat

J.(A'l,l)'E $27,478 563,299 413,544

K.J.F $26,498 502,004 338,444

L-K'12 $317,856
6,024,048 4,061,328

M-(A1.2)'E $29,976 614,508 451,139

N-).4.F $28,986 553,213 376,039

O-N12 $347,832 6,638,856 4,512.468

1,116,981 1,542,890 1,247,501

727,324. 751,537
925,801 657,755

8,727,888 9,018,444
11,109,612 7,893,060

1,064,148 1,218,524 2,683,152 1,360,910

816,003 853,080 1,066,063
771,164

9,792,036 10,236,960 12,792,756 9,253,968

744,654 708,932 384,692 405,301 173,111

573,823 284,225 218,990 90,832 66,198 18,824

6,885,876 3,410,700 2.622,880 1,089,984
794,376 225,888

1,377,397 812,350 773,381 419,664 442,146 188,849

688,606 351,921
283,439 125,804 103,043 34,562

8,263,272 4,223,052 3,401,248 1,509,648 1,236,516
414,744

381,997 112,074
651,921
1,062,331 1,497,997
1,158,619 726,110 615,619
363,055

7,645 345,818
94,339 319,540 466,277 750,141 625,217 786,721 433,026
461,686 243,340 167,310 121,401 52,670 19,964

91,740 4,149,816 1,132,308 3,834,480 5,595,324 9,001,692 7,502,604 9,440,652 5,196,312 9,540,232 2,920,080 2,007,720 1,456,812 632,040 239,568

8,610 416,724 122,262 447,720 711,186 1,255,338 1,158,906 1,634,178 1,022,868 1,263,948 792,120 671,580 635,418
396,060 213,528

8,362 380,545 104,567 356,850 525,542 854,732 721,792 922,902 518,265
567,015 309,350 223,275 174352
85,675 37,758

100,344 4566,540 1,254,564 4,282,200 6,306,504 10,257,024 8,661,504
11,074,824 6,219,180 6,804,180 3,712,200 2.679,300 2,092,224 1,028,100
453,096

25.4,722 47,431
437,418 562,144 952,131 693,897 964,428 709,707 657,006 741,327

1,707 233,044 40,694 116,797 151,635 300,592 354,304 545,902 358,344
443,152 285,709
227,093 214038

20,484 2,796,528
488,328 1,401,564 1,819,620 3,607,104 4,251,648 6,550,824 4,300,128
5,317,824 3,428,508 2,725,116 2,568,456

1,916—' 277,878 51,743 159,061 222,302 477,184
613,248 1.038,689
756,978 1,032,204
774,226 716,734 808,721

1,866 256,200 45,006 130,052 170,160 340,358 405,408 632,460 421,425
530,828 350,228 286,821
281,432

22,392 3,074,400
540,073 1,560,624
2,041,920 4,084,296 4,864,896 7,589,520 5,057,200 6,369,936 4,202,736 3,441,852
3,377,184

AssumeCostat 2.96x Current Coat(David)

Total

Monthly

Projected Additional

Annual

MonthlyCoat

Coat

Additional Cost

P.4F'1.96) $1,940

Q'.P.F $950

R.Q12 $11,400

120,138

58,843

706,116

147,196 486,364 716,270

72,096 238,219 350,826

865,132 2,858,628 4,209,912

1,209,494 1,153,902

592,405 566.156

7,108,860 6,793,872

1,350,039

661.239

7,934,868

902.441 960,286 573.966 664,642

442,012 470,344 282,106 325,539

5,304,144 5,644,128 3,385,272 3,906,468

302,403 486
70,511 34,721 178,105 363,862 785,149

148,116 238
34,732 17,006 87,235 178,218 384,563

1,777,392 2,856
416,784 204,072 1,046,820 2,138,616 4,614,736

856,743

419,629

5,035,848

1,394,101

682,825

8,193,900

989,022

484,419

5,813,028

1,365,989

669,056

8.028,672

944229 878,678 903,689

463,459 430,373 442,623

5,561,808 5,164.476 5,311,476

608,355 344,509
98

297,970 168,739
48

3,595,640 2,024,868
576

42,489 13,205

20,811 6,468

249,732 72,616

56,858 102,198

27,849 50,056

334,188 600,672

268,179 407.366

131,353 199,826

1,576,236 2,394312

796,209 657,654 1.021,731 831,036 842,629 1,033,486

389,980 322,131 500,425 407,038 412,716 506,197

4679,760 3,865,872 6,005,100 4,884,456 4,952,592 6,074,364

Pagel 014

Additional Cost LI Utilization ReviewFunctionRemoved Persons with DjgabjfttjeWaiver

EXHIBIT2

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 21 of 35

SCM A
1,597 1,597
1,912 1,912 1,912 1,912
1,912 1,912 1,912 1,912 1,912 1,912
1,912 1,912 1,912 0,912 1,912
1,912 1,912 1,912 1,912 1,912
2,247 2,247 2.247 2,247 2,247 2,247 2,247
2,247 2,247 2,247 2,247 2,247 2,247 2,247 2,247 2,247 2,247 2,247 2.247 2,247

ProjectedMonthlyCosts Per Person

Low
B
1,400 1,500
0 100 200 300 400 500 600 700 800 900
1,000 1,100 1,200 1,300 1,400 1,500 1,600 1,700 1,800 1,900
100 200 300 400 500 600
700
800 900
1,000
1,100 1,200 1,300 1,400
1.500 1,600 1,700 1,800 1,900 2,000

High C 1,499 1,599

Midpoint
D-avg9t,C) 1,443.50 1,548,50

99

4-9.50

199

149.50

299

249.50

399

349.50

499

449.50

599

549.50

699

649.50

799

743.50

899

849.50

999

949,50

1,099 1,049,50

1,199

1,149,50

1,299 1,399 1,499 1,599 1,699

1,249.50 1,349.50 1,449.50 1,549.50 1,649,50

1,799 1,899 1,999
199
299
399 499
599

1,749.50 1,849,50 1,906.00
149.50 24.9.50 349.50 44,5.50 549.50

699

649.50

799

749.50

899

849.50

999

949.50

1,099 1,199 1,299 1,399 1,499 1,599
1,699 1,799 1,899

1,049.50 1,149,50 1,249.50 1,349.50 1,449,50 1,549.50 1,649,50 1,749.50 1,849.50

1,999 2,099

1,949.50 2,049.50

Total

Number of I'rojected

People MonthlyCost

E

F•DE

391

566,755

297

459,905

3

149

54

8,073

14
34
50 104 160 256 205 320 254 214 325 206 340 204 166
259 173
65 2 1
16 13

3,493 11,883 22,475 57,148 103,920 191,872 174,140 303,840 266,573 245,993 406,088 277,997 492,830 316,098 273,817 453,121 319,964 123.890
299
250 5.592 5,844

35

19,233

46

29,877

112

83,944

81

68,810

169

160,466

134

140,633

118

135,641

179

223,661

150

202,425

236

342,082

127

196,787

115

189,693

158

276,421

163

301,469

255

497,123

127

260,287

___________ AssumeCost at Full SCM

Total Projected

Monthly Additional

Annual Additional

MonthlyCont GA'E

Cost H.G-F

Cost l.44'll

624,427 474,309

57,672 14,404

692,064 172,848

5,736 103,248 26,768 65,008 95,600

5,587 95.175 23,275 53,125 73,125

67,044 1,142,100
279,300 637,500 877,500

198,848 305,920
489,473 391,960 611,840 485,648 409,168 621,400
393,872 650,080 390,048 317,392

141,700 202,000 297,600
217,812 308,000 219,075
163,175 215,312 115,875 157,250
73,950 43.575

1,700,400 2,424,000 3,571,200 2,613,744 3,696,000 2,628,900 1,958,100 2,583,744 1,390,500 1,887,000
887,400 522,900

495,208 330,776 124,280
4,494 2,247 35.952 29,211 78,645

42,087
10,812 390
4.195 1,997 30,360 23,367 59.412

505,044
129,744 4,680 50,340 23,964
364,320 280,404 712,944

103,362 251,664 18Z007 379,743

73,485 167,720
113,197 219,277

881,820 2,012,640
1,358,364 2,631,324

301,098

160,465

1,925,580

265,146 402,213 337,050 530.292

129,505 178,552 134,625 188,210

1,554,060 2,142,624 1,615,500 2,258,520

285,369

88,582

1,062,984

258,405 355,026 366,261 572,985 285,369

68,712 78,605 64,792 75,862 25,082

824,544 943,260 777,504 910,346 300,984

Calculation ofAdditionalCost 11UtilIzation Review FunctionRemoved

Assume Cost at SCM+ 10%

AsaumeCost at SCM+ 20%

Total

Monthly

Annual

Total

Monthly

Annual

Projected AddItional Additional Projected Additional Additional

MonthlyCost Coat

Cost

MonthlyCost

Coat

— Cost

J-(A'l.l)'E

K..J.F

1.'.K'll

M..(A'l.l)'E

N.M-F

O.N12

686,870 521,740

120,115 61,835

1,441,380 742,020

749,312 569,171

182,557 109,266

2,190,684 1,311,192

6,310

6,161

73,932

6,883

6,734

80,808

113,573

105,500

1.266,000

123,895

115,825

1,389,900

29,445

25.952

311,424

32,122

28,629

343,548

71,509

59,626

715,512

78,010

66,127

793,524

105,160 218,733

82,685 161,585

992,220 1,939,020

114,720 238,618

92,245 181,470

1,106,940 2,177.640

336,512 538,419

232,592 346,547

2,791,104 4,158,564

367,104 587,366

263,184 395,494

3,158,208 4,745,928

431,156 673,024 534,213 450,085 683,540 433,259
715,088 429,053 349,131

257,008 369,184
267,640 204,092 277,452
155,262 222,258 112,955
75,314

3,084,096 4,430,208 3,211,680 2,449,104 3,329,424 1,863,144 2,667,096 1,355,460
903,768

470,352 734,208 582,778 491,002 745,680 472,646 780,096 468,058 380,870

296,204 430,368 316,205 245,009 339,592 194,649 287,266 151,960 107,053

3,554,4.48 5,164.416 3,794,460 2,940,108 4.075,104 2.335,788
3,447,192 1,823,520
1,284,636

544,729 363,854 136,708

91,608 43,890 12,818

1,099,296
526,680 153,816

594,250 396,931 149,136

141,129 76,967 25,246

1,693,548
923,604 302,952

4,943 2,472 39,547 32,132 86,510

4,644 2,222 33,955 26,288 67,277

55,728 26,664 407,460 315,456 807,324

5.393 2,696 43,142 35.053 94,374

5,094 2,446 37.550 29,209 75,141

61,128 29.352 450,600 350.508 901,692

113,698 276,830 200,208 417,717 331,208 291,661 442,434 370,755

83,821 192,886 131.398 257,251 190,575 156,020 218,773 168,330

1,005,852 2,314,632 1,576,776 3,087,012 2,286,900 1,872,240 2,625,276 2,019,960

124,034 301,997 218,408 455,692 361,308
318,175 482,656 404,460

94,157 218,053 149,598 295,226 220,685
182,534 258,995 202.035

1,129,884 2,616,636 1,795,176 3,542,702 2.648,220 2,190,408 3,102,940 2,424,420

583,321 313,906 284,246 390,529 402,887
634284
313,906

243,239 117,119 94,553
114,108 101,418 133,161 53,619

2,894,868 1,405,428 1,134,636 1,369,296 1,217,016 5,597,932
643,428

636,350
342,443 310,086 426,031 439,513
687,582 342,443

294,268
145,656 120,393 149,610 138,044 190,459 82,156

3,531,216 1,747,872
1,444,716 1,795,320 1.656,528 2,285,508
985,872

Total
Projected MonthlyCost
P(P1.96) 1,110,840 901,414 292 15,823 6,846 23,291 44,051 112,010
203,683 376,069 341,330 595,526 522,483 482,146 795,932 544,874 965,947 619,552 536,681
888,117 62.7,129 242,824
586 490 10.960 11,454 37,697 58,559
164,530 134,865
314,513 275,641 265,856 438,376 396,753 670,401 385,703 371,798 541,785 590,879 974,361 510,163

,.,,,,e,u ,.oss(David)

Monthly Additional

Annual

Cost AdditionaiCost

QP-F 544,085 441,509
143 7,750 3,353 11,408 21576 54,862

R.Q'lZ 6,529,020 5,298,108
1,716 93,000 40,236 136,896 258,912 658,344

99,763

1,197,156

184,197 167,182 291,686 255,910

2,210,364 Z006,1M 3,509,232 3,070,920

236,153 389.844 266,877 473,117 303,454 262,864
434,996 307,165 118,934
287 240 5,368 5,610 18,464 28,682 80,586 66,058 154,047 135,008
130,215 214,715 194,328 328,399 188,916

2,533,836 4,675,128 3,202.524 5.677,404 3,641,448 3,154,368 5,219,952 3,685,980 1,427,208
3,444 2,880 64,416 67,320 221,568 344,184 967,032 792,696 1,848,564 1,620,096 1,562,580 2,576,550 2,331,936
3.940,758 2,266,992

182,105 265,364 289,410 477,238
249,876

2,185,260 3,184,368 3,472,920 5,726,856 2,998,512

Page 2 of4

Additional Cost if Utilization ReviewFunction Removed
Persons 1th Disabilities Waiver

EXHIBIT2

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 22 of 35

SCM A
2,247 2,247 2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,430 2,430
2,430 2.430
2,430 2,430 2,430 2,612 2,612 2,612 2,612 2,612 2,612 2.612 2.612 2.612 2.612 2.612 2,612 2.612 2,612 2.612 2,612 2,612

Current ServicePlans

ProjectedMonthlyCosta PerPerson

Total

Low B 2,100 2,200 100 300 400 500 600 700 800 900 1,000

High C 2,199 2,299 199 399 499 599 699 799 899 999
1,099

Midpoint Dav5(D,C)
2.149,50 2,223.50
149.50 349.50 449,50 549.50 649.50 749.50 849.50 949,50 1,049.50

Number of Projected

People MonthlyCost

E

P-DE

129

277,286

90

200,115

1

150

1

350

3

1,349

6

3,297

19

12,341

31

23,235

24

20,388

69

65,516

60

62,970

1,100 1,200 1,300 1,400 1,500 1,600 1,700 1,800 1,900 2,000 2,100 2,200 2,300 2,400 100 300 500 600 700 800 900 1,000 1,100 1,200 1.300 1,400 1,500 1,600 1,700 1,800 1,900

1,199 1,299 1,399
1,499 1,599 1,699 1,799 1,899 1,999 2,099 2,199 2,299 2,399 2,499 199 399 599 699 799 899 999
1,099 1,199 1,299 1,399 1,499 1,599 1.699 1,799 1,899 1,999

1,149.50 1,249.50 1,34950 1,449.50 1,549.50 1,649.50 1,749,50 1,849.50 1,949.50 Z049.3O 2,149,50
2,249.50 2,349.50 2,415.00
149.50 349,30 549,30 649.50 749,50 849.50 949.50 1,049,50 1,149,50 1,249.50 1,349.50 1,449.50 1,549.50 1,649,50 1,749.50 1,849.50 1,949.50

63 71 75 127 58 74 87 96 168 77
118 97 144 78 1 1
2
1
7 7
10 15 16 23 23 48 21
30 52 70 104

72,419
88,715 101,213 284,087 89.871 122,063 152.207 177,552 327,516 157,812 253,641
218,202 338,328 188.370
150 350 1,099 650 5,247 5,947 9,495 15,743 18.392 28,739 31,039
69.576 32,540 49,485 90,974 129,465 202,748

AssumeCoat at Pull SCM

Total Projected

Monthly Additional

Annual Additional

MonthlyCost C-AE
289,863

Cost H-C-F
12,577

Cost
I-14'12 150,924

202,230

2,115

25,380

2,430 2,430

2,280 2,080

27,360 24,960

7,290

5.941

71,292

14,580

11,283

135,396

46,170

33,829

405,948

75,330 58,320

52,095 37,932

625,140 455,184

167,670

102,154

1,225,848

145,800

82,830

993,960

153,090

80,671

968,052

172,530 182,250

83,815 81,037

1,005,780 972,444

308,610

124,523

1.494,276

140,940 179,820 211,410 233,280

51,069 57,757 59,203 55,728

612,828 693,084 710,436 668,736

408,240

80,724

968,688

187,110

29,298

351,576

286,740

33.099

397,188

235,710

17,508

210,096

349,920

11,592

139,104

189,540

1,170

14,040

2,612 2,612

2,462 2,262

29,544 27,144

5,224 2.612

4,125 1,962

49,500 23,544

18,284 18,284 26,120 39,180

13,037 12,337 16,623 23,437

156,444 148,044 199,500 281,244

41,792

23.400

280,800

60,076 60,076 125,376 54,852 78,360

31,337 29,037 55,800 22,312 28,875

376,044 348,444 669,600 267,744 346,500

135,824

44,850

538,200

182.840 271,648

53,375 68,900

640,500 826,800

CalculationôAdditloa1 Cost l1JtilIzatlonReviewPunctionRemoved

AssumeCostatSCM+10%

AssumeCostat SCM + 20%

Total

Monthly

Annual

Total

Monthly

Annual

Projected Additional Additional Projected

Additional Additional

Monthly Cost

Coat

Cost

MonthlyCoat

Cost

Cost

J-(A'l.l)'E 318,849 222,453

l(-J.F 41,563 22,338

i.-i('12 498,756 268,056

M-(A1.2)'5 347,836 242,676

N.M-F 70,550 42,561

O-N12 846,600 510,732

2,673 2,673 8,019 16,038 50,787 82,863 64,152 184,437 160,380 168,399 189,783 200,475 339,471 155,034 197,802 232,551 256,608 449,064 205,821
315,414

2,523 2,323 6,670 12,741 38,446 59.628 43,764 118,921 97,410
95,980 101,068
99,262 155.384
65,163 75,739 80,344 79,056 121,548 48,009 61,773

30,276 27,876 80,040 152892 461,332 715,336 525.168 1,427,052 1,168,920 1,151,760 1,212,816 1,191,144 1,864,608 781,956 908,868 964,128 948,672 1,458,576 576,105 741,276

2,916 2,916 8,748 17,496 35,404 90,396 69,984 201,204 174,960 183,708
207,036 218,700 370,332 169,128 215,784 253,692 279,936 489,888 224,532 344,088

2,766 2,566 7,399 14,199 43,063 67,161 49,596 135,688 111,990 111,289 118,321 117,487 186,245 79,257 93,721 101,485 102,384 162,372 66,720 90,447

33,192 30,792 88,785 170,388 516,756 805,932 595,152 1,628,256 1,343,880 1,335,468 1,419,852 1,409,844 2,234,940 951,084 1,124,652 1,217,820 1,228,608 1,948,464 800,640 1,085,364

259,281 384,912 208,494

41,079 46,584 20,124

492,948 559,008 241,488

282,852 419,904 227,448

64,650 81,576 39,078

775,800 978,912 468,936

2,873 2,873
5,746 2,873 20,112 20,112 28,732 43,098 45,971 66,084
66,084 137,914
60,337 86,196 149,406 201,124 298,813

2,723 2,523 4,647 2,223 14,865 14,165 19,237 27,355 27,579 37,345 35,045 68,338 27,797 36,711 58,432 71,659 96,065

32,676 30.276
55,764 26,676 178,380
169,980 230,844 328,260 330,948 448,140 420,540 820.056
333,564 440,532 701,184 859,908 1,152,780

3,134 3,134 6,269 3,134 21,941 21,941 31,344 47,016 50,150 72,091 72,091
150,451 65,822 94,032 162,989 219,408 323,978

2,984 2,784 5,170 2.484 16,694 15,994 21,849 31,273 31,758 43,352 41,052 80,875 33,282 44,547 72,015 89,943 123,230

35,808 33,408 62,040 29,808 200,328 191,928 262,188 375,276 381,096 520,224 492624 970,500 399,384 534,564 864,180
1,079,316 1,478,730

AssumeCost at 1.96 xCurrentCost (David)

Total

Monthly

Projected

Additional

Annual

Monthly Coal

Cost AdditionalCost

F1.96)

Ql'-F

R-Q12

543,481 392,225

266,195 192110

3,194,340 2,305,320

294 686 2,644 6,462

144 336 1295 3,165

1,728 4,032 15,540 37.980

24,188

11,847

142,164

45,541

22,306

267,672

39,960 128,411 123,421

19,572 62,895 60,451

234,864 754,740 725,412

141,941

69,522

834,264

173,881

85,166

1,021,992

198,377 360,811 176.147 239,243 298,326 348,002 641,931

97,164 176,724 86,276 117,180 146.119 170,450 314,415

1,165,968 2,120,688 1,035,312 1,406,160 1,753,428 2.045,400 3,772,980

309,312

151,500

1,818,000

497,136 427,676

243,495 209,474

2.921,940 2,513,688

663,123

324,795

3,897,540

369,205 294 686
2,154 1.274 10,284

180,835 144 336
1,055 624
5,037

2,170,020 1,725 4,032 12,660 7,488
60,444

11,656 18,610 30,856 36,048 56,328

5,709 9,115 15,113 17,656 27,589

68.508 109,580 181,356 211,872 331,068

60,836

29,797

357,564

136,369

66,793

801,316

63,778 96,991 178,309 253,751 397,386

31,238 47,504 87,335 124,286 194,638

374,856 570,072 1,048,02.0 1,491,432 2,335,656

Page3 of 4

Case 1:06-cv-02211 Document 141-2 Filed 09/27/2007 Page 23 of 35

Additional Cost If titiizatidn ReviewFunction Removed Persons ivith Disabilities Waiver

EXHIBIT2

SCM A
2,612 2,612 2,612 2,612 2,612 2,612 2,612

Current ServicePlane.

Projected MonthlyCosts PerPerson

AssumeCostat Full SCM

Low B 2.000 2,100

High C
2.099 2,199

Midpoint 0..vgiS,C)
2,049.50 2,149.50

Totsi

Total

r'Iumberof Projected

Projected

People MonthlyCost MonthiyCost

E

F-D'E

C-A'E

37

75,832

96,644

62

133,269

162,944

Monthly Addtltona
Cost H-C-F
20,812 28,675

Annual
Additional Cost I-I-i'll 249,744 344,100

2,200

2,299

2,249.50

54

121,473

141,048

19,575

234,900

2,300 2,400

2.399 2,499

2,349.50 2,449.50

77

180,912

132

323,334

201,124 344,784

20,212 21,450

242,544 257,400

2,500 2,600

2,599 2,699

2,549.50 2,606.00

112

285,544

84

218,904

292,544 219,408

7,000 504

84,000 6,048

Calculation of AddItlonal CostifUtilizationReviewFunctionRemoved

rn,s ,_,,

,o

s_ as,,,os

—

Total

Monthly

Annual

Total

Monthly

Annual

Projected Additional Additional Projected Additional Additional

MonthlyCost Cost

Cost

MonthlyCost

Cost

Cost

J.(A'1,5)E

K-I-P

L-X'12

M-(A2rE

N-M-F

O'N'lZ

106,308

30,476

365,712

115,973

40,141

481.692

178,138 155,153 221,236 379,262 321,798 241,349

44,869 33,680 40,324 55,928 36,254 22,445

538,428 404,160 483,888 671,136 435,048 269,340

194,333 169,258 241,349 413,741 351,053
263,290

62,064 47,785 60,437 90,407 65,509 44,386

732,768 573,420 725,244 1,084,884 786,108 532,632

Note

Totala Roundad

26,189 $26,197,059

$43,353,119

$17,154,060

$205,848,720 206,000,000

$47,686,238 $21,489,176 $157,870,112 258,000,000

TBhaeseddaotnaIdnldscicuastaeldotnhaawti.tehrvDlRceSpstlaafnf,sfwoer3u8ndInedrsivtaIndduathlsahtathdepsreoajreectceadsmesownhthelryecaodsdt piteIornpaelrsseornviIcneesxwceeerae Forpurposes of this analysis, we haveexcluded these38serviceplans and theirprojectedcosts,

of theSCM. temporarilyauthorIzed

(or

special

circumstances.

$52,021,345

$23,824,286 $309,891,432 310,000,000

Assume Coatat 1.96x CurrentCost(David)

Total

Monthly

Projected

Additional

Annual

MonthiyCcst

Cost AdditlonalCost

P.(F'l.96) 148,631

Q.P.F 72,799

R-Q12 873,588

261,207

127,338

1,535,256

238,087 354,588 633,735 559,666 429,052

116,614 173,676 310,401 274,122 210,148

1,399,368 2.084,112 3,724,812 3,289,464 2,521,776

$51,346,227

$25,149,168

$301,790,016 302,000,000

For projectedcost Intervals(above)where themonthlySCMtell wIthin themonthlyprojectedcost range, theMidpoint (col. 0) iscalculated as theaverage betweenthe Low(cot.B) and the SCM(col.A).

Page4of 4

 
 Case: 1:06-cv-02211 Document #: 191 Filed: 05/30/08 Page 1 of 35 PageID #:2574

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DAVID GROOMS,
Plaintiff,
v.
BARRY S. MARAM, Director, Illinois Department of Healthcare and Family Services,
Defendant.

) ) ) ) ) No. 06 C 2211 ) ) Judge Rebecca R. Pallmeyer ) ) ) )

MEMORANDUM OPINION AND ORDER

Medicaid funding was once available only to pay for an individual to receive care in an

institution. Today, states may “waive” the need for individuals to receive services in an institution

and, instead, provide funding for home or community-based medical care for Medicaid-eligible

individuals. Federal matching funds are available for home or community-based care, however,

only if the services provided cost no more than it would cost to care for the individual in an

institutional setting. Subject to this and other prerequisites for federal approval, each state may

define the terms of its waiver programs. In this case, the parties debate whether an existing Illinois

waiver entitles a severely disabled adult—who requires a hospital-level of care to survive–Medicaid

benefits enabling him to receive this care at home.

Plaintiff David Grooms suffers from Type II Glycogen Storage Disease (“GSD Type II”), a

genetic disorder which progressively affects skeletal muscle and muscles involved in respiration.

He retains his cognitive ability but is quadriplegic and suffers from a variety of other, related

ailments. Until he reached age twenty-one, the Illinois Department of Healthcare and Family

Services (“HFS”) paid for Grooms to receive care in his home through the Illinois Medicaid program.

As described in more detail below, Grooms’s home care was funded by the Medically Fragile

Technology Dependent Children’s (“MFTDC”) waiver. The MFTDC program pays for a participant’s

home care so long as the cost of home care does not exceed the cost of care in a hospital or skilled

Case: 1:06-cv-02211 Document #: 191 Filed: 05/30/08 Page 2 of 35 PageID #:2575
pediatric nursing facility. On his twenty-first birthday, however, Grooms “aged out” of that program and is now eligible for Medicaid-funded home care under the Persons with Disabilities Medicaid waiver (“PWD”). The State of Illinois has opted to provide home or community-based care for disabled adults only if the cost of such care does not exceed the cost of care in a nursing facility. Under Illinois law, Grooms is therefore now eligible only for home care at a nursing-facility level of care and can receive hospital-level of care only in an institution.
Several key facts are undisputed. First, Grooms is Medicaid-eligible. Second, Defendant has not challenged Plaintiff’s evidence that a nursing facility level of care is inadequate to Grooms’s needs, and that only a hospital level of care–including many hours per day of nursing care—is appropriate for him. Third, although neither side has acknowledged it explicitly, both parties appear to recognize that, were Grooms to receive care in an institution rather than at home, Medicaid would pay for the care he needs. Fourth, the PWD waiver provides for home or community-based care only up to a nursing facility level of care, which is less than a hospital-level of care. In this lawsuit against Defendant Barry S. Maram, the Director of HFS, Grooms contends that by choosing to cap the benefits it will provide for Grooms’s home care at the cost of nursing home care, HFS has violated the “integration mandate” of the Americans with Disabilities Act, 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. § 794(a), see 28 C.F.R. §§ 35.130(d) and 41.51(d). The case was set for a bench trial in October 2007. After opening statements, however, it became clear that the only disputed issue is the applicability of the integration mandate in this case—a pure question of law—so the court ordered summary judgment briefing on the issue. Having now reviewed the briefs on HFS’s motion for summary judgment, the court concludes HFS is not entitled to judgment in its favor, as explained below.
2

Case: 1:06-cv-02211 Document #: 191 Filed: 05/30/08 Page 3 of 35 PageID #:2576

BACKGROUND

I.

Illinois Medicaid

HFS operates Illinois’s Medicaid program under Title XIX of the Social Security Act, 42

U.S.C. § 1396. Under the Title XIX health care assistance program, the federal government

provides funding for Medicaid programs administered and partly funded by the states pursuant to

state-established guidelines for low-income individuals and families. Specifically, the Medicaid

program provides federal funds to enable states to “furnish (1) medical assistance on behalf of

families with dependent children and of aged, blind, or disabled individuals, whose income and

resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation

and other services to help such families and individuals attain or retain capability for independence

or self-care.” 42 U.S.C. § 1396. The state may elect to provide certain services in its Medicaid

program, including private-duty nursing services, which may be available at the recipient’s home,

at a hospital, or at a skilled nursing facility. See Radaszewski ex rel Radaszewski v. Maram, 383

F.3d 599, 601 (7th Cir. 2004). For a proposed program to qualify for federal funds, the United

States Secretary of Health and Human Services (“HHS”) must approve it. Id.; 42 U.S.C. § 1396a.

Once a state’s plan is approved, the federal government agrees to pay (among other obligations)

an amount equal to the statutorily-defined “Federal medical assistance percentage” of the state’s

quarterly medical assistance expenditures. 42 U.S.C. § 1396b(a)(1).

A state with an approved Medicaid plan may also apply to the Secretary of HHS for a

“waiver,” which allows the state to include as “medical assistance” payments for “home or

community-based services” (as opposed to institutional services) that the Secretary has approved

and that are provided pursuant to a written plan of care. 42 U.S.C. § 1396n(c)(1). In order for the

state to qualify for such a waiver, the home or community based services it provides must be

available to “individuals with respect to whom there has been a determination that but for the

provision of such services the individuals would require the level of care provided in a hospital or

3

Case: 1:06-cv-02211 Document #: 191 Filed: 05/30/08 Page 4 of 35 PageID #:2577
a nursing facility . . . the cost of which could be reimbursed under the State plan.” Id. In other words, an individual is eligible for services under the a waiver only if, absent home or communitybased care, he or she would be entitled to Medicaid benefits enabling him or her to receive care in an institution. In addition, the state must provide the Secretary satisfactory assurances that, among other things, the waiver is cost-neutral: the average per capita expenditure estimated by the State for medical assistance may not exceed the average estimated per capita expenditure that would have been required absent the waiver. 42 U.S.C. § 1396n(c)(2)(D). The parties agree that the Secretary of HHS has approved for Illinois two waivers relevant to this action: the MFTDC waiver and the PWD waiver. (Am. Ans. ¶ 17.) Waivers providing home or community-based care for qualified adults constitute Illinois’s Home Services Program (“HSP”). Often, provision of care at home is less expensive than institutional care. Thus, according to one court, the HSP has proven “very cost-effective.” Radaszewski ex rel. Radaszewski v. Maram, No. 01 C 9551, 2008 WL 2097382, at *7 (N.D. Ill. Mar. 26, 2008). In 2005, HFS reported a savings of $13,676 per participant (with 19,827 participants): community care cost per participant cost $19,140 per year, while cost to care for each participant in an institution was $32,816 per year. Id.
Grooms has taken advantage of the waiver programs available to him both as a child and as an adult. First, until his twenty-first birthday, Grooms participated in the MFTDC waiver program. Pursuant to the MFTDC program, the State has adopted regulations requiring HFS to “administer a home and community-based service (HCBS) waiver program . . . for disabled persons under the age of 21 years who are medically fragile and technology dependent.” 89 Ill. Adm. Code § 120.530(a); see also http://www.hfs.illinois.gov/hcbswaivers/tdmfc.html. By its terms, this waiver program applies to individuals who would otherwise require a level of care provided by a hospital or a facility certified by the State to provide long-term care for persons under twenty-two years of age. 89 Ill. Adm. Code § 120.530(b). Eligible ventilator-dependent individuals, such as Grooms,
4

Case: 1:06-cv-02211 Document #: 191 Filed: 05/30/08 Page 5 of 35 PageID #:2578

are entitled to reimbursement for home care so long as the cost of such care does not exceed the cost of hospital-level care. 89 Ill. Adm. Code § 120.530(e)(3)(A).
Now that he is an adult, Grooms receives home care as a participant in the PWD waiver. That waiver, for which disabled individuals under the age of sixty may qualify, differs from the MFTDC waiver in several ways.1 The PWD waiver enables HFS to fund home or community-based care at a nursing facility-level of care for eligible adults with physical disabilities who would otherwise be forced to live in a nursing facility. See 89 Ill. Adm. Code §§ 676.10(a), 676.30(j), 676.40, & 682.100; http://www.hfs.illinois.gov/hcbswaivers/disabilities.html. In contrast to the MFTDC waiver, which is administered by the University of Illinois Division of Specialized Care for Children, Illinois’s Department of Human Services bears direct operational responsibility for the PWD waiver. 89 Ill. Adm. Cod § 676.10(b). The State’s PWD waiver uses a Service Cost Maximum (“SCM”) to limit the benefits available to participants; the individual’s SCM directly corresponds to the cost the State would bear for providing nursing care for the individual in an institutional setting. 89 Ill. Adm. Code § 679.50; Radaszewski, 383 F.3d at 602. In other words, the SCM functions as a cap: the cost of care for a disabled adult in a nursing facility is the maximum benefit that individual can expect to receive for his or her home care. To calculate the SCM for individuals who are eligible for care in an institution but choose to receive home or communitybased care, Illinois uses a Determination of Need (“DON”) test, which measures what is referred to as an individual’s “imminent risk of institutionalization.” 89 Ill. Adm. Code §§ 679.10(b), 676.30(d). Thus, the DON test assesses an individual’s physical eligibility for the Home Services Program, including the extent of his or her impairment and need for external care. 89 Ill. Adm.

1

Federal law also treats individuals under the age of twenty-one differently than

adults: the early periodic screening, diagnosis, and treatment services (“EPSDT”) program is

mandatory and requires states to provide any service listed in 42 U.S.C. § 1396(a) that is “medically

necessary” to the individual under twenty-one years old. States must provide those

services–including private-duty nursing–whether or not they are available to the rest of the

population.

5

Case: 1:06-cv-02211 Document #: 191 Filed: 05/30/08 Page 6 of 35 PageID #:2579
Code § 679.10. The DON assessment determines an individual’s eligibility for placement in a hospital or nursing facility and/or for home services. Id. An individual’s DON score is then found to correspond to an SCM. See 89 Ill. Admin. Code § 679.50(b) (setting forth SCMs for participants in HSP).
Grooms argues that the DON calculus is irrelevant to his claims, because–based on his dependence on a ventilator–he received an “exceptional care” rate in October 2005. (Def.’s 56.1 ¶ 52.) Indeed, Illinois regulations recognize that no SCM is sufficient to serve individuals who require what the state refers to as “exceptional medical care,” so HFS sets an “exceptional care rate” for those individuals. 89 Ill. Adm. Code §§ 140.569(a), 679.50(f); Radaszewski, 383 F.3d at 603. Ventilator-dependent individuals receive exceptional care rates. The Illinois Medical Assistance Statute, which establishes a program for providing various types of medical assistance including Medicaid, defines exceptional medical care as “the level of medical care required by persons who are medically stable for discharge from a hospital but who require acute intensity hospital level care for physician, nurse and ancillary specialist services. . . .” 305 ILCS 5/5-1.1(i). Only skilled nursing facilities that meet certain state requirements—or exceptional care nursing facilities—may receive payments for providing exceptional care. 305 ILCS 5/5-5.8a(a). The exceptional care rate approximates the cost of providing exceptional medical care to an individual in an institution, and is calculated by identifying the daily exceptional care rate for the nearest approved exceptional care nursing facility to the individual’s home and extrapolating a monthly exceptional care rate. 89 Ill. Adm. Code § 679.50(f); Radaszewski, 383 F.3d at 603 n.2. Nevertheless, as described below, even the exceptional care rate to which Grooms is entitled does not provide him with sufficient funding for the care he needs to remain in his home.
6

Case: 1:06-cv-02211 Document #: 191 Filed: 05/30/08 Page 7 of 35 PageID #:2580
II. Grooms’s PWD Waiver Benefits Defendant admits that Grooms is disabled. (10/31/07 Trial Tr. 22:4-5, Ex. D to Pl.’s Resp.)
Grooms was diagnosed with GSD Type II when he was twelve years old. (Compl. ¶ 1; 10/31/07 Trial Tr. 7:1-6.) This is a muscle disease, which progressively affects both skeletal muscle and the muscles involved in respiration. (Compl. ¶ 1.) Grooms’s condition has also caused him to suffer from a variety of medical ailments, including cardiomyopathy, scoliosis, asthma, and osteoporosis. (10/31/07 Trial Tr. 7:1-6.) He is wholly dependent on a ventilator for his breathing. (Id.) In addition, Grooms is a quadriplegic who must rely on others for virtually all care and mobility. (Compl. ¶¶ 1-2.) Grooms has some use of his hands, and is able to drink from a straw, feed himself certain foods, and use a computer. (Id. ¶ 2.) Aside from this, he retains virtually no body functions. (Id.) His cognitive function, on the other hand, is unimpaired. (Id.)
Nor are the particulars of the Medicaid benefits Grooms has received disputed in this action. The parties agree that Grooms is eligible to receive Medicaid assistance (Def.’s 56.1 ¶ 1), and do not dispute that Medicaid provides funding for necessary institutional care including, if necessary, hospitalization. Grooms received skilled nursing care at home pursuant to the MFTDC program until his twenty-first birthday. (Compl. ¶ 26.) Grooms notes that during 2005, HFS paid approximately $16,000 for monthly medical services provided by a Registered Nurse and a Licensed Practical Nurse as well as approximately $1,000 per month for respite care, which is temporary, short-term care of an individual with a disability to provide families with a break from caregiving. (Id. ¶ 27.) Defendant’s proffered expert–Todd D. Menenberg–echoed this, expressing his understanding that Grooms received through the MFTDC program nursing services costing $16,000 per month and respite care costing $1,000 per month. (Grooms v. Maram Expert Witness Report dated 3/19/07 (“Menenberg Rept.”), Ex. D to Pl.’s 56.1.) Grooms also contends that his reimbursed medical expenses in the year before his twenty-first birthday totaled approximately
7

Case: 1:06-cv-02211 Document #: 191 Filed: 05/30/08 Page 8 of 35 PageID #:2581
$221,760. (Compl. ¶ 27.) Grooms’s parents were responsible for the rest of his medical care, though the record does not reveal what this remaining medical care included. (Id.)
On January 21, 2005, Grooms; his mother; his nurse; his case manager from the University of Illinois Division of Specialized Care for Children, which administers the MFTDC program; and Susan Whitney (a counselor from the Department of Human Services’ Division of Rehabilitation Services, which administers PWD waivers) met to discuss the Home Services Program and the services that would be available for Grooms once he aged out of the MFTDC program. (Def.’s 56.1 ¶ 47.) Generally, when an individual is approved to receive services at home, a “Service Plan” is developed for his or her Medicaid assistance. Whitney completed an Interim Service Plan which afforded Grooms total monthly service benefits of $150 for twenty hours per month of Personal Assistant (“PA”) services. (Id. ¶ 48.) Then, on September 24, 2005, an Addendum Service Plan was developed for Grooms (presumably by Whitney in connection with Grooms’s medical advisors); it provided 406.25 hours of LPN services for a total of $8,125 per month and fifty hours of PA services for a total of $392.50 per month. (Id. ¶ 51; Home Services Program Service Plan for David W. Grooms dated 9/24/05, DX 56.) This resulted in a total monthly payment of $8,517.50 for Grooms’s home care. (Id.) On October 11, 2005–days after Grooms’s twenty-first birthday–a “Second Addendum Home Services Program Service Plan” was developed for Grooms, providing 318 hours of Registered Nurse services for a total of $7,314 per month; 51.5 hours of Licensed Practical Nurse services for a total of $1,030 per month; and 36 hours of PA services for a total of $282.60 per month (Def.’s 56.1 ¶ 53; Home Services Program Service Plan for David W. Grooms dated 10/11/05, DX 57.) In sum, Grooms was deemed entitled to Medicaid assistance totaling $8,626.60 per month for nursing and personal assistance services. (Id.) In that same month, HFS calculated an“exceptional care rate” for Grooms, because he is a ventilator-assisted individual; that rate was an amount not to exceed $8,633.20. (Def.’s 56.1 ¶ 52; Home Services Program Exceptional Care Rate for Ventilator Assisted Individuals for David Grooms dated 10/05, DX 47.)
8

Case: 1:06-cv-02211 Document #: 191 Filed: 05/30/08 Page 9 of 35 PageID #:2582
It is not apparent from the record whether this sum is in addition to or in place of the SCM calculated for Grooms. Then, on January 24, 2006, Whitney developed a Service Plan Reassessment for Grooms, which again afforded Grooms services identical to those provided by the October 2005 Service Plan. (Def.’s 56.1 ¶¶ 56-7.) It is undisputed that the benefits Grooms receives under the PWD waiver amount to less than half of what he received for home care under the MFTDC waiver program.
Despite this reduction in benefits, since his twenty-first birthday on October 8, 2005, Grooms has remained at his parents’ home rather than in an institution. (Def.’s 56.1 ¶ 60.) His parents have personally cared for him around the clock, at considerable hardship. Due to their own worsening health and work demands, however, his parents are unable to continue making these extraordinary efforts. (Compl. ¶ 31.) Thus, Groom alleges, the reduction in funding for his care that results from the limitations in the state’s PWD waiver will force him to enter an institution–a result he believes violates federal law. (Id. ¶ 36.) . III. Litigation
Grooms initiated this litigation on April 20, 2006, alleging that HFS’s actions violate the ADA and the Rehabilitation Act because his forced institutionalization will unlawfully segregate him from the community. (Compl.) Following a period of discovery, a bench trial was scheduled to begin on October 31, 2007. (Docket Entry No. 148.) The parties’ opening statements revealed that there are no disputes of fact concerning Groom’s physical condition or his medical needs:
THE COURT: . . . .I thought I was going to be hearing evidence about Mr. Grooms’ medical condition and why he could be perfectly well accommodated in a skilled nursing facility despite what the plaintiff characterizes as these grave needs for ventilator services and the like.
But the openings establish to my satisfaction that it’s the defendant’s position that we really don’t look at that issue. We really -- under the statutes and the regulations, we are not discriminating against him. We are making the care available that the statutes and regulations call for. And this additional level of care is simply not available to the plaintiff under the relevant regulations.
9

Case: 1:06-cv-02211 Document #: 191 Filed: 05/30/08 Page 10 of 35 PageID #:2583

. . . .[M]y understanding is the defendant believes even if the plaintiff can demonstrate that his medical needs are such that they cannot be accommodated in a skilled nursing facility, he still is not entitled to more money for home-based care.

MR. HUSTON: That is correct. You have to cap it at a nursing facility level of care under the persons with disabilities [waiver].

(10/31/07 Trial Tr. 53:17-54:16.) Thus, the court declined to hear testimony and, instead, ordered

additional summary judgment briefing on the disputed legal issue.

Defendant moved for summary judgment on November 30, 2007. (Docket Entry No. 149.)

Defendant’s position on summary judgment is not that hospital-level care is unnecessary for

Grooms but, rather, that HFS has no obligation to fund hospital-level care for Grooms under the

PWD waiver. Citing Supreme Court and Seventh Circuit cases holding that failure to integrate can

constitute discrimination in violation of the ADA and Rehabilitation Act, Plaintiff counters that HFS

is indeed obliged to provide adequate funding for Grooms’s home care so long as home care is

appropriate, acceptable to Grooms and his family, and cost-neutral. Plaintiff did not move for

summary judgment but, on March 6, 2008, requested a preliminary injunction requiring the state

to provide funding for Grooms to receive a hospital-level of care in his home. (Docket Entry No.

181.) As explained below, the court concludes that Defendant is not entitled to judgment as a

matter of law at this stage and, because Plaintiff is likely to succeed on the merits of his claims,

directs the parties to appear in court to assess what preliminary relief should be afforded to

Grooms.

DISCUSSION

I.

Summary Judgment Legal Standard

Summary judgment is proper when the court, having reviewed the pleadings, depositions,

transcripts, discovery responses, exhibits, and affidavits, finds that there is no genuine issue of

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, 322-23 (1986). In determining whether a

10

Case: 1:06-cv-02211 Document #: 191 Filed: 05/30/08 Page 11 of 35 PageID #:2584
genuine issue of material fact exists, the court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). At this stage, Grooms must produce enough evidence to support a reasonable jury verdict in his favor, while Maram, as the moving party, bears the burden of proving that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Hicks v. Midwest Transit, Inc., 500 F.3d 647, 651 (7th Cir. 2007). II. Grooms’s Claims
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a). Due to the similarities between the relevant provisions of the statutes, the court’s analysis will focus on Grooms’s ADA claim but apply with equal force to the Rehabilitation Act claim. Radaszewski, 383 F.3d at 607. Certain basic elements of this ADA claim are undisputed here. First, Grooms is an individual with a disability (though the parties dispute whether he is “qualified” for the PWD waiver). (10/31/07 Trial Tr. 22:4-5.) In addition, HFS is a public entity within the meaning of Title II of the ADA and an entity that receives federal funds for purposes of the Rehabilitation Act. (Docket Entry No. 125-2 at Schedule (a)-5.) Thus, HFS is subject to the integration mandate implicit in each statute. Having agreed on these two elements of Plaintiff’s claims, the parties dispute two key issues: (1) whether Grooms is qualified for the PWD waiver (and thus can be considered a qualified individual with a disability); and (2) whether Grooms was subject to discrimination by reason of his disability.
11

Case: 1:06-cv-02211 Document #: 191 Filed: 05/30/08 Page 12 of 35 PageID #:2585
A. Grooms is a Qualified Individual with a Disability Although Defendant now intimates that it has reserved the right to challenge Grooms’s need for hospital-level care (Reply at 4 n.1), there is no factual dispute that Grooms in fact requires hospital-level care. The only expert analysis referred to regarding Grooms’s medical condition during the parties’ opening statements was that of Dr. Mary Keen of the Marianjoy Rehabilitation Hospital and Clinics. Plaintiff’s counsel summarized that testimony as follows:
Dr. Keen will testify she is familiar with the level of, particularly the staffing levels of nursing homes in Illinois, and that in her professional opinion, David would be unsafe were he to be placed in a nursing facility and provided the care provided to other patients.
The evidence will also show that the State has made no effort to determine whether David could in fact be safely served in a nursing facility. It did not submit any of its information to any facility for review or advice regarding whether such facility could or would safely care for him. It has conducted no reviews of nursing facilities to determine whether they could provide needed care to a person with David’s level of fragility and complexity. (10/31/07 Trial Tr. 15:8-20.) Defense counsel made clear that they would not present a defense medical expert. (Id. at 39:12-13.) Nor did Defendant suggest there had been any sudden significant improvement in Grooms’s physical condition on his twenty-first birthday. The court therefore noted specifically that defense counsel was not arguing that Grooms could be accommodated in a skilled nursing facility. (Id. at 40:23-41:3.) In other words, defense counsel has effectively conceded that Grooms needs a higher level of care than that provided in the HSP. The evidence before the court confirms that Grooms cannot continue to live at home, absent additional assistance. Grooms’s Complaint asserts that his current level of assistance under the PWD waiver is insufficient to permit him survive at home, and that his parents will be forced to institutionalize him to ensure that he continues to receive the care he needs. (Compl. ¶¶ 31, 36; see also 10/31/07 Trial Tr. 7:23-8:1.) Since filing the Complaint, Grooms’s situation has worsened. Plaintiff’s counsel has advised the court that Plaintiff’s parents, who have been providing care to substitute for the additional care Grooms once received and still needs, are no longer capable of
12

Case: 1:06-cv-02211 Document #: 191 Filed: 05/30/08 Page 13 of 35 PageID #:2586
providing this assistance and that, even if they could, it would be inadequate to provide for Grooms’s safety. (Docket Entry No. 182 at 10-13.) Dr. Keen confirmed that the levels of skilled nursing care Grooms currently receives are inadequate, putting him at risk of “serious medical crisis.” (Keen Aff. dated 3/5/08 ¶ 10, Ex. C to Mot. for Prelim. Inj.) As of July 2007, Grooms’s ventilator was disconnecting once or twice a night; he needed to be turned five times per night due to back pain (on bad nights, as many as fifteen to twenty times per night); he required suctioning approximately five times per day; and he could not be removed from his ventilator for more than a few seconds at a time. (Id. ¶¶ 6-7.) Thus, he needs someone to respond to alarms, adjust his oxygen levels, monitor his vital signs, and provide additional care. (Id. ¶ 8.) The risk of medical crisis without this constant care has already materialized: Grooms developed Methicillin-resistant Staphylococcus aureus (“MRSA”), a serious antibiotic-resistant staph infection. (Id. ¶ 9.) Dr. Keen believes that the inadequate nursing care Grooms receives may have precipitated this infection. (Id.)
In neither the summary judgment nor the preliminary injunction briefing does Defendant challenge the accuracy of this description of Grooms’s medical condition or the inability of his parents to provide adequate medical care. The court therefore accepts as true that Grooms’s medical condition continues to deteriorate, forcing him to be increasingly dependent on consistent skilled nursing care. The court also accepts as true that increased medical care and supervision would improve or stabilize Grooms’s condition by, for example, preventing future staph infections. Absent this increased medical care and supervision, Grooms will be required to move to an institution.
The PWD waiver under which Grooms currently receives benefits is intended for individuals who would require a nursing-facility level of care. (Def.’s 56.1 ¶ 14.) Thus, Defendant contends that, if he requires hospital-level care, Grooms is no longer qualified for the PWD waiver. (Reply at 6.) The Seventh Circuit has considered this argument in a very similar case and rejected it. In
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Radaszewski, the State argued that Eric Radaszewski was ineligible for the HSP because the cost of providing him continuous care would exceed the cost of exceptional care in a nursing facility, which is the maximum amount to be paid for at-home care. Radaszewski, 383 F.3d at 612. The court expressly disagreed, holding that Eric was a qualified individual with a disability because he was otherwise eligible for the PWD waiver: he had severe, long-term disabilities, he was Medicaideligible, and he was at risk of being placed in an medical institution. Id. In addition, home care was appropriate and beneficial for Eric. Id. There is no dispute that Grooms meets all these criteria. Finally, the Radaszewski court held that Eric was qualified for the HSP in that the cost of Eric’s home care would not exceed the anticipated cost of caring for him in an institutional setting. Id. at 613. As discussed below, there is no evidence that for Grooms to receive home care would violate the cost-neutrality standard. Accordingly, Grooms is a qualified individual with a disability.
B. Grooms was Subject to Discrimination by Reason of his Disability 1. Integration Mandate
Even if he is qualified, Defendant contends, the governing statutes and regulations do not recognize Grooms’s “integration” claim as stating a cause of action for discrimination in violation of the ADA. (Def.’s Mem. at 3-6.) This argument, too, contradicts the governing Supreme Court and Seventh Circuit precedent.
For purposes of this action, the ADA and Rehabilitation Act contain substantially similar requirements. The ADA’s regulatory scheme makes clear that Title II establishes what is known as an “integration mandate.” Specifically, “[a] public entity 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). This integration mandate is not unlimited; the regulations also provide that while a public entity is required to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability,” there is an exception if “the public entity can demonstrate that making the modifications
14

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would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). The Rehabilitation Act contains similar requirements. That statute’s regulations provide that programs shall be administered “in the most integrated setting appropriate to the needs of qualified handicapped persons.” 28 C.F.R. § 41.51(d). In light of their similarity, courts “construe and apply” these provisions of the ADA and the Rehabilitation Act “in a consistent manner.” Radaszewski, 383 F.3d at 607.
Olmstead v. L. C. by Zimring, 527 U.S. 581 (1999) explains what is meant by the integration mandate. “Unjustified isolation” of a disabled individual constitutes discrimination based on disability. See id. at 597. In applicable statutory findings, “Congress explicitly identified unjustified ‘segregation’ of persons with disabilities as a ‘form of discrimination.’” Id. at 600 (quoting 42 U.S.C. §§ 12101(a)(2) & 12101(a)(5)). In Olmstead, the State of Georgia argued that it had not discriminated against disabled individuals by housing them in institutions and denying them community placement for two reasons: first, this denial of community-based treatment was not on account of their disabilities and, second, those individuals had not identified uneven treatment of similarly-situated individuals. Id. at 598. The Supreme Court rejected each argument, concluding that Congress “had a more comprehensive view of the concept of discrimination advanced in the ADA.” Id. The Court explained that the integration mandate reflects two judgments: (1) institutionalizing persons capable of thriving in community settings “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life;” and (2) institutionalization interferes with individuals’ everyday life activities, such as “family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 600-601. The court cautioned, however, that individuals not able to handle or benefit from community settings ought not be forcibly removed from institutional settings. Id. at 601-602. Olmstead thus established the following rule:
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States are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. Id. at 607.2 According to Defendant Maram, Olmstead does not establish a private right of action to enforce the integration mandate. The court finds no support for this interpretation in Olmstead itself, which expressly deems “unjustified institutional isolation” of disabled individuals to be actionable discrimination, under the delineated circumstances. Olmstead, 527 U.S. at 600. Defendant next seeks to distinguish Olmstead because that ruling did not require the State of Georgia to modify its Medicaid waiver but, rather, directed that the plaintiffs be placed into existing community-based institutions. Again, the court disagrees. In Olmstead, Georgia argued to the district court that requiring the state to immediately transfer the plaintiffs between institutions would fundamentally alter the state’s Medicaid program, because Georgia was already using all its available funds to provide services to other persons with disabilities. Id. at 594. Thus, the Olmstead court would effectively require the state to modify its distribution of services if the district court determined that Georgia’s current scheme violated the integration mandate. Regardless of whether Defendant’s characterization is accurate, however, it is irrelevant unless requiring Illinois

2

Defendant challenges the regulations’ validity. (Def.’s Mem. at 4.) Because the

parties in Olmstead addressed only the proper construction and enforcement of the regulations, the

court did not reach the issue of their validity. Olmstead, 527 U.S. at 592-93. This court also

declines to address the matter, as the regulations are not the only source for the integration

mandate Olmstead recognized. The Olmstead court also identified legislative history and findings

suggesting that the ADA by its own terms was intended to offer the benefits of community living to

individuals with disabilities. Id. at 599-600. In addition, it considered the position of the Department

of Justice, as the agency that issued regulations implementing Title II of the ADA. Olmstead, 527

U.S. at 597-98. The Department of Justice “consistently advocated” that undue institutionalization

constitutes discrimination by reason of disability. Id. at 597. Finally, neither party has engaged in

any comprehensive analysis of the regulations’ validity, rendering it inappropriate for consideration

at this stage.

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to modify its Medicaid waiver is an unreasonable accommodation, which the court will consider below.
Defendant’s position is also inconsistent with Seventh Circuit authority. In a case substantially similar to Olmstead (though it involved an individual who, like Grooms, had a physical rather than a mental disability), the Seventh Circuit entertained an individual’s claim for enforcement of the integration mandate. See Radaszewski, 383 F.3d 599. Eric Radaszewski was a “medically fragile” adult requiring around-the-clock, one-on-one care by a registered nurse in order to survive. Id. at 600-01. As of September 1, 2001, Illinois ceased to provide “private-duty nursing,” or nursing services for an adult who requires care that is more individualized and continuous than that provided by a visiting nurse, a hospital nursing staff, or a skilled nursing facility’s staff. Id. at 601. Thus, like Plaintiff Grooms, when Eric turned twenty-one and aged out of the MFTDC program, he lost entitlement to around-the-clock private-duty nursing. Id. at 602-03. The Illinois Department of Public Aid (“IDPA”)–now HFS–determined that Eric was entitled to exceptional care, but contended that it was not authorized to pay for at-home medical care beyond what it would cost to provide Eric with exceptional care in a skilled nursing facility. Id. at 603. According to the IDPA, if Eric required treatment not covered by his existing Medicaid HSP, he would need to move to an institutional setting to receive the additional treatment within the Medicaid program. Id. The IDPA also determined that Eric could be adequately cared for in a nursing home facility. Id. Eric’s mother filed a complaint on Eric’s behalf, challenging the reduction in the level of Eric’s private-duty nursing services. Id. The district court entered judgment on the pleadings for the State, holding, first, that plaintiffs had named the wrong defendant for its ADA claim by naming an individual rather than the public entity. Radaszewski ex rel. Radaszewski v. Garner, No. 01 C 9551, 2002 WL 31045384, at *2 (N.D. Ill. Sept. 11, 2002). With regard to plaintiff’s Rehabilitation Act claim, the district court found that the lack of in-home nursing care available for Eric applied equally to handicapped and non-handicapped individuals and was thus lawful. Id. at *3.
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The Seventh Circuit reversed. Radaszewski, 383 F.3d at 615. In remanding the case to the district court, the Court of Appeals applied the Olmstead test, holding that the integration mandate requires the State of Illinois “to provide community-based treatment for individuals with disabilities, so long as the State’s treatment professionals find that such treatment is appropriate, the affected individuals do not oppose community-based treatment, and placement in the community can be reasonably accommodated, taking into account the State’s resources and the needs of others with similar disabilities.” Id. at 608. In Radaszewski, it was clear that Eric could be cared for at home and that neither he nor his family opposed the prospect of him receiving care at home. Id. The same is true here: the parties apparently agree that Grooms can receive treatment at home and, in fact, did so until his twenty-first birthday with Medicaid assistance; similarly, his parents’ continued care for Grooms after he aged out of the MFTDC program makes clear that no affected individuals oppose such a treatment plan for Grooms. Thus, the only disputed issue here, as in Radaszewski, is whether the State can reasonably accommodate home treatment, taking into account the State’s resources and the needs of others with similar disabilities. When addressing the reasonable accommodation prong, the Radaszewski court focused on the cost to Illinois of funding home care for Eric.
There, the State argued that compelling an increase to the exceptional care rate for individuals as severely disabled as Eric Radaszewski was not reasonable. Radaszewski, 383 F.3d at 609. The Seventh Circuit did not answer this question, as the factual record remained undeveloped. Instead, the court provided a roadmap for assessing the reasonableness of requiring the State to accommodate a request for home treatment. First, the court sought to identify the proper benchmark for assessing the financial cost of providing Eric home care. Ultimately, reasonableness would depend on two issues: whether a nursing home facility could meet Eric’s needs and what level of care Eric would require in an institutional facility. Id. at 610. If a disabled individual cannot receive adequate care in a nursing facility, the “type and cost” of medical care
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provided in a nursing facility is not a proper reference point for assessing whether services the individual seeks to receive at home would be provided in an institutional setting. Id. The inquiry regarding what level of care a disabled individual would require in an institutional facility is likewise critical because, if Eric would require “constant monitoring and continuous skilled assistance” in an institutional setting, the State would be required to provide Eric with those services in an institution. Id. at 611. If the services Eric would require in an institution were equivalent to around-the-clock, private-duty nursing care, then Eric might have a claim to receive private-duty nursing care at home, despite the fact that Illinois Medicaid does not ordinarily provide such a service. Id.
The Radaszewski court made clear, however, that the State would not be required to provide Eric with equivalent home care if doing so would place an unreasonable burden on the State or would force the state to fundamentally alter the nature of its programs. Radaszewski, 383 F.3d at 611. The State of Illinois has limited resources to allocate to disabled individuals, and, within certain parameters, the State is entitled to make these allocations. Although the Radaszewski complaint alleged that the cost of Eric’s continued care at home did not exceed the continued cost of caring for him in an institution, id. at 613, this did not end the court’s inquiry. Courts must also consider the overall costs borne by the state. For example, that Eric is cared for at home does not enable the state to close or reduce the size of a costly institution in which he might otherwise receive care. Id. at 614. The Seventh Circuit directed the district court, on remand, to evaluate the cost of Eric’s care in the context of the overall costs of the Illinois Medicaid program, including the cost of maintaining existing institutions that provide care. Id. at 614-15.
As the court understands the teaching of Olmstead and Radaszewski, Grooms has a private right of action to contest a violation of the “integration mandate.” Several district courts have reached the same conclusion. Radaszewski, 2008 WL 2097382, at *14 (on remand, entering judgment for plaintiff on ADA and Rehabilitation Act claims: “Defendant argues that neither the ADA nor [Rehabilitation Act] provide[s] for an independent claim for integration in the community and that
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the authorities cited by Plaintiff do not recognize an independent claim for integration. Defendant’s arguments are meritless and directly contrary to Olmstead and Radaszewski.”); Fisher v. Maram, No. 06 C 4405, 2006 WL 2505833, at *4 (N.D. Ill. Aug. 28, 2006) (granting temporary restraining order: “As this court reads the Radaszewski opinion, it appears that the Court concluded that if the level of care which would have to be given in an institution in order for Eric to survive amounts to the equivalent of around-the-clock, private-duty nursing care, then Eric may well have a viable claim to receive private-duty nursing care at home because then, private-duty nursing care would present a reasonable alternative that would not require a fundamental alteration of the State’s programs and services”);3 Opinion and Order, Sidell v. Maram, No. 05-1001 (C.D. Ill. May 14, 2007) (denying defendant’s motion for summary judgment on integration mandate claims because PWD waiver providing home or community-based care in place of nursing-home level care is not co-extensive with providing waiver in place of all “institutional” care).4 The court therefore concludes that Grooms may bring a claim for violation of the integration mandate if he satisfies the three factors set forth in Olmstead and Radaszewski.

3

Most recently, Judge Guzman denied cross-motions for summary judgment in

Fisher v. Maram, finding that there remained contested issues of fact appropriate for resolution at

trial. Minute Order, Fisher v. Maram, 06 C 4405 (N.D. Ill. Mar. 20, 2008). In that Order, Judge

Guzman reaffirmed that the integration mandate supports a cause of action under the ADA and

Rehabilitation Act: “[D]efendant argues that there is no independent private right of action regarding

the ADA and Rehabilitation Act’s integration regulations. This argument misses the point. Plaintiff’s

ADA and Rehabilitation Act claims are based on defendant’s alleged discrimination based on her

disability.” Id. at 3-4. In Fisher, there was a triable issue of fact as to whether a nursing home could

provide appropriate medical treatment for the disabled individual. Id. at 4. Judge Guzman also

found a triable issue of fact as to Defendant’s affirmative defenses that providing the disabled

individual with the requested relief would impose undue hardship on the State of Illinois, in light of

conflicting expert opinion. Id. Judge Guzman has scheduled a jury trial for February 2, 2009.

Docket Entry, Fisher v. Maram, No. 06 C 4405 (N.D. Ill. May 19, 2008).

4

Judge McDade conducted a bench trial between May 5 and May 7, 2008; no final

judgment has been entered in that case. Minute Entries, Sidell v. Maram, No. 05-1001 (C.D. Ill.

May 5-7, 2007)

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2. The Discrimination Against Grooms Defendant also urges that, even if there is a private cause of action for violation of the integration mandate, Grooms’s situation does not establish the basis for valid claim under that theory because he does receive home care through the Illinois Medicaid program. (Def.’s Mem. at 6-7.) Specifically, Defendant contends that Grooms is eligible for and in fact enrolled in the HSP, and therefore has not been discriminated against because of his disability. As Defendant points out, Grooms’s physician deemed him qualified to participate in the HSP, Grooms and/or his parents signed documents acknowledging having a choice between home care or nursing home care, and Grooms has in fact received home care for years. (Def.’s Reply at 2.) In other words, Defendant argues that there has been no violation of the integration mandate because Grooms is receiving home care. But because Grooms has provided unrebutted medical evidence that the home care he receives is insufficient, endangers his health, and, if not supplemented, will force him to seek treatment in an institution, Defendant’s analysis is not persuasive. Cf. Radaszewski, 2008 WL 2097382, at *14-15 (entering judgment for Plaintiff on ADA and Rehabilitation Act claims where plaintiff was “at risk of being placed in an institutional setting” but cared for at home).
3. Reasonable Accommodation Because Grooms is a qualified individual with a disability and home care is appropriate for him, the court must decide whether the State can reasonably accommodate Grooms’s request for home care. This requires the court to ask (1) whether a nursing home facility can meet Grooms’s needs and (2) what level of care Grooms would require in an institutional facility. Radaszewski, 383 F.3d at 610. Based on this information, the court can determine what it would cost to care for Grooms in the appropriate institution and whether providing him home care would impose a reasonable expense on the state. As discussed earlier, there is no genuine dispute that a nursing home facility cannot adequately meet Grooms’s needs, as the medical evidence presented by Grooms’s counsel is unrebutted. In other words, the only question before the court is one of cost-
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neutrality. The State has conducted no individualized analysis of the costs associated with caring for Grooms at home as opposed to in a hospital. Thus, there is no evidence that his receipt of oneon-one care at home would be more costly than care in a hospital setting. See Opinion and Order, Sidell v. Maram, No. 05-1001, at 23-24 (“Defendant has not put forward any evidence that receiving one-on-one care in a community setting is materially different (or more costly) than hospital based care. . . . Accordingly, Plaintiff’s requested level of care does not bar her claim.”). To the contrary, as evidenced by his participation in the MFTDC program, until Grooms turned twenty-one, the State recently determined that it was cost-neutral for him to receive home care, including sixteen hours per day of nursing care. There is no evidence that this cost-neutrality analysis has changed. Because the parties agree that Grooms is Medicaid-eligible, there is no dispute that Medicaid would pay for him to receive care in a hospital. Accordingly, there is no evidence that the State would bear additional costs were it to provide Grooms with the equivalent of hospital-level care at home. Based on the evidence that home care has been cost-effective for Grooms in past years, and the absence of any basis for finding a change in Grooms’s circumstances, the court finds that HFS could reasonably accommodate Grooms’s request for home care.
Instead, Defendant focuses on the nature of the change Grooms requests and the cost of that change within the system more broadly. Beginning with the first analysis, Defendant argues that requiring Illinois to expand the PWD waiver–by providing additional services, requiring selection of a new standard level of care, or raising cost caps–would fundamentally alter the nature of the services and programs that Illinois is legally obligated to provide and does provide to persons with disabling medical conditions. As explained above, the Federal Regulations dictate that a public entity need only “make reasonable modifications” to comply with the integration mandate and need not even make otherwise reasonable modifications if “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).
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i.

Fundamental Alteration

HFS suggests that, if the PWD waiver were extended such that a hospital level of care, as

opposed to a nursing-facility level of care, is used as a benchmark for determining whether

Medicaid assistance is cost-neutral, such an extension would fundamentally alter that program.

HFS notes that the application it submitted to the Secretary of HHS when seeking approval of the

PWD waiver–first approved in 1999 and then renewed in 2004–seeks reimbursement only for

providing home and community-based services to individuals who would otherwise require care in

a nursing facility. (PWD Waiver Renewal dated 9/10/04, DX 9.) 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 ¶ 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 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 ¶ 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. (Id. ¶ 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. (Id. ¶ 4.)5

5

There is no evidence in the record regarding whether these amendments resulted

(continued...)

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As Judge Darrah 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 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.” Id. at *15. He noted, further, that the federal government has not denied a single waiver application in the last ten years. Id. 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 ¶ 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.
Nor would the particular additional care that Grooms seeks work a fundamental alteration. As the State’s PWD waiver application makes clear, HFS did not intend to provide private-duty nursing, though it would provide skilled nursing services. (PWD Waiver Renewal at 3028.) Privateduty nursing is defined as continuous–rather than part-time or intermittent–licensed nursing care in an individual’s home. (Id. at 3053-54.) But the Seventh Circuit has held that increasing the hours of nursing care provided is not a fundamental alteration in the waiver. “Although private-duty nursing services have been removed from Illinois's basic Medicaid plan, a disabled individual can
(...continued) in increased costs being imposed on the State of Illinois.
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still access such services through the HSP waiver program. However, the SCM or exceptional care rate approved for the individual HSP participant operates to limit the amount of nursing care that he or she may receive.” Radaszewski, 383 F.3d at 606 n.4. That HFS already provides some nursing care through the PWD waiver belies the suggestion that providing additional nursing for Grooms would create an entirely new Medicaid service or otherwise alter the substance of the Illinois Medicaid program. Radaszewski, 383 F.3d at 612.
Next, Defendant contends that a decision for Grooms would fundamentally offer the PWD waiver by abolishing two fundamental Medicaid requirements. First, HFS suggests that for Grooms to prevail would eliminate the “cost-neutrality” requirement, which limits the services to which an individual participating in a waiver program is entitled. That requirement permits a State to provide home or community-based care for an individual only if such care is not more expensive than the institutional care he or she needs, 42 U.S.C. § 1396n(c)(2)(D): thus the State is permitted to adopt, as a benchmark, the cost of care for an individual in an institution. HFS need not and indeed may not provide Medicaid assistance that runs afoul of the federally-mandated cost-neutrality considerations. Instead, if Grooms prevails, the State will determine cost-neutrality for a disabled individual requiring hospital-level care using the cost of hospital-level care as its point of comparison.
The parties also debate how the “medical necessity” requirement for home or communitybased care would function, were Grooms to prevail (and indeed, both sides offer expert testimony on the question). The medical necessity requirement calls for a showing, for each separate component of the Medicaid program, that the individual served would not only benefit from but has an actual need for the service in question. Bertrand v. Maram, 495 F.3d 452, 458 (7th Cir. 2007) (citing 42 C.F.R. § 440.230(d)). According to Defendant’s expert, Todd D. Menenberg, a Managing Director of Navigant Consulting, Inc. who consults on health care-related financial and economic matters, a decision in favor of Grooms would effectively change the medical necessity requirement,
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because it would permit any individual’s physician to evaluate the need for medical and nonmedical services, thus bypassing the effort of creating an HSP Plan. (Grooms v. Maram Rebuttal to Samuel S. Flint Report by Todd D. Menenberg dated 5/25/07 (“Menenberg Rebuttal”) at 3-4, DX2.) In Defendant’s view, “reading a requirement into the Home Services Program that David Grooms can receive whatever services his physician feels are medically necessary to maintain him in the community is not a reasonable modification.” (Mem. at 12.)
Defendant’s concern appears to rest on a misinterpretation of the issues before the court. The unrebutted medical evidence shows that Grooms requires hospital-level care; no medical assessment finds that Grooms can be cared for adequately with nursing facility-level care. Thus, a decision in favor of Grooms in this case would not alter the requirement that an individual seeking home-based care demonstrate to the State (and not merely a testifying physician) that he or she has an actual medical need for the service sought, nor would such a decision alter the process by which “medical necessity” is determined. Nor would a decision in favor of Grooms obviate the requirement that, even if an individual demonstrates medical need for a particular service, that service will only be provided under the PWD waiver if the individual’s care is adjudged to be “costneutral.” In other words, as explained above, the SCM will remain as a cap on the funding available once medical need is established. Or, under certain circumstances (such as where an individual is, like Grooms, ventilator-dependent), the state-calculated exceptional care rate is used. In no case will a private doctor’s definition of medical necessity undermine the program’s structure and rules. Thus, for Grooms to prevail in this action would not change either statutory requirement for receipt of services under the PWD program.
Finally, Defendant points out that the Ninth Circuit has held that where a state has established a “comprehensive deinstitutionalization scheme,” that is “effectively working,” courts ought not tinker with the state’s scheme. Sanchez v. Johnson, 416 F.3d 1051, 1067-8 (9th Cir. 2005) (citation omitted). Sanchez is readily distinguishable. In that case, the plaintiffs sought an
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injunction requiring California state officials to increase the wages and benefits paid to providers of community-based care for the developmentally disabled, to match the wages and benefits paid to employees in state institutions. Id. at 1055. Ultimately, the court found that these changes would fundamentally alter the state’s Medicaid program. The Sanchez plaintiff sought broad changes to the administration of the Medicaid program, with significant and obvious financial implications. This action, on the other hand, seeks only to modify the eligibility requirements applied to a small crosssection of disabled adults. The court concludes that ruling for Grooms in this case would not fundamentally alter the State’s Medicaid program or PWD waiver.
ii. Cost Defendant also urges that the costs HFS would incur were it to accommodate Grooms with additional Medicaid assistance preclude a decision in his favor. The Supreme Court has ordered courts to consider whether home or community-based care for a disabled individual “can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Olmstead, 527 U.S. at 607. When determining whether a state is obligated to provide the level of Medicaid assistance for home care requested by a disabled individual, the Seventh Circuit has also cautioned courts “to consider the cost of a plaintiff’s care not in isolation, but in the context of the care it must provide to all individuals with disabilities comparable to those of the plaintiff.” Radaszewski, 383 F.3d at 614. In other words, the court must not merely compare the cost of providing home care for Grooms, but must also consider, for example, whether the State will incur greater costs if compelled to fund Grooms’s home care while simultaneously providing institutional care for others who cannot or choose not to receive home or community-based care. Id. Defendant focuses on the change it expects that a ruling in favor of Groom action will effect on the statewide PWD waiver. In support of the argument that this change is cost-prohibitive, Defendant’s expert, Todd Menenberg, has provided an expert report addressing relevant cost and
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financial issues in this matter. (Menenberg Rept.) Menenberg estimated that the cost to the State of the modification proposed by Grooms’s lawsuit would range from at least $238 million to $343 million annually. (Id. at 14.) Menenberg reaches this conclusion by considering two additional costs he concludes the State would be forced to bear, were it to implement the change Grooms requests and make it available for all Medicaid recipients in his condition. First, Menenberg estimated the cost to move all disabled current nursing facilities residents from their nursing facilities into home or community-based care, absent SCM limitations. (Id. at 9.) Menenberg’s analysis relied on HFS data known as the Minimum Data Set (“MDS”). (Id. at 9 n.8.) The MDS consists of assessments completed by nursing facility residents periodically over the course of a year. (Id.) It appears that the MDS assessment is essentially a written questionnaire sent to nursing facility residents, although the means by which the survey was conducted is not entirely clear. Menenberg considered the most recently completed assessments in the MDS, as of September 30, 2006. (Id.)
In the MDS, Menenberg identified approximately 9,000 Medicaid-eligible individuals under age 60 (the age at which individuals not already grandfathered in to the Medicaid program age out of eligibility). (Menenberg Rept. at 9.) Of that number, approximately 216 answered three questions in the assessment affirmatively: (1) they were not scheduled to be discharged within ninety days; (2) they expressed a desire to leave the nursing facility; and (3) they had a support person positive toward the option of such a discharge. (Id.) Absent an SCM cap, Menenberg believed that these 216 individuals might opt for home or community-based care as opposed to institutionalization in a nursing facility, and would be eligible for the PWD waiver. (Id.) But a very large number of MDS survey respondents did not answer one or more of the critical questions in the MDS assessment. Extrapolating the data from individuals who did respond to all three critical survey questions to those who did not, Menenberg estimated that there are a total of 1,100 current nursing facility residents who meet all three criteria. (Id. at 10.) Thus, Menenberg believes that
28

Case: 1:06-cv-02211 Document #: 191 Filed: 05/30/08 Page 29 of 35 PageID #:2602
approximately 1,100 individuals might leave their nursing facilities to seek home or communitybased care, were Grooms to prevail.
Turning to the cost of transitioning these individuals to home or community-based care, Menenberg “judgmentally selected” twenty-eight individuals based on his assessment that those individuals were representative of the group of 216. (Menenberg Rept. at 10-11.) According to Menenberg, the activities of daily living (“ADL”) scores–which assess the level of assistance an individual needs to complete activities such as eating, bathing, grooming, dressing, transferring, and incontinence–for these 28 individuals were representative of the ADL scores for the group of 216. (Id.) HFS uses those scores to make the determination-of-need calculation and, ultimately, to set the individual’s SCM if he or she participates in the PWD waiver. Notably, there is no indication, apart from their need for assistance, that these twenty-eight individuals were found otherwise representative of the group of 216.
Having selected a group of twenty-eight with what he deemed representative ADL scores, Menenberg assessed the costs of transitioning those twenty-eight individuals from the institution to home or community-based care. To do so, Roberta Sue Coonrod, an RN and HFS employee, developed a sample service plan for each of the twenty-eight. (Menenberg Rept. at 11 & 11 n.13.) Menenberg then identified the average difference between the nursing facility rate as of fall 2006 and the estimated cost of home or community-based care to be $79.94 per day; due to rate changes effective January 2007, this difference was $83.01 per day in January 2007. (Id. at 12.) Menenberg therefore concludes that, for the 216 identified individuals, the additional cost in the fall of 2006, to provide home or community-based care would be approximately $6.3 million annually; the January 2007 rates translate into a cost of approximately $6.5 million annually. From these figures, Menenberg extrapolates to the 1,100 potentially eligible individuals and concludes the cost of allowing them home or community-based care (absent an SCM cap at the nursing facility level)
29

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would be approximately $32 million using the fall 2006 rates or approximately $33 million using the January 2007 rates.
In addition, Menenberg considered the cost of providing additional services to those who are already participating in the PWD waiver program. According to Menenberg, if service plans were no longer used to restrict Medicaid assistance afforded to the PWD waiver recipients, the State would incur an additional cost of approximately $206 million annually. (Menenberg Rept. at 13.) If each SCM were increased by 196%–or the difference between the cost of services Grooms received under the service plan developed for him and the cost of the services he requested–the State would incur an additional total cost of approximately $302 million annually. (Id. at 14.) Again, Menenberg’s analysis appears to assume that all persons now participating in the PWD waiver program in fact require far more costly institutional care.
In response to these calculations, Plaintiff has submitted the expert report of Dr. Samuel S. Flint, an Assistant Professor of Public Affairs at Indiana University Northwest. (Expert Report of Samuel S. Flint, Ph.D. dated 5/7/07 (“Flint Rept.”), PX 27.) Flint criticized several facets of Menenberg’s analysis. First, Flint argues that the extrapolation from the 216 surveyed nursingfacility residents to the group of 1,100 was improper because the group of 216 was not a representative sample. (Id. at 2-4.) According to Flint, Menenberg himself noted that 7,286–of approximately 9,000–individuals did not respond to the first survey question, which asked whether they would like to leave the facility in which they currently lived. (Id. at 4.) There is no evidence that explains why so many individuals declined to answer this question, or what percentage of respondents answered other questions. (Id. at 5.) Flint therefore rejects Menenberg’s assumption that the desires of the 80% of surveyed individuals who did not respond to this question were identical to those of the 20% who did respond fully. (Id.) As Flint sees the data, the fact that just 216 of the 9,271 individuals responded affirmatively to all three questions Menenberg identified as
30

Case: 1:06-cv-02211 Document #: 191 Filed: 05/30/08 Page 31 of 35 PageID #:2604
critical suggests that 216 is the absolute ceiling for the first group of individuals who Menenberg surveyed. (Id.)
Flint also believes that Menenberg’s calculations are otherwise inflated. As discussed above, Menenberg’s numbers purport to exclude any skilled nursing facility residents who will be discharged within ninety days of responding to the survey. Flint points out that 193 responding individuals expressed uncertainty about their date of discharge, and that none of those 193 were excluded from Menenberg’s analysis. (Flint Rept. at 5.) Since approximately 68% of individuals living in a skilled nursing facility are discharged within ninety days, it follows that some of the individuals who are uncertain about their date of discharge may well be discharged within ninety days. (Id.) Excluding these 193 from the group of 216, no more than twenty-three (one-quarter of one percent) current nursing-facility residents definitively meet all three Menenberg criteria. (Id.)
Second, Flint critiqued Menenberg’s methodology for identifying the cost of transitioning the individuals who do meet the Menenberg criteria from nursing-facility care to home or communitybased care. (Flint Rept. at 6.) Flint opines that Menenberg’s decision not to use a random sample but, rather, to make a conscious selection of twenty-eight individuals and then assess the costs associated with their particular situations, likely resulted in skewed cost projections. (Id.) For example, Flint points out that three of the twenty-eight selected individuals were eligible for an exceptional care rate, which is afforded only to the sickest 1% (only 540 of 47,624) of skilled nursing facility patients. (Id.) Individuals receiving an exceptional care rate were therefore significantly over-represented in Menenberg’s judgmentally selected population. Flint calculated that there is a .0003 chance that a random sampling process would so significantly over-represent the population of exceptional care rate patients. (Id.) According to Flint, by including so many of the sickest skilled nursing facility patients in his judgmentally-selected sample, Menenberg inflated the costs of transitioning current skilled nursing facility residents to home or community-based care. (Id. at 7.) In addition, Flint contends that Menenberg’s sample size was insufficient to make
31

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estimates for a population of approximately 9,000. (Id. at 7.) Finally, Flint points out that Menenberg relied on one nurse to develop projected service plans, and that her employment by HFS suggests the possibility of bias. (Id. at 7-8.)
With regard to the group of current PWD participants whose benefits would, according to Defendant, increase, were Grooms to prevail, Flint identifies what he believes are several flaws with the Menenberg analysis. First, Flint observes, there is no basis for Menenberg’s assumption that current Medicaid policies–including utilization review and medical necessity guidelines–will be abandoned in favor of giving Medicaid-eligible individuals whatever benefits they seek. (Flint Rept. at 9.) Flint also disagrees with Menenberg’s opinion that all PWD beneficiaries would be eligible for additional benefits: only 3.3% of the current PWD beneficiary population–or 864 individuals–are currently receiving assistance that reaches the SCM cap. (Id. at 11.) Thus, the other 96.7% of PWD waiver recipients presumably do not require and would not be eligible for additional Medicaid benefits, were the SCM cap raised or removed. Thus, any alteration to the SCM would only impact a small minority of PWD waiver recipients. Flint also points out that Grooms’s current care plan entitles him to exceptional care. Grooms’s exceptional care rate exceeds the highest current SCM cap, and thus it is unclear to Flint why current PWD beneficiaries (most of whom, as explained above, are not entitled to the exceptional care rate) would benefit in any way from a decision altering Grooms’s Medicaid benefits. (Id.)6
Correcting for these claimed flaws in Menenberg’s analysis, Flint provides his own cost estimates. With respect to impact on the group of current nursing-facility residents, Flint estimates that the cost to the State, were Groom to prevail (and the same relief accorded to all similarly situated individuals) ranges from less than zero to, at most, $6 million. (Flint Rept. at 8.) With

6

The Seventh Circuit highlighted but deferred ruling on this issue in Radaszewski, 383

F.3d 599. There, the court deemed it “not immediately apparent” whether the relevant group of

disabled persons for purposes of a fundamental-alteration defense should be defined. Id. at 614

n.5.

32

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regard to current PWD participants, Flint estimates that the cost of generalizing the more generous PWD waiver Grooms seeks would range from zero dollars to, in the event of a 30% increase in benefits afforded to all 864 eligible PWD beneficiaries, $456,372. (Flint Rept. at 11.) Suggesting that these numbers are likely over-estimates, Flint points out that Illinois is “over-bedded” in nursing facilities: it has only 4.3% of the United States population, but 5.1% of the nation’s skilled nursing facilities and 6% of the nation’s skilled nursing facility beds. (Flint Rept. at 12.)7 Likewise, Illinois spends 7.5% of its annual Medicare expenditures for beneficiaries on skilled nursing facilities, compared to an average of 5.4% for other states. (Id. at 13.) He also points out that individuals whose medical needs would not qualify them for institutionalization in other states are deemed appropriate for entry into skilled nursing facilities in Illinois. (Id.) Thus, Flint identifies a bias toward institutionalization in Illinois, and a resistance, in Illinois’s Medicaid program, to provision of home or community-based care. (Id.)
Considering substantially similar analyses from Menenberg and Flint, one district court has found Menenberg’s opinions devoid of reliable principles and methodology and deemed them not credible or persuasive. Radaszewski, 2008 WL 2097382, at *10-12. Addressing the population of currently institutionalized individuals who might seek home or community-based care, that court noted that Menenberg had not identified any individuals in a situation similar to that of Eric Radaszewski, in that his needs could not be met with a nursing facility level of care. Id. at *11. The same is true here: Menenberg has focused on all Illinois nursing facility residents, rather than isolating the discrete group of individuals who require hospital-level care. The Radaszewski court found significant Menenberg’s failure to use random sampling and his reliance on the assessments of a single, HFS-employed nurse. Id. at *12. With regard to the population of current PWD

7

This circumstance suggests the possibility that in order to balance the state Medicaid

budget, a certain percentage of the institutional beds be full. If the circumstance is the basis for

the state’s resistance to providing home or community-based care for individuals with extraordinary

needs, it has failed to make this explicit.

33

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beneficiaries, Judge Darrah rejected, as unsubstantiated, Menenberg’s premise that all HSP participants would seek and receive additional services up to and beyond the SCM cap. Id. at *11. There, as in this case, Menenberg had failed to identify any individual in a similar situation to the plaintiff, with similar needs and requirements. Id. Based in part on his analysis of the expert opinions, on May 9, 2008, Judge Darrah entered a permanent injunction enjoining HFS from reducing Eric’s coverage to anything less than sixteen hours per day of skilled nursing services provided by a registered nurse at Eric’s parents’ home seven days per week as well as an additional 336 hours per year of respite care. Opinion and Order, Radaszewski v. Maram, No. 01 C 9551 (N.D. Ill. May 9, 2008). At this stage, the court concludes that Menenberg’s calculations are not sufficient to entitle Defendant to summary judgment in this case.
CONCLUSION For the reasons set forth above, Defendant Barry S. Maram’s Motion for Summary Judgment (149) is denied. Plaintiff David Grooms has not sought summary judgment in his favor. As explained above, the court expects, to grant Plaintiff David Grooms preliminary relief. Accordingly a status hearing is set for Monday, June 9, 2008, at 9:00 a.m., at which the court will determine the preliminary and/or permanent relief to which Grooms is entitled. Finally, the court notes that, during the course of briefing the pending motions, the parties have not answered several questions significant to this litigation. The court therefore invites additional submissions to illuminate certain issues that remain unclear, many of which were identified by the Seventh Circuit as critical to any final decision in this case: 1. Where would Grooms receive care if he is no longer able to continue receiving care
at home (e.g. state-run institution or private facility)? See Radaszewski, 383 at 614. 2. If Grooms were placed in an institution, what services would he receive in this
institution? See Radaszewski, 383 at 610. In particular, would Grooms be entitled to private-duty nursing care? 3. If Grooms were placed in an institution, would HFS be required to provide him with the level of care he needs in order to survive? See Radaszewski, 383 at 611.
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4. If Grooms were placed in an institution, what amount would the services Grooms would receive there cost the State? See Radaszewski, 383 at 613-14.
5. If Grooms continues to receive home care, what amount would home care at a hospital-level of care cost the state? See Radaszewski, 383 at 613-14.
6. If Grooms continues to receive home care, what other costs would the state bear, considering that enabling Grooms to receive home care would not necessarily permit the state to close or reduce the size of its existing institutions? See Radaszewski, 383 at 614.
7. Given that the court must take into account the needs of “other persons with the same broad type of disabilities” to assess a fundamental alteration defense, what is the relevant group of disabled persons in this case, for purposes of making this calculation? See Radaszewski, 383 at 614 n.4.
8. Given that the court must taken into account the broader context of the State’s Medicaid program, what impact do the empty beds Flint has identified have on the cost-benefit analysis in this action?
ENTER:

Dated: May 30, 2008

_________________________________________ REBECCA R. PALLMEYER United States District Judge

35

 
 Case: 1:06-cv-02211 As of: 02/02/2011 09:11 AM CST 1 of 16
ASHMAN, PROTO, TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 4.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:06−cv−02211

Grooms v. Maram Assigned to: Honorable Rebecca R. Pallmeyer Cause: 42:12101 Americans with Disabilities Act
Plaintiff

Date Filed: 04/20/2006 Date Terminated: 06/13/2008 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

David Grooms

represented by Karen I. Ward Equip for Equality 20 North Michigan Suite 300 Chicago, IL 60602 (312) 341−0022 Email: karen@equipforequality.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Byron L. Mason Equip for Equality 20 North Michigan Suite 300 Chicago, IL 60602 (312) 341−0022 Email: byron@equipforequality.org ATTORNEY TO BE NOTICED

V.
Defendant
Barry S Maram Director, Illinois Department of Healthcare and Family Services,

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

Case: 1:06-cv-02211 As of: 02/02/2011 09:11 AM CST 2 of 16

V. Respondent Roberta Sue Coonrod
Respondent Barbara Ginder
Respondent Canda Scott

represented by Karen Elaine Konieczny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Samuel Gange (See above for address) ATTORNEY TO BE NOTICED
John E. Huston (See above for address) ATTORNEY TO BE NOTICED
represented by Karen Elaine Konieczny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Samuel Gange (See above for address) ATTORNEY TO BE NOTICED
John E. Huston (See above for address) ATTORNEY TO BE NOTICED
represented by Karen Elaine Konieczny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Samuel Gange (See above for address) ATTORNEY TO BE NOTICED
John E. Huston (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/20/2006 04/20/2006 04/20/2006 04/20/2006 04/24/2006
05/15/2006

# Docket Text
1 COMPLAINT filed by Plaintiff David Grooms. (ar, ) (Entered: 04/21/2006)
2 CIVIL Cover Sheet (ar, ) (Entered: 04/21/2006)
3 ATTORNEY Appearance for Plaintiff David Grooms by Byron L. Mason. (ar, ) (Entered: 04/21/2006)
5 SUMMONS Issued, original and one copy, as to Defendant Barry S Maram. (ar, ) (Entered: 04/21/2006)
6 MINUTE entry before Judge Rebecca R. Pallmeyer : Status hearing set for 6/23/2006 at 09:00 AM, courtroom 2119. Mailed notice (etv, ) (Entered: 04/24/2006)
7 ATTORNEY Appearance for Defendant Barry S Maram by John E. Huston (Huston, John) (Entered: 05/15/2006)

Case: 1:06-cv-02211 As of: 02/02/2011 09:11 AM CST 3 of 16

05/15/2006 05/15/2006 05/15/2006 05/15/2006 05/17/2006
06/15/2006
06/19/2006 07/13/2006
08/28/2006 08/31/2006 08/31/2006 09/05/2006 09/06/2006 09/27/2006 10/02/2006 10/02/2006

8 ATTORNEY Appearance for Defendant Barry S Maram by Christopher Samuel Gange (Gange, Christopher) (Entered: 05/15/2006)
9 ATTORNEY Appearance for Defendant Barry S Maram by Karen Elaine Konieczny (Konieczny, Karen) (Entered: 05/15/2006)
10 DEFENDANT'S ANSWER to Complaint and AFFIRMATIVE DEFENSES by Barry S Maram(Gange, Christopher) (Entered: 05/15/2006)
11 ATTORNEY Appearance for Defendant Barry S Maram by John E. Huston (Huston, John) (Entered: 05/15/2006)
12 MINUTE entry before Judge Rebecca R. Pallmeyer : Status hearing set for 6/23/2006 is stricken. The parties are directed to appear through lead counsel for a pretrial conference pursuant to Fed.R.Civ.P. 16 on 6/15/2006 at 09:00 AM. Counsel are requested promptly to meet face−to−face for a discussion of possible settlement and for preparation of a planning report. The form is accessible from the court's Internet site. Such report shall be submitted to Judge Pallmeyer in chambers no later than two business days prior to the conference. Mailed notice (etv, ) (Entered: 05/17/2006)
13 MINUTE entry before Judge Rebecca R. Pallmeyer : Rule 16 conference held on 6/15/2006. Plaintiff shall comply with FRCP(26)(a)(2) by 1/15/2007. Defendant shall comply with FRCP(26)(a)(2) by 2/26/2007. The parties shall tender any rebuttal reports by 3/26/2007. Discovery ordered closed by 4/27/2007. Dispositive motions with supporting memoranda due by 5/29/2007. Status hearing set for 9/7/2006 at 08:45 AM. Jury Trial set for 7/16/2007 at 09:30 AM. Mailed notice (etv, ) (Entered: 06/15/2006)
14 EXECUTIVE COMMITTEE ORDER:Case referred to Magistrate Judge Martin C. Ashman for settlement conference pursuant to Local Rule 72.1, signed by Judge Rebecca R. Pallmeyer on 06/15/06, signed by Executive Committee on 06/19/06. (See order for further detail). Mailed notice(ar, ) (Entered: 06/21/2006)
15 MINUTE entry before Judge Martin C. Ashman : Settlement Conference set for 8/28/2006 at 11:00 AM. in chambers 1366. All clients and parties with full authority to settle are to be physically present. Failure to have parties with full authority to settle present may result in the imposition of severe sanctions. (For further details see standing order on the court's web site at www.ilnd.uscourts.gov.) Mailed notice. (is, ) (Entered: 07/13/2006)
16 MINUTE entry before Judge Martin C. Ashman : Settlement conference held and continued to 9/28/2006 at 11:00 AM. Mailed notice. (is, ) (Entered: 08/28/2006)
17 MOTION by Defendant Barry S Maram for leave to file Amended Answer to Plaintiff's Complaint (Huston, John) (Entered: 08/31/2006)
18 NOTICE of Motion by John E. Huston for presentment of motion for leave to file 17 before Honorable Rebecca R. Pallmeyer on 9/7/2006 at 08:45 AM. (Huston, John) (Entered: 08/31/2006)
19 MINUTE entry before Judge Rebecca R. Pallmeyer : Defendant's motion for leave to amend his Answer to Plaintiff's complaint 17 is granted. Status hearing set for 9/7/2006 is stricken and reset to 10/5/2006 at 8:45. Mailed notice (ar, ) (Entered: 09/06/2006)
20 AMENDED Answer by Defendant Barry S Maram to Plaintiff' Complaint &Defendant's Affirmative Defenses (Huston, John) (Entered: 09/06/2006)
21 MINUTE entry before Judge Martin C. Ashman : Settlement Conference reset to 10/13/2006 at 11:00 AM. Mailed notice. (is, ) (Entered: 09/27/2006)
22 MOTION by Defendant Barry S Maram to compel Plaintiff's Answers to Defendant's First Set of Interrogatories (Huston, John) (Entered: 10/02/2006)
23 NOTICE of Motion by John E. Huston for presentment of motion to compel 22 before Honorable Rebecca R. Pallmeyer on 10/5/2006 at 08:45 AM. (Huston, John) (Entered: 10/02/2006)

Case: 1:06-cv-02211 As of: 02/02/2011 09:11 AM CST 4 of 16

10/05/2006
10/13/2006 10/16/2006 10/16/2006 10/17/2006 10/27/2006 10/30/2006 11/17/2006 11/22/2006 11/22/2006 11/30/2006 11/30/2006
12/05/2006 01/29/2007 02/26/2007 02/26/2007 02/28/2007 03/05/2007 03/13/2007

24 MINUTE entry before Judge Rebecca R. Pallmeyer : Status hearing held on 10/5/2006. Defendant's motion to compel Plaintiff's answers to Defendant's first set of interrogatories 22 is withdrawn without prejudice. Status hearing set for 12/5/2006 at 8:45. Mailed notice (ar, ) (Entered: 10/12/2006)
25 MINUTE entry before Judge Martin C. Ashman : Settlement conference held and continued to 10/27/2006 at 02:00 PM. Mailed notice. (is, ) (Entered: 10/13/2006)
26 MOTION by Defendant Barry S Maram for extension of time to Respond to Plaintiff's First Production Request to Defendant (Gange, Christopher) (Entered: 10/16/2006)
27 NOTICE of Motion by Christopher Samuel Gange for presentment of motion for extension of time 26 before Honorable Rebecca R. Pallmeyer on 10/18/2006 at 08:45 AM. (Gange, Christopher) (Entered: 10/16/2006)
28 MINUTE entry before Judge Rebecca R. Pallmeyer : Defendant's motion to enlarge time to respond to Plaintiff's first production request to Defendant 22 26 granted to and including 11/6/2006. Mailed notice (ar, ) (Entered: 10/18/2006)
29 MINUTE entry before Judge Martin C. Ashman : Settlement conference held on 10/27/2006. No notice. (is, ) (Entered: 10/27/2006)
30 MINUTE entry before Judge Martin C. Ashman : Settlement Conference continued to 11/30/2006 at 02:00 PM. Mailed notice. (is, ) (Entered: 10/30/2006)
33 MINUTE entry before Judge Rebecca R. Pallmeyer : Defendant's motion to enlarge time to respond to Plaintiff's first set of interrogatories to Defendant 31 granted to and including 12/8/06. Mailed notice (ar, ) (Entered: 11/28/2006)
31 MOTION by Defendant Barry S Maram for extension of time to Respond to Plaintiff's First Set of Interrogatories to Defendant (Gange, Christopher) (Entered: 11/22/2006)
32 NOTICE of Motion by Christopher Samuel Gange for presentment of motion for extension of time 31 before Honorable Rebecca R. Pallmeyer on 12/5/2006 at 08:45 AM. (Gange, Christopher) (Entered: 11/22/2006)
34 MINUTE entry before Judge Martin C. Ashman : Settlement conference held on 11/30/2006 − unsuccessful. Mailed notice. (is, ) (Entered: 11/30/2006)
35 MINUTE entry before Judge Martin C. Ashman : All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Judge Martin C. Ashman no longer referred to the case. Mailed notice (is, ) (Entered: 11/30/2006)
36 MINUTE entry before Judge Rebecca R. Pallmeyer : Status hearing held on 12/5/2006. Status hearing set for 1/29/2007 at 09:00 AM. Mailed notice (etv, ) (Entered: 12/05/2006)
37 MINUTE entry before Judge Rebecca R. Pallmeyer :Status hearing held on 1/29/2007. Status hearing set for 4/25/2007 at 09:00 AM.Mailed notice (etv, ) (Entered: 01/29/2007)
38 MOTION by Defendant Barry S Maram for extension of time to Produce Expert Disclosures under FRCP 26(a)(2) (Huston, John) (Entered: 02/26/2007)
39 NOTICE of Motion by John E. Huston for presentment of extension of time 38 before Honorable Rebecca R. Pallmeyer on 3/6/2007 at 08:45 AM. (Huston, John) (Entered: 02/26/2007)
40 ATTORNEY Appearance for Plaintiff David Grooms by Karen I. Ward (Ward, Karen) (Entered: 02/28/2007)
41 MINUTE entry before Judge Rebecca R. Pallmeyer :Defendant's motion to enlarge time to produce expert disclosures under FRCP 26(a)(2) 38 granted to and including 3/19/07.Mailed notice (eav, ) (Entered: 03/06/2007)
42 MOTION by Plaintiff David Grooms for preliminary injunction. (ar, ) (Entered: 03/14/2007)

Case: 1:06-cv-02211 As of: 02/02/2011 09:11 AM CST 5 of 16

03/13/2007 03/27/2007 03/28/2007
04/05/2007 04/10/2007 04/17/2007 04/17/2007 04/18/2007 04/18/2007 04/18/2007 04/18/2007 04/19/2007 04/20/2007 04/24/2007
05/18/2007 05/18/2007
05/21/2007

43 NOTICE of Motion by Plaintiff David Grooms for presentment of his motion for injunction 42 before Honorable Rebecca R. Pallmeyer on 3/28/2007 at 08:45 AM. (ar, ) (Entered: 03/14/2007)
44 OBJECTIONS to Plaintiff's Motion for Preliminary Injunction (Huston, John) (Entered: 03/27/2007)
45 MINUTE entry before Judge Rebecca R. Pallmeyer : Plaintiff's motion for preliminary injunction 42 entered and continued to 4/16/2007 at 9:30. Within seven (7) days, Plaintiff to submit affidavits of his three proposed preliminary injunction hearing witnesses. Defendant's response, if any, 7 days thereafter. Status hearing set for 4/16/2007 at 9:30. (ar, ) (Entered: 03/29/2007)
46 NOTICE by David Grooms of Withdrawal of Plaintiff's Motion for Preliminary Injunction (Attachments: # 1 Certificate of Service)(Ward, Karen) (Entered: 04/05/2007)
47 MINUTE entry before Judge Rebecca R. Pallmeyer : Plaintiff's motion for preliminary injunction 42 is withdrawn. Status hearing set for 4/16/2007 is stricken and reset to 5/31/2007 at 9:00. (ar, ) (Entered: 04/11/2007)
48 INCORRECT document linked. (Mason, Byron). Modified on 4/18/2007 (ar, ). (Entered: 04/17/2007)
49 NOTICE of Motion by Byron L. Mason for presentment of motion for extension of time to complete discovery 48 before Honorable Rebecca R. Pallmeyer on 4/23/2007 at 08:45 AM. (Mason, Byron) (Entered: 04/17/2007)
50 MOTION by Plaintiff David Grooms for extension of time to complete discovery (Mason, Byron) (Entered: 04/18/2007)
51 NOTICE of Motion by Byron L. Mason for presentment of motion for extension of time to complete discovery 50 before Honorable Rebecca R. Pallmeyer on 4/23/2007 at 08:45 AM. (Mason, Byron) (Entered: 04/18/2007)
52 NOTICE of Correction regarding Plaintiff's motion for extension of time to complete discovery 48 . (ar, ) (Entered: 04/18/2007)
53 MINUTE entry before Judge Rebecca R. Pallmeyer : Motion for extension of time 48 was filed in error and should be terminated. Mailed notice (ar, ) Modified on 4/19/2007 (ar, ). (Entered: 04/19/2007)
54 Re−Notice of Motion NOTICE of Motion by Byron L. Mason for presentment of motion for extension of time to complete discovery 50 before Honorable Rebecca R. Pallmeyer on 4/24/2007 at 08:45 AM. (Mason, Byron) (Entered: 04/19/2007)
55 OBJECTIONS by Barry S Maram to MOTION by Plaintiff David Grooms for extension of time to complete discovery 50 (Attachments: # 1 Exhibit A and B)(Konieczny, Karen) (Entered: 04/20/2007)
56 MINUTE entry before Judge Rebecca R. Pallmeyer : Plaintiff's motion for enlargement of time to complete discovery and to produce expert disclosures 50 granted in part and denied in part. Plaintiff may disclose his expert on or before May 7, 2007. Defendant has leave to depose Plaintiff's expert and submit a report in response by 5/28/2007. The motion is otherwise denied. Status hearing set for 5/31/2007 at 9:00 to stand. (ar, ) (Entered: 04/24/2007)
57 MOTION by Plaintiff David Grooms to reassign case Motion for Referral Back to Magistrate Judge Ashman for Further Settlement Conference (Mason, Byron) (Entered: 05/18/2007)
58 Notice of Motion re: Motion for Referral Back to Magistrate Ashman for Further Settlement Conference NOTICE of Motion by Byron L. Mason for presentment of motion to reassign case 57 before Honorable Rebecca R. Pallmeyer on 5/24/2007 at 08:45 AM. (Mason, Byron) (Entered: 05/18/2007)
59 OBJECTIONS by Barry S Maram to MOTION by Plaintiff David Grooms to reassign case Motion for Referral Back to Magistrate Judge Ashman for Further Settlement Conference 57 (Huston, John) (Entered: 05/21/2007)

Case: 1:06-cv-02211 As of: 02/02/2011 09:11 AM CST 6 of 16

05/24/2007
05/29/2007 05/29/2007 05/29/2007 05/29/2007 05/29/2007
05/30/2007 05/30/2007
06/04/2007
06/08/2007 06/08/2007 06/11/2007
06/11/2007 06/12/2007

60 MINUTE entry before Judge Rebecca R. Pallmeyer : Plaintiff's motion to reassign case for referral back to Magistrate Judge Ashman for further settlement conference (57) is denied, but the court directs the parties to confirm in writing within seven days that they have again attempted to resolve the case. Plaintiff to prepare a proposed draft final pretrial order by 6/18/2007; Joint Final Pretrial Order due 6/29/2007. The status hearing set for 5/31/2007 is stricken.Mailed notice (slb, ) (Entered: 05/24/2007)
61 MOTION by Plaintiff David Grooms for partial summary judgment (Ward, Karen) (Entered: 05/29/2007)
62 Memorandum in Support of Plaintiff's Motion for Partial Summary Judgment (Attachments: # 1 Exhibit Exhibit A: Complaint# 2 Exhibit Exhibit B: Amended Answer# 3 Exhibit Exhibit C: Menenberg Report# 4 Exhibit Exhibit D: Sidell Decision)(Ward, Karen) Modified on 5/31/2007 (mb, ). (Entered: 05/29/2007)
63 Plaintiff's Rule 56.1(a)(3) Statement of Material Facts (Ward, Karen) Modified on 5/31/2007 (mb, ). (Entered: 05/29/2007)
64 NOTICE of Motion by Karen I. Ward for presentment of before Honorable Rebecca R. Pallmeyer on 6/4/2007 at 08:45 AM. (Ward, Karen) Modified on 5/31/2007 (mb, ). (Entered: 05/29/2007)
65 CERTIFICATE of Service by Plaintiff David Grooms regarding MOTION by Plaintiff David Grooms for partial summary judgment Plaintiff's Rule 56.1(a)(3) Statement of Material Facts 63 , MOTION by Plaintiff David Grooms for partial summary judgment 61 , notice of motion 64 , MOTION by Plaintiff David Grooms for partial summary judgment Memorandum in Support of Plaintiff's Motion for Partial Summary Judgment 62 (Ward, Karen) (Entered: 05/29/2007)
66 MOTION by Plaintiff David Grooms for partial summary judgment Corrected Rule 56.1(a)(3) Statement of Material Facts (Ward, Karen) (Entered: 05/30/2007)
67 MINUTE entry before Judge Rebecca R. Pallmeyer : Plaintiffs original Rule 56.1 statement has been amended; the original version (63) is therefore stricken as moot. The amended Rule 56.1 statement and a memorandum in support of Plaintiffs motion for summary judgment were docketed in error as motions. These documents (62, 66) will remain pending in support of Plaintiffs motion for summary judgment, but the Clerk is directed to terminate their status as motions. (mb, ) (Entered: 05/31/2007)
68 MINUTE entry before Judge Rebecca R. Pallmeyer : Response to Plaintiff's motion for partial summary judgment 61 to be filed by or on 6/20/2007; reply 6/29/2007. Ruling set for 7/10/2007 at 9:00. Final Pretrial Order extended to 7/16/2007. Jury trial set for 7/16/2007 is stricken. Bench trial set for 7/19/2007 at 9:30. Mailed notice (mb, ) (Entered: 06/05/2007)
69 MOTION by Defendant Barry S MaramLeave to Serve Requests to Admit and Shorten the Time for Response (Huston, John) (Entered: 06/08/2007)
70 NOTICE of Motion by John E. Huston for presentment of motion for miscellaneous relief 69 before Honorable Rebecca R. Pallmeyer on 6/12/2007 at 08:45 AM. (Huston, John) (Entered: 06/08/2007)
71 RESPONSE by David Groomsin Opposition to MOTION by Defendant Barry S MaramLeave to Serve Requests to Admit and Shorten the Time for Response 69 Plaintiff Opposition to Defendant Motion for Leave to Serve 75 Requests to Admit After the Close of Discovery and to Shorten Plaintiff's Time in Response (Mason, Byron) (Entered: 06/11/2007)
72 NOTICE by David Grooms re response in opposition to motion, 71 Notice of Filing re: Plaintiff's Opposition to Defendant's Motion for Leave to Serve 75 Requests to Admit After the Close of Discovery and to Shorten Plaintiff's Time for Response (Mason, Byron) (Entered: 06/11/2007)
73 MINUTE entry before Judge Rebecca R. Pallmeyer :Defendant's motion for leave to serve requests to admit and shorten the time for response 69 is denied. Mailed notice (air, ) (Entered: 06/12/2007)

Case: 1:06-cv-02211 As of: 02/02/2011 09:11 AM CST 7 of 16

06/19/2007 06/20/2007 06/20/2007 06/20/2007
06/20/2007 06/29/2007 06/29/2007 06/29/2007 06/29/2007 06/29/2007
06/29/2007 07/10/2007
07/12/2007 07/12/2007 07/12/2007 07/12/2007 07/12/2007 07/12/2007 07/13/2007

74 Defendant's Rule 26(a)(3) Pretrial Disclosures by Barry S Maram (Gange, Christopher) (Entered: 06/19/2007)
75 RESPONSE by Defendant Barry S Maram to Plaintiff's Rule 56.1(a)(3) Statement of Material Facts (Konieczny, Karen) (Entered: 06/20/2007)
76 RESPONSE by Barry S Maramin Opposition to MOTION by Plaintiff David Grooms for partial summary judgment 61 (Konieczny, Karen) (Entered: 06/20/2007)
77 Defendant's Exhibits and Supporting Materials by Barry S Maram in Response to Plaintiff's Motion for Partial Summary Judgment (Attachments: # 1 Exhibit C−1# 2 Exhibit C−2# 3 Exhibit C−3# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F−H# 7 Exhibit I−J)(Konieczny, Karen) (Entered: 06/20/2007)
78 NOTICE by Barry S Maram re Response 75 , other, 77 , response in opposition to motion 76 and Certificate of Service (Konieczny, Karen) (Entered: 06/20/2007)
79 REPLY by David Grooms to response in opposition to motion 76 for partial summary judgment (Ward, Karen) (Entered: 06/29/2007)
80 MOTION by Defendant Barry S Maram for protective order (Agreed) Governing Discovery Material (Huston, John) (Entered: 06/29/2007)
81 NOTICE by David Grooms re reply to response to motion 79 NOTICE OF FILING (Ward, Karen) (Entered: 06/29/2007)
82 NOTICE of Motion by John E. Huston for presentment of motion for protective order 80 before Honorable Rebecca R. Pallmeyer on 7/5/2007 at 08:45 AM. (Huston, John) (Entered: 06/29/2007)
83 MINUTE entry before Judge Rebecca R. Pallmeyer : Agreed motion for entry of protective order governing discovery material 80 , granted. Enter Agreed Protective Order Governing Discovery Material. (For further detail see separate order). (ar, ) (Entered: 07/06/2007)
84 AGREED Protective Order Governing Discovery Material, signed by Judge Rebecca R. Pallmeyer on 6/29/2007 83 . (ar, ) (Entered: 07/06/2007)
85 MINUTE entry before Judge Rebecca R. Pallmeyer : Hearing on Plaintiff's motion for partial summary judgment 61 held. Ruling to be made by mail. Plaintiff toprovide draft of the Final Pretrial Order to counsel for Defendant on or before 7/12/2007. (ar, ) (Entered: 07/12/2007)
86 MOTION to quash Trial Subpoena ad Testificandum by Non−Party Roberta Sue Coonrod (Attachments: # 1 Exhibit A − C)(Konieczny, Karen) (Entered: 07/12/2007)
87 Certificate of Service and NOTICE of Motion by Karen Elaine Konieczny for presentment of motion to quash 86 before Honorable Rebecca R. Pallmeyer on 7/17/2007 at 08:45 AM. (Konieczny, Karen) (Entered: 07/12/2007)
88 MOTION to quash Trial Subpoena ad Testificandum by Non−Party Barbara Ginder (Attachments: # 1 Exhibit A − C)(Konieczny, Karen) (Entered: 07/12/2007)
89 Certificate of Service and NOTICE of Motion by Karen Elaine Konieczny for presentment of motion to quash 88 before Honorable Rebecca R. Pallmeyer on 7/17/2007 at 08:45 AM. (Konieczny, Karen) (Entered: 07/12/2007)
90 MOTION to quash Trial Subpoena as Testificandum by Non−Party Canda Scott (Attachments: # 1 Exhibit A − C)(Konieczny, Karen) (Entered: 07/12/2007)
91 Certificate of Service and NOTICE of Motion by Karen Elaine Konieczny for presentment of motion to quash 90 before Honorable Rebecca R. Pallmeyer on 7/17/2007 at 08:45 AM. (Konieczny, Karen) (Entered: 07/12/2007)
92 ATTORNEY Appearance for Respondents Roberta Sue Coonrod, Barbara Ginder, Canda Scott by Karen Elaine Konieczny (Konieczny, Karen) (Entered: 07/13/2007)

Case: 1:06-cv-02211 As of: 02/02/2011 09:11 AM CST 8 of 16

07/16/2007 07/16/2007 07/16/2007 07/16/2007 07/16/2007 07/16/2007 07/17/2007
07/19/2007 08/16/2007 08/16/2007 08/20/2007 08/21/2007 09/04/2007 09/04/2007 09/04/2007 09/04/2007

93 ATTORNEY Appearance for Respondents Roberta Sue Coonrod, Barbara Ginder, Canda Scott by Christopher Samuel Gange (Gange, Christopher) (Entered: 07/16/2007)
94 ATTORNEY Appearance for Respondents Roberta Sue Coonrod, Barbara Ginder, Canda Scott by John E. Huston (Huston, John) (Entered: 07/16/2007)
95 Defendant's Amended Rule 26(a)(3) Pretrial Disclosures by Barry S Maram (Gange, Christopher) (Entered: 07/16/2007)
96 MOTION by Defendant Barry S Maram for sanctions For Failure to Comply with Pretrial Order (Attachments: # 1 Exhibit A through C)(Konieczny, Karen) (Entered: 07/16/2007)
97 Certificate of Service and NOTICE of Motion by Karen Elaine Konieczny for presentment of motion for sanctions 96 before Honorable Rebecca R. Pallmeyer on 7/18/2007 at 08:45 AM. (Konieczny, Karen) (Entered: 07/16/2007)
98 NOTICE by David Grooms Notice of Filing Plaintiff's Proposed Pretrial Order (Attachments: # 1 Text of Proposed Order Plaintiff's proposed Pretrial Order)(Ward, Karen) (Entered: 07/16/2007)
99 MINUTE entry before Judge Rebecca R. Pallmeyer : Plaintiff having withdrawn the subpoena with respect to Roberta Sue Coonrod, the motion to quash trial subpoena 86 is withdrawn as moot. As Barbara Ginder and Canda Scott have been identified as Defendant's witnesses, the motions to quash their trial subpoenas 88 , 90 , are denied. The court directs that Ms. Ginder and Ms. Scott be available to testify in Plaintiff's case−in−chief. Defendant's motion for sanctions 96 is stricken as moot. Plaintiff's summary judgment on Defendant's first and second affirmative defense 61 is denied without prejudice. Bench trial set for 7/18/2007 is stricken and reset to 10/31/2007 at 9:30. Final Pretrial Order to be filed on or before 8/31/2007. Status hearing set for 9/6/2007 at 9:00. (ar, ) (Entered: 07/18/2007)
100 TRANSCRIPT of proceedings for the following dates: 07/10/07 before the Honorable Rebecca R. Pallmeyer. (ar, ) (Entered: 07/20/2007)
101 MOTION by Plaintiff David Grooms for extension of time to file Pre−trial Order (Ward, Karen) (Entered: 08/16/2007)
102 Notice of Motion to Modify Schedule for Filing Pre−trial Order NOTICE of Motion by Karen I. Ward for presentment of motion for extension of time to file 101 before Honorable Rebecca R. Pallmeyer on 8/21/2007 at 08:45 AM. (Ward, Karen) (Entered: 08/16/2007)
103 OBJECTIONS by Barry S Maram to MOTION by Plaintiff David Grooms for extension of time to file Pre−trial Order 101 and Certificate of Service (Huston, John) (Entered: 08/20/2007)
104 MINUTE entry before Judge Rebecca R. Pallmeyer : Plaintiff's motion to modify schedule for filing Pretrial Order 101 , granted to 9/4/2007. Defendant is directed to provide his sections to Plaintiff on 9/28/2007 in an electronic (non−.pdf) format, and is free to delete metadata. (ar, ) (Entered: 08/23/2007)
105 MOTION by Defendant Barry S Maramin limine To Bar Plaintiff From Using As Evidence the Deposition of Barbara Ginder (Attachments: # 1 Exhibit A)(Konieczny, Karen) (Entered: 09/04/2007)
106 NOTICE by Barry S Maram re MOTION by Defendant Barry S Maramin limine To Bar Plaintiff From Using As Evidence the Deposition of Barbara Ginder 105 and Certificate of Service (Konieczny, Karen) (Entered: 09/04/2007)
107 MOTION by Defendant Barry S Maramin limine to Exclude Testimony From All Plaintiffs' Witness Concerning the COntributions to David Grooms' Care By David's Mother and Father (Attachments: # 1 Exhibit A &B)(Konieczny, Karen) (Entered: 09/04/2007)
108 NOTICE by Barry S Maram re MOTION by Defendant Barry S Maramin limine to Exclude Testimony From All Plaintiffs' Witness Concerning the COntributions to David Grooms' Care By David's Mother and Father 107 with Certificate of Service

Case: 1:06-cv-02211 As of: 02/02/2011 09:11 AM CST 9 of 16

09/04/2007 09/04/2007 09/04/2007 09/04/2007 09/04/2007 09/04/2007 09/04/2007 09/04/2007 09/04/2007 09/04/2007 09/04/2007 09/04/2007 09/04/2007 09/04/2007 09/04/2007

(Konieczny, Karen) (Entered: 09/04/2007)
109 MOTION by Defendant Barry S Maramin limine to Exclude Testimony By Dr. Keen and All Evidence Concerning Plaintiff's Medical Condition Since October 8, 2005 As A Discovery Sanction (Attachments: # 1 Exhibit A through E)(Konieczny, Karen) (Entered: 09/04/2007)
110 NOTICE by Barry S Maram re MOTION by Defendant Barry S Maramin limine to Exclude Testimony By Dr. Keen and All Evidence Concerning Plaintiff's Medical Condition Since October 8, 2005 As A Discovery Sanction 109 with Certificate of Service (Konieczny, Karen) (Entered: 09/04/2007)
111 MOTION by Defendant Barry S Maramin limine to Exclude Evidence Concerning Anything That Occurred Prior to David Grooms' Reaching the Age of 21 (Konieczny, Karen) (Entered: 09/04/2007)
112 NOTICE by Barry S Maram re MOTION by Defendant Barry S Maramin limine to Exclude Evidence Concerning Anything That Occurred Prior to David Grooms' Reaching the Age of 21 111 with Certificate of Service (Konieczny, Karen) (Entered: 09/04/2007)
113 MOTION by Defendant Barry S Maramin limine to Exclude All Plaintiff's Exhibits Not Disclosed During Discovery (Attachments: # 1 Exhibit A &B)(Konieczny, Karen) (Entered: 09/04/2007)
114 NOTICE by Barry S Maram re MOTION by Defendant Barry S Maramin limine to Exclude All Plaintiff's Exhibits Not Disclosed During Discovery 113 with Certificate of Service (Konieczny, Karen) (Entered: 09/04/2007)
115 MOTION by Defendant Barry S Maramin limine to Exclude All Plaintiff's Witnesses Not Disclosed During Discovery (Attachments: # 1 Exhibit A &B)(Konieczny, Karen) (Entered: 09/04/2007)
116 NOTICE by Barry S Maram re MOTION by Defendant Barry S Maramin limine to Exclude All Plaintiff's Witnesses Not Disclosed During Discovery 115 with Certificate of Service (Konieczny, Karen) (Entered: 09/04/2007)
117 MOTION by Defendant Barry S Maramin limine to Exclude All Evidence Concerning Plaintiff's Claim that He Is A Qualified Individual With A Disability, etc. (Attachments: # 1 Exhibit A &B)(Konieczny, Karen) (Entered: 09/04/2007)
118 NOTICE by Barry S Maram re MOTION by Defendant Barry S Maramin limine to Exclude All Evidence Concerning Plaintiff's Claim that He Is A Qualified Individual With A Disability, etc. 117 with Certificate of Service (Konieczny, Karen) (Entered: 09/04/2007)
119 MOTION by Defendant Barry S Maramin limine to Exclude Evidence From Samuel S. Flint, Ph.D. (Attachments: # 1 Exhibit A)(Konieczny, Karen) (Entered: 09/04/2007)
120 NOTICE by Barry S Maram re MOTION by Defendant Barry S Maramin limine to Exclude Evidence From Samuel S. Flint, Ph.D. 119 with Certificate of Service (Konieczny, Karen) (Entered: 09/04/2007)
121 MOTION by Defendant Barry S Maramin limine to Bar Plaintiff' From Presenting Evidence Comparing His Cost of Home−Based Care to Cost of Care in any Other Setting, etc. (Attachments: # 1 Exhibit A &B)(Konieczny, Karen) (Entered: 09/04/2007)
122 NOTICE by Barry S Maram re MOTION by Defendant Barry S Maramin limine to Bar Plaintiff' From Presenting Evidence Comparing His Cost of Home−Based Care to Cost of Care in any Other Setting, etc. 121 with Certificate of Service (Konieczny, Karen) (Entered: 09/04/2007)
123 MOTION by Defendant Barry S Maramin limine to Bar Plaintiff From Presenting Evidence How Plaintiff Would Be Isolated If He Does Not Receive In−Home Care (Attachments: # 1 Exhibit A &B)(Konieczny, Karen) (Entered: 09/04/2007)

Case: 1:06-cv-02211 As of: 02/02/2011 09:11 AM CST 10 of 16

09/04/2007 09/04/2007 09/06/2007
09/21/2007 09/26/2007 09/26/2007 09/26/2007 09/26/2007 09/26/2007 09/26/2007 09/26/2007 09/26/2007
09/27/2007
09/27/2007

124 NOTICE by Barry S Maram re MOTION by Defendant Barry S Maramin limine to Bar Plaintiff From Presenting Evidence How Plaintiff Would Be Isolated If He Does Not Receive In−Home Care 123 with Certificate of Service (Konieczny, Karen) (Entered: 09/04/2007)
125 NOTICE by David Grooms Noticeof Filing proposed Final Pretrial Order (Attachments: # 1 Text of Proposed Order Final Pretrial Order)(Ward, Karen) (Entered: 09/04/2007)
126 MINUTE entry before Judge Rebecca R. Pallmeyer: Status hearing held on 9/6/2007. Defendants' pretrial motions are entered and continued. Plaintiff's responses to those motions, and plaintiff's own motions in limine, to be filed on or before 9/27/20007. Defendants to reply by 10/9/2007. Final pretrial conference is set for 10/15/2007 at 10:00 a.m. Before addressing any further disputes between counsel, whether presented in writing or orally, the court will require a certification that counsel have communicated with one another by telephone or face to face in a good−faith attempt to resolve their differences. Mailed notice by judge's staff. (srb,) (Entered: 09/07/2007)
127 TRANSCRIPT of proceedings for the following dates: 07/17/07 before the Honorable Rebecca R. Pallmeyer. (ar, ) (Entered: 09/25/2007)
128 MEMORANDUM by David Grooms in Opposition to motion in limine 121 to Bar Plaintiff from Presenting Cost−comparison Evidence etc (Ward, Karen) (Entered: 09/26/2007)
129 MEMORANDUM by David Grooms in Opposition to motion in limine 105 to Bar Plaintiff from Using as Evidence the Deposition of Barbara Ginder in Fisher v. Maram (Ward, Karen) (Entered: 09/26/2007)
130 MEMORANDUM by David Grooms in Opposition to motion in limine 107 to exclude evidence concerning contributions of Plaintiff's parents to his care (Ward, Karen) (Entered: 09/26/2007)
131 MEMORANDUM by David Grooms in Opposition to motion in limine 115 to exclude all Plaintiff's witnesses not disclosed in discovery (Ward, Karen) (Entered: 09/26/2007)
132 MEMORANDUM by David Grooms in Opposition to motion in limine 111 to exclude testimony concerning anything prior to David Grooms reaching the age of 21 (Ward, Karen) (Entered: 09/26/2007)
133 MEMORANDUM by David Grooms in Opposition to motion in limine 113 to exclude all exhibits not disclosed in discovery (Ward, Karen) (Entered: 09/26/2007)
134 MEMORANDUM by David Grooms in Opposition to motion in limine 123 to bar Plaintiff from presenting evidence regarding isolation of Plaintiff (Ward, Karen) (Entered: 09/26/2007)
135 NOTICE by David Grooms re memorandum in opposition to motion 133 , memorandum in opposition to motion 131 , memorandum in opposition to motion 134 , memorandum in opposition to motion 129 , memorandum in opposition to motion 132 , memorandum in opposition to motion 128 , memorandum in opposition to motion 130 Notice of filing seven (7) responses to 7 motions in limine (Ward, Karen) (Entered: 09/26/2007)
136 RESPONSE by David Grooms to MOTION by Defendant Barry S Maramin limine to Exclude Testimony By Dr. Keen and All Evidence Concerning Plaintiff's Medical Condition Since October 8, 2005 As A Discovery Sanction 109 Plaintiff's Response to Defendant's Motion in Limine to Exclude Testimony by Dr. Keen and All Testimony and All Documents Concerning Plaintiff's Medical Condition Since October 8, 2005 as a Discovery Sanction for Plaintiff's Failure to Comply With Discovery Requests (Mason, Byron) (Entered: 09/27/2007)
137 RESPONSE by David Grooms to MOTION by Defendant Barry S Maramin limine to Exclude Evidence From Samuel S. Flint, Ph.D. 119 Plaintiff's Response to Defendant's Motion in Limine to Exclude Testimony, Report and Documents from

Case: 1:06-cv-02211 As of: 02/02/2011 09:11 AM CST 11 of 16

09/27/2007 09/27/2007
09/27/2007 09/27/2007 09/27/2007
10/09/2007 10/09/2007 10/15/2007
10/30/2007 10/30/2007 10/31/2007
11/30/2007 11/30/2007 11/30/2007

Samuel S.Flint, Ph.D (Mason, Byron) (Entered: 09/27/2007)
138 MEMORANDUM by David Grooms in Opposition to motion in limine 117 to Exclude All Evidence Concerning Plaintiff's Claim that He Is A Qualified Individual With A Disability, etc (Ward, Karen) (Entered: 09/27/2007)
139 NOTICE by all defendants Notice of Filing re: 1) Plaintiff's Response to Defendant's Motion in Limine to Exclude Testimony by Dr. Keen and All Testimony and All Documents Concerning Plaintiff''s Medical Condition Since October 8, 2005 as a Sanction for Plaintiff's Failure to Comply With Discovery Requests, and 2) Plaintiff's Response to Defendant's Motion in Limine to Exclude Testimony, Report and Documents from Samuel S. Flint, Ph.D (Mason, Byron) (Entered: 09/27/2007)
140 MOTION by Plaintiff David Groomsin limine To Bar Defendant's Expert from Testifying and to Strike his Report (Ward, Karen) (Entered: 09/27/2007)
141 by David Grooms Memorandum in Support of Platinff's Motion in Limine to Bar Defendant's Expert &Report (Attachments: # 1 Exhibit A# 2 Exhibit B)(Ward, Karen) (Entered: 09/27/2007)
142 NOTICE by David Grooms re other 141 , memorandum in opposition to motion 138 , MOTION by Plaintiff David Groomsin limine To Bar Defendant's Expert from Testifying and to Strike his Report 140 Notice of filing Pl's Motion in Limine to Exclude Expert,, Memoranadum in Support with Exhibits, and Resonse to Def's Motion in Limine re Pl's Evidence that he is "qualified" etc. (Ward, Karen) (Entered: 09/27/2007)
143 RESPONSE by Barry S Maramin Opposition to MOTION by Plaintiff David Groomsin limine To Bar Defendant's Expert from Testifying and to Strike his Report 140 (Attachments: # 1 Exhibit A)(Konieczny, Karen) (Entered: 10/09/2007)
144 NOTICE by Barry S Maram re response in opposition to motion 143 with Certificate of Service (Konieczny, Karen) (Entered: 10/09/2007)
145 MINUTE entry before Judge Rebecca R. Pallmeyer : Final Pretrial Conference convened. Plaintiff's motion in lmine 140 , denied. Defendant's motions in limine 119 , 121 , 115 , 111 , 109 , 107 , denied. Defendant's motions in limine 123 , 117 , 113 , and 105 are granted. The court confirms that any witness identified by one party must be made available at the request of the opposing party for testimony in that party's case in chief, on at least 48 hours' notice. Plaintiff's mother will have leave to testify by video conference. In Plaintiff's absence, Plaintiff's father may sit at counsel table, but only after he has testified in Plaintiff's case in chief. [For further details see text below.] (ar, ) (Entered: 10/16/2007)
146 ATTORNEY Appearance for Plaintiff David Grooms by Karen I. Ward Appearance of Janet Cartwright (Ward, Karen) (Entered: 10/30/2007)
147 MINUTE entry before Judge Rebecca R. Pallmeyer : Defendant Barry S. Maram's motion in limine to exclude all Plaintiff's Exhibits not Disclosed duringDiscovery 113 was granted on 10/15/2007 and should be terminated. (ar, ) (Entered: 10/31/2007)
148 MINUTE entry before Judge Rebecca R. Pallmeyer : Bench Trial Begins. Opening statements heard. As the parties' openings identified no disputes of fact, the court will entertain Defendant's motion for summary judgment motion; such motion to be filed by or on 11/30/2007; response 12/21/2007; reply 1/7/2008. Bench Trial Ends. (ar, ) (Entered: 11/01/2007)
149 MOTION by Defendant Barry S Maram for summary judgment (Gange, Christopher) (Entered: 11/30/2007)
150 MEMORANDUM by Barry S Maram in support of motion for summary judgment 149 (Gange, Christopher) (Entered: 11/30/2007)
151 RULE 56 56.1(a)(3) Statement by Barry S Maram regarding motion for summary judgment 149 (Gange, Christopher) (Entered: 11/30/2007)

Case: 1:06-cv-02211 As of: 02/02/2011 09:11 AM CST 12 of 16

11/30/2007 11/30/2007 12/03/2007 12/11/2007 12/11/2007 12/12/2007 12/13/2007
12/20/2007 12/20/2007 12/20/2007 12/20/2007
01/07/2008 01/07/2008 01/07/2008 01/08/2008
01/08/2008

152 Defendant's Exhibits and Materials in Support of His Motion for Summary Judgment (Doc. 149) by Barry S Maram (Attachments: # 1 Exhibit SJ A−G, DX 7a−DX 8# 2 Exhibit DX 9# 3 Exhibit DX 14−DX 33# 4 Exhibit DX 59−DX62, PL 30−PL 31, DX 34−DX 58)(Gange, Christopher) (Entered: 11/30/2007)
153 NOTICE by Barry S Maram re memorandum in support of motion 150 , MOTION by Defendant Barry S Maram for summary judgment 149 , Rule 56 statement 151 , other, 152 (Gange, Christopher) (Entered: 11/30/2007)
154 TRANSCRIPT of proceedings for the following dates: 10/15/07 before the Honorable Rebecca R. Pallmeyer. (ar, ) (Entered: 12/04/2007)
155 MOTION by Plaintiff David Grooms to strike memorandum in support of motion 150 , Rule 56 statement 151 (Attachments: # 1 Exhibit Transcript of 10−31−07 Proceedings)(Ward, Karen) (Entered: 12/11/2007)
156 NOTICE of Motion by Karen I. Ward for presentment of motion to strike, motion for relief, 155 before Honorable Rebecca R. Pallmeyer on 12/13/2007 at 08:45 AM. (Ward, Karen) (Entered: 12/11/2007)
157 OBJECTIONS by Barry S Maram to MOTION by Plaintiff David Grooms to strike memorandum in support of motion 150 , Rule 56 statement 151 155 and Certificate of Service (Huston, John) (Entered: 12/12/2007)
158 MINUTE entry before Judge Rebecca R. Pallmeyer :Motion hearing held. Motion to strike 155 is granted with respect to Statement of Fact No. 75. Plaintiff will return copies of Defendant's exhibits so that Defendant can separate them by tabs. The court will scan Defendants Rule 56.1 Statement and furnish the scanned document to both parties electronically. Motion is otherwise denied. Mailed notice (etv, ) (Entered: 12/13/2007)
159 RESPONSE by David Groomsin Opposition to MOTION by Defendant Barry S Maram for summary judgment 149 (Attachments: # 1 Exhibit Exhibit List# 2 Exhibit Exhibits A−D# 3 Exhibit Exhibits E−G)(Ward, Karen) (Entered: 12/20/2007)
160 RULE 56.1(a)(3) Statement by David Grooms regarding motion for summary judgment 149 Plaintiff's Response to Defendant's Rule 56.1(a)(3) Statement (Ward, Karen) (Entered: 12/20/2007)
161 RULE 56.1(a)(3) Statement by David Grooms regarding motion for summary judgment 149 Plaintiff's Statement of Additional Undisputed Facts (Ward, Karen) (Entered: 12/20/2007)
162 NOTICE by David Grooms re Rule 56 statement 160 , Rule 56 statement 161 , response in opposition to motion 159 Notice of Filing Plaintiff's Response to Defendant's Motion for Summary Judgment with Exhibits, Plaintiff's Response to Def's Rule 56 Statement and Plaintiff's Additional Rule 56 Statements (Ward, Karen) (Entered: 12/20/2007)
163 REPLY by Barry S Maram to response in opposition to motion 159 for Summary Judgment (Gange, Christopher) (Entered: 01/07/2008)
164 RULE 56 Local rule 56.1 (b)(3) Statement in Response to Plaintiff's Rule 56.1(a)(3) Statement of Additional Undisputed Fact (#161) (Huston, John) (Entered: 01/07/2008)
165 NOTICE by Barry S Maram re Rule 56 statement 164 , reply to response to motion 163 (Gange, Christopher) (Entered: 01/07/2008)
166 AMENDED Exhibit C by David Grooms in Opposition to MOTION by Defendant Barry S Maram for summary judgment 149 Plaintiff's Amended Exhibit C filed in Support of Response to Defendant's Motion for Summary Judgment (Mason, Byron). (Text edited by Clerk's Office). Modified on 1/9/2008 (ar, ). (Entered: 01/08/2008)
167 NOTICE by David Grooms Notice of Filing Re: Amended Exhibit C in Support of Plaintiff's Response to Defendant's Motion for Summary Judgment (Mason, Byron) (Entered: 01/08/2008)

Case: 1:06-cv-02211 As of: 02/02/2011 09:11 AM CST 13 of 16

01/09/2008 01/09/2008 01/11/2008
01/11/2008 01/11/2008 01/14/2008
01/16/2008 01/16/2008 01/17/2008 01/22/2008 01/22/2008 01/22/2008 01/23/2008 03/06/2008 03/06/2008 03/06/2008 03/13/2008

168 MOTION by Defendant Barry S Maram to strike response in opposition to motion, 166 Amended Exhibit C (Huston, John) (Entered: 01/09/2008)
169 Certificate of Service and NOTICE of Motion by John E. Huston for presentment of motion to strike, motion for relief 168 before Honorable Rebecca R. Pallmeyer on 1/14/2008 at 08:45 AM. (Huston, John) (Entered: 01/09/2008)
170 RESPONSE by David Groomsin Opposition to MOTION by Defendant Barry S Maram to strike response in opposition to motion, 166 Amended Exhibit C 168 Plaintiff's Response to Defendant's Motions to Strike Amended Exhibit C and to Strike Plaintiff's Statements of Additional Material Facts 3−8 (Mason, Byron) (Entered: 01/11/2008)
171 NOTICE by David Grooms Notice of Filing re: Plaintiff's Response to Defendant's Motions to Strike Amended Exhibit C and to Strike Plainitff's Statements of Additional Material Facts 3−8 (Mason, Byron) (Entered: 01/11/2008)
172 REPLY by Barry S Maram to response in opposition to motion, 170 , MOTION by Defendant Barry S Maram to strike response in opposition to motion, 166 Amended Exhibit C 168 and Certificate of Service (Huston, John) (Entered: 01/11/2008)
173 MINUTE entry before Judge Rebecca R. Pallmeyer : Motion hearing held. Defendant's motion to strike Plaintiff's amended Exhibit C 168 is denied, but datefor Defendant's reply memorandum is extended to 1/21/2008. (ar, ) (Entered: 01/15/2008)
174 MOTION by Defendant Barry S Maram to clarify Order (Huston, John) (Entered: 01/16/2008)
175 Certificate of Service and NOTICE of Motion by John E. Huston for presentment of motion to clarify 174 before Honorable Rebecca R. Pallmeyer on 1/22/2008 at 08:45 AM. (Huston, John) (Entered: 01/16/2008)
176 MINUTE entry before Judge Rebecca R. Pallmeyer : Defendant's motion to clarify order (174) granted. Defendant has leave to file Amended Response andAmended Reply Memorandum on or before 1/22/08. (ar, ) (Entered: 01/18/2008)
177 REPLY by Barry S Maram to response in opposition to motion 159 Defendant's Amended Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment (Gange, Christopher) (Entered: 01/22/2008)
178 RESPONSE by Defendant Barry S Maram to Rule 56 statement 161 Defendant's Amended Response to Plaintiff's Rule 56.1 (a)(3) Statement of Additional Fact (Attachments: # 1 Exhibit H)(Huston, John) (Entered: 01/22/2008)
179 NOTICE by Barry S Maram re reply to response to motion 177 , Response 178 including Defendant's Summary Judgment Exhibit H, and Certificate of Service (Gange, Christopher) (Entered: 01/22/2008)
180 MINUTE entry before Judge Rebecca R. Pallmeyer : The Clerk's Office is directed to correct the docket to reflect that Karen I. Ward of Equip For Equality is the lead attorney for Plaintiff. Mailed notices (gcy, ) (Entered: 01/24/2008)
181 MOTION by Plaintiff David Grooms for preliminary injunction (Ward, Karen) (Entered: 03/06/2008)
182 MEMORANDUM by David Grooms in support of motion for preliminary injunction 181 (Attachments: # 1 Exhibit Exhibits A−C, and Pl. Trial Exhibits 36, 37, and 43)(Ward, Karen) (Entered: 03/06/2008)
183 NOTICE of Motion by Karen I. Ward for presentment of motion for preliminary injunction 181 before Honorable Rebecca R. Pallmeyer on 3/13/2008 at 08:45 AM. (Ward, Karen) (Entered: 03/06/2008)
184 MINUTE entry before Judge Rebecca R. Pallmeyer :Plaintiff's motion for preliminary injunction 181 entered for briefing as follows: Response 3/27/2008; reply 4/1/2008; ruling set for 4/4/2008 at 9:00. Mailed notice (etv, ) (Entered: 03/13/2008)

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03/27/2008 03/27/2008 04/01/2008 04/01/2008 04/03/2008 05/30/2008
05/30/2008 06/09/2008 06/09/2008 06/10/2008 06/12/2008 06/13/2008
06/13/2008 06/13/2008

185 RESPONSE by Barry S Maramin Opposition to MOTION by Plaintiff David Grooms for preliminary injunction 181 (Attachments: # 1 Exhibit A &B)(Konieczny, Karen) (Entered: 03/27/2008)
186 CERTIFICATE of Service and Notice of Filing by Karen Elaine Konieczny on behalf of Barry S Maram regarding response in opposition to motion 185 (Konieczny, Karen) (Entered: 03/27/2008)
187 REPLY by David Grooms to response in opposition to motion 185 (Attachments: # 1 Exhibit Exhibit A−−pp. 1−13, # 2 Exhibit ExhibitA pp. 14−27)(Ward, Karen) (Entered: 04/01/2008)
188 NOTICE by David Grooms re reply to response to motion 187 Notice of Filing Reply to Def's Response to Pl's Motion for Preliminary Injunction (Ward, Karen) (Entered: 04/01/2008)
189 MINUTE entry before Judge Honorable Rebecca R. Pallmeyer:Ruling on Plaintiff's motion for preliminary injunction 181 set for 4/4/2008 is stricken. Ruling to be made by mail within ten (10) days. Mailed notice (etv, ) (Entered: 04/03/2008)
190 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Enter Memorandum Opinion And Order. Defendant Barry S. Maram's Motion for Summary Judgment (149) is denied. Plaintiff David Grooms has not sought summary judgment in his favor, but has sought preliminary injunctive relief. Because the court concludes that the necessary showing for such relief has been made, the court expects to grant Plaintiff David Grooms's motion for preliminary injunction. Accordingly a status hearing is set for Monday, June 9, 2008, at 9:00 a.m. Absent agreement between the parties, the court will at that time determine the preliminary and/or permanent relief to which Grooms is entitled. Mailed notice (etv, ) (Entered: 05/30/2008)
191 MEMORANDUM Opinion and Order Signed by the Honorable Rebecca R. Pallmeyer on 5/30/2008: Mailed notice(etv, ) (Entered: 05/30/2008)
192 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Status hearing held on 6/9/2008. Agreed order to be submitted. Mailed notice (etv, ) (Entered: 06/09/2008)
201 E−MAIL Message to Judge Pallmeyer from Karen I. Ward dated 06/09/08. (ar, ) (Entered: 07/28/2008)
193 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Status hearing set for 6/12/2008 at 09:00 AM. Mailed notice (etv, ) (Entered: 06/10/2008)
194 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Status hearing held. As Defendant has waived the right to offer additional evidence to address the questions identified in the court's memorandum opinion, Plaintiff to submit Permanent Injunction order. Mailed notice (etv, ) (Entered: 06/12/2008)
195 MINUTE entry before the Honorable Rebecca R. Pallmeyer: A permanent injunction is issued. Defendant shall, effective immediately, restore the level of approved skilled nursing services to be provided to Plaintiff David Grooms under the Persons with Disabilities (PWD) Waiver in the amount approved by HFS prior to his 21st birthday, i.e., not less than 112 hours per week, plus 336 hours of respite care per year, at rates sufficient to assure consistent competent skilled nursing services for the approved hours. Plaintiff is awarded his reasonable attorneys' fees, costs and litigation expenses, to be determined at a later date pursuant to Local Rules 54.1 and 54.3. The court shall retain jurisdiction of this matter for purposes of enforcement of this Order. Enter Permanent Injunction Order. Motion for preliminary injunction 181 is stricken as moot. Mailed notice (etv, ) (Entered: 06/16/2008)
196 ORDER Signed by the Honorable Rebecca R. Pallmeyer on 6/13/2008: Mailed notice(etv, ) (Entered: 06/16/2008)
197 ENTERED JUDGMENT on 6/13/2008: Mailed notice(etv, ) (Entered: 06/16/2008)

Case: 1:06-cv-02211 As of: 02/02/2011 09:11 AM CST 15 of 16

07/10/2008

198 TRANSCRIPT OF PROCEEDINGS held on 6/12/08 before the Honorable Rebecca R. Pallmeyer. Court Reporter Contact Information: FRANCES WARD (312)435−5561 OR frances_ward@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber FRANCES WARD (312)435−5561 before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber FRANCES WARD (312)435−5561 or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov. Under Quick Links select Electronic Transcript Procedures.

07/11/2008 07/14/2008 08/04/2008 08/04/2008 08/11/2008
08/26/2008 08/26/2008 08/27/2008
10/27/2008 10/27/2008 10/28/2008

Redaction Request due 7/31/2008. Redacted Transcript Deadline set for 8/11/2008. Release of Transcript Restriction set for 10/8/2008. (Ward, Frances) (Entered: 07/10/2008)
199 BILL of Costs by Plaintiff: (Attachments: #(1) Exhibit Exhibit A−Itemization, #(2) Exhibit Exhibit B−Proof of costs). (Ward, Karen). (Text edited by Clerk's Office.) Modified on 7/15/2008 (ar, ). (Entered: 07/11/2008)
200 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Defendant's objections, if any, to Plaintiff's Bill of Costs to be filed on or before August 4, 2008; reply on or before August 18, 2008. Mailed notice (etv, ) (Entered: 07/14/2008)
202 MOTION by Defendant Barry S Maram to stay response to Plaintiff's bill of costs to consolidate with a response to Plaintiff's petition for attorney fees. (Huston, John). (Text edited by Clerk's Office.) Modified on 8/5/2008 (ar, ). (Entered: 08/04/2008)
203 certificate of Service and NOTICE of Motion by John E. Huston for presentment of motion to stay, motion for relief, 202 before Honorable Rebecca R. Pallmeyer on 8/12/2008 at 08:45 AM. (Huston, John) (Entered: 08/04/2008)
204 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Defendant's motion to stay response to Plaintiff's Bill of Costs to consolidate with a response to Plaintiff's petition for attorneys' fees 202 granted. Defendant's response to Plaintiff's Bill of Costs stayed to such time as Plaintiff files his Petition for Attorneys' Fees; Defendant granted 28 days to respond simultaneously to the Bill of Costs and Petition for Attorneys' Fees. Plaintiff's reply to be filed 14 days thereafter. Mailed notice (etv, ) (Entered: 08/11/2008)
205 MOTION by Plaintiff David Grooms, Defendant Barry S Maram for extension of time to File Plaintiff's Motion for Attorneys Fees and Related Documents (Ward, Karen) (Entered: 08/26/2008)
206 Agreed Motion to Extend Time for Filing Plaintff's Motion for Attorneys' Fees and Related Documents NOTICE of Motion by Karen I. Ward for presentment of before Honorable Rebecca R. Pallmeyer on 8/28/2008 at 08:45 AM. (Ward, Karen) (Entered: 08/26/2008)
207 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Agreed motion to extend time for filing motion for attorneys' fees and related documents 205 granted. Plaintiff's motion for attorneys fees to be filed on or before 11/6/2008; Defendant's response 30 days thereafter; Plaintiff's reply 14 days thereafter. Mailed notice (etv, ) (Entered: 08/27/2008)
208 MOTION by Defendant Barry S Maram for extension of time (Agreed) for Filing Motion for Attorneys' Fees and Related Documents (Huston, John) (Entered: 10/27/2008)
209 Certificate of Service and NOTICE of Motion by John E. Huston for presentment of extension of time 208 before Honorable Rebecca R. Pallmeyer on 10/30/2008 at 08:45 AM. (Huston, John) (Entered: 10/27/2008)
210 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Agreed motion to extend time for filing motion for attorneys' fees and related documents 208 granted as follows: Defendant shall provide his Local Rule 54.3(d) materials to Plaintiff by

Case: 1:06-cv-02211 As of: 02/02/2011 09:11 AM CST 16 of 16

11/21/2008 11/21/2008 12/01/2008 12/01/2008 12/05/2008
12/05/2008 12/08/2008

11/7/2008. The Joint Statement to be filed on or before 11/21/2008. Plaintiff's motion for attorneys' fees to be filed on or before 12/12/2008. Defendant permitted 30 days to respond thereto, and Plaintiff has 14 days thereafter to file a reply. Mailed notice (etv, ) (Entered: 10/28/2008)
211 Plaintiff's Statement in Lieu of Joint Statement Regarding Attorneys' Fees Costs and Litigation Expenses by David Grooms (Ward, Karen) (Entered: 11/21/2008)
212 NOTICE by David Grooms re other 211 Notice of Filing Plaintiff's Statement in Lieu of Joint Statement Regarding Attorneys' Fees, Costs and Litigation Expenses (Ward, Karen) (Entered: 11/21/2008)
213 MOTION by Defendant Barry S Maram to enforce Settlement Agreement as to Attorneys' Fees, Costs and Expenses (Attachments: # 1 Exhibit A)(Huston, John) (Entered: 12/01/2008)
214 Certificate of Service and NOTICE of Motion by John E. Huston for presentment of motion to enforce 213 before Honorable Rebecca R. Pallmeyer on 12/8/2008 at 09:00 AM. (Huston, John) (Entered: 12/01/2008)
215 RESPONSE by David Grooms to MOTION by Defendant Barry S Maram to enforce Settlement Agreement as to Attorneys' Fees, Costs and Expenses 213 (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Ward, Karen) (Entered: 12/05/2008)
216 NOTICE by David Grooms re response to motion, 215 Notice of Filing Plaintiff's Response to Def's Motion to Enforce Settlement Agreement (Ward, Karen) (Entered: 12/05/2008)
217 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Motion hearing held. Defendant's motion to enforce settlement agreement as to attorneys' fees, costs and expenses 213 granted; the parties' agreement is reflected in the exchange of e−mails. The court directs that Defendant pay the agreed amount of fees within sixty (60) days. No further conditions are imposed on either party. Mailed notice (etv, ) (Entered: 12/08/2008)