II. The Division and the Rebalancing Initiative

  • A. Services Offered by the Division

  • The seven Illinois SODCs currently serve approximately 1,800 residents. (9/23/13 Decl. of Kevin Casey ¶ 7 (Dkt. No. 245-1).) The SODCs constitute Intermediate Care Facilities for the Developmentally Disabled ("ICF/DDs"). (Id. ¶¶ 5, 7-8.) The Division also administratively  oversees about 300 private ICF/DDs, which also provide ICF-MR services. (Id. ¶ 8.) The Division additionally serves approximately 22,000 individuals in community-based settings, through the Medicaid Home and Community Based Waiver Program ("HCBS Waiver Program"). (Id.) Under the HCBS Waiver Program, Congress authorizes funding for states to serve Medicaid eligible recipients in the community-recipients who would otherwise qualify for institutional placement-so long as the average cost for community services does not exceed the average cost of institutional services. (Id. ¶¶ 8, 15.)
  • Pursuant to the HCBS Waiver Program, about 9,900 Illinois citizens live in CILAs, typically houses or apartments suitable for one to eight residents. (Id.) The majority of CILAs in Illinois are operated by community providers, who are licensed through the DHS Bureau of Accreditation, Licensing, and Certification ("Bureau"). (Id. ¶ 29.) The Bureau inspects CILA providers every three years, and the DHS Bureau of Quality Management also performs random visits and evaluations. (Id.) CILA residents are assigned a case manager from an independent case management agency ("PAS"), and the PAS agent must visit the resident at least four times a year. (Id.; see also 1/7/14 Hr'g Tr. (Freeman) at 143.) When an individual transfers from an SODC to a CILA, they are also monitored by the DHS Bureau of Transition Services ("BTS"). (Casey Decl. ¶ 31.) BTS conducts periodic visits to the service providers throughout an individual's community placement. (Id.)
  • As for CILA caregivers, DHS requires providers to conduct background checks on potential employees. (Id. ¶ 29.) All CILA employees are required to complete 40 hours of classroom instruction, as well as 80 hours of on-the-job training. (Id.) In addition to the roughly 25,000 citizens served by the Division, an estimated 23,000 people with developmental disabilities in Illinois are on a waiting list to receive services, of whom 6,000 are considered to be in emergency situations. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 29.) The Division lacks funding to offer services to these individuals. (Id.)
  • B. The Rebalancing Initiative

  • In February 2012, Illinois Governor Quinn introduced his Rebalancing Initiative ("the Initiative"), which aims to restructure the system so that it is less reliant on ICF/DDs and more reliant on integrated, community settings. (Stip. ¶ 14; Casey Decl. ¶ 9.) The initial goal of the Initiative was to reduce the State's SODC population by 600 residents by the end of the 2014 fiscal year. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 58-59.) Both Jacksonville and Murray were slated to close pursuant to the Initiative. (Stip. ¶ 14.)
  • According to Casey's undisputed testimony, the closing of such congregate facilities reflects the national trend. (Casey Decl. ¶ 7.) Eleven states have eliminated SODCs entirely. (Id.) Illinois serves more developmentally disabled individuals in institutions than any other state, except for Texas and California. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 9-10.) The Initiative seeks to redirect the system towards community-based services for the developmentally disabled, the mentally ill, and individuals receiving services in nursing homes. (Id.)
  • This move away from institutionalization has several underlying bases. First, community programs are considered the best practice standard by the majority of professionals in the field. (Id. at 11-19; Casey Decl. ¶ 11.) Community programs have been developing for at least 50 years and are not a fad. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 19; see also 1/8/14 10:30 a.m. Hr'g Tr. (Shaver) at 51, 58-59, 62.) Casey testified, based on both his experience and the professional research, that overall "people with intellectual disabilities do better in community programs." (1/8/14 2 p.m. Hr'g Tr. (Casey) at 12; id. at 84-85; Casey Decl. ¶¶ 11-13.)
  • Second, community programs, on the whole, are less expensive than institutional placements. (Casey Decl. ¶¶ 14-17; 1/8/14 2 p.m. Hr'g Tr. (Casey) at 26-29 ("Most of the research and my personal experience indicates that community programs are less expensive, frankly, than institutional programs.").) Even if certain community placements exceed the average cost of institutional care-for example, where a more complicated plan is required to support an individual's needs-funding should be available in excess of the institutional rate because "the vast majority of community placements fall well under this average." (Casey Decl. ¶ 15; see also 1/8/14 2 p.m. Hr'g Tr. (Casey) at 27-29.) On the other hand, Plaintiff's expert, Greg Shaver, testified that it would not be cost-effective to develop community placements for some disabled individuals who are medically frail or pose particular behavioral challenges, including some Murray residents. (1/8/14 10:30 a.m. Hr'g Tr. (Shaver) at 37-41.) Although Casey could not guarantee that the State of Illinois would save money under the Initiative, he testified that he expects savings and that they "will use that money to serve people off of the community waiting list." (1/8/14 2 p.m. Hr'g Tr. (Casey) at 27 (further stating that "[i[f we don't save a dime, we won't save a dime"); id. at 84.)
  • Third, the trend away from institutional treatment of the developmentally disabled stems in part from the United States Supreme Court's decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 587, 597, 601-07, 119 S. Ct. 2276, 2181, 2185, 2187-90 (1999). In Olmstead, the Supreme Court held that Title II of the Americans with Disabilities Act ("ADA") requires states to provide community-based treatment for disabled persons, as opposed to institutionalization, under specified circumstances. In so holding, the Supreme Court explained that "[u]njustified isolation . . . is properly regarded as discrimination based on disability." Id. at 597, 119 S. Ct. at 2187. Consistent with these principles, states including Illinois have taken steps to reduce the number of institutionalized disabled individuals by allowing them to live in a less restrictive community setting. (Casey Decl. ¶¶ 7, 13; 1/8/14 2 p.m. Hr'g Tr. (Casey) at 11-12 (noting a study that indicated a 90% reduction since the 1960s in the number of people served in institutional programs nationwide); see also 1/8/14 10:30 a.m. Hr'g Tr. (Shaver) at 58-59 (discussing the decreased census at Murray over the last three decades, as well as his overall support for the closure of SODCs other than Murray).) For the above reasons, the State seeks to implement a more progressive approach to the treatment of the developmentally disabled and serve more people with such disabilities in integrated, community settings. (Casey Decl. ¶¶ 9-10.)
  • While Governor Quinn and DHS seek to reduce the State's reliance on institutionalsettings-and thus outspokenly prefer to place individuals in small community homes-Casey and others concede that "there may be some persons who are difficult to place in the community and can be more efficiently served by an ICF/DD level of care rather than a CILA, or for whom a guardian may prefer an ICF/DD level of care." (Casey Decl. ¶ 13; see id. ¶ 12; see also 1/8/14 2 p.m. Hr'g Tr. (Casey) at 43 (admitting that not all people do better in the community); 1/9/14 9:30 a.m. Hr'g Tr. (Mayer) at 53 ("I believe that there will be people who will not be successful in the community."); 1/9/14 2:05 p.m. Hr'g Tr. (Dufresne) at 4-5 (testifying that he has concluded that at least one SODC resident he evaluated should not be placed in the community).)
  • C. The Closures of Jacksonville and Murray

  • The first SODC slated to close pursuant to the Initiative was Jacksonville, which closed on December 3, 2012. (Stip. ¶ 16.) Of the roughly 180 residents, 108 moved to community placements, almost all CILAs. (Casey Decl. ¶ 32.) Eighteen residents moved to private ICF/DDs, 53 transferred to other SODCs, and one was placed in a mental health center. (Id.)  There is no evidence that Defendants transferred any Jacksonville residents to a community placement without guardian consent.3 (See, e.g., id.; 1/9/14 2:05 p.m. Hr'g Tr. (Dufresne) at 29; 1/9/14 9:30 a.m. Hr'g Tr. (Doyle) at 27-28, 34.)
  • Murray was scheduled to close on October 31, 2013, though this litigation has delayed that process. (Compl. ¶ 52; see also 1/9/14 9:30 a.m. Hr'g Tr. (Doyle) at 13.) As both parties have acknowledged, Plaintiffs are not entitled to care in, and cannot force the State to permanently maintain, any particular facility. Accordingly, so long as the State decisionmakers intend to close Murray, it will close.
  • Some residents have already transitioned out of Murray in preparation for its planned closing. For example, approximately four individuals have moved into a private ICF/DD from Murray. (1/8/14 10:30 a.m. Hr'g Tr. (Shaver) at 36.) Some other residents who have left Murray are wards of the Office of the Special Guardian ("OSG"). Two of these individuals will be moving to other SODCs. (1/8/14 2 p.m. Hr'g Tr. (Starr) at 118-19.) The OSG initially approved another twenty-four Murray residents to move to CILAs, but that decision has been challenged in state court, which has appointed a temporary guardian ad litem ("GAL"), Stewart Freeman, for these individuals.4 (Decl. of Stewart Freeman ¶¶ 5-9 (Dkt. No. 241-4); 1/7/14 Hr'g Tr.
  • (Freeman) at 112-15.) Although that dispute remains pending, there is no evidence to suggest that Defendants removed the thirteen OSG wards currently living in CILAs from Murray without the OSG's initial consent. (1/7/14 Hr'g Tr. (Henson) at 48-49 (acknowledging that the OSG signed documentation to allow the transfers); see also 1/7/14 Hr'g Tr. (Freeman) at 135-38.)
  • Casey testified that he is not aware of any plans for DHS to close all of the State's SODCs. Governor Quinn announced an intention to close up to four SODCs, to reduce the census by 600 residents, but Casey has no knowledge of intended closures beyond Murray and Jacksonville. (Casey Decl. ¶ 27.)
  • 3 When Jacksonville closed, approximately thirteen people were moved to other SODCs without guardian input. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 65-66.) In those instances, the families and guardians failed to respond to DHS's requests for direction. (Id.)
  • 4 In light of questions raised about the OSG's conduct, the state court authorized Freeman to decide whether his clients should be transferred permanently to homes and/or institutions other than Murray. (Freeman Decl. ¶ 5; see also 12/19/13 Op. (Dkt. No. 346) (providing more background on Freeman's role and resolving judicial notice motion).)