A. Overview of the Process
DHS has begun planning for resident transfers given Murray's slated closure. In light of the goals of the Initiative, DHS advises and prefers that all guardians consider a CILA for their wards' next placement. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 23-25; Casey Decl. ¶¶ 23-25.) To that end, DHS contracted with CR Associates, who works with CR Alliance, to assess individuals for placement in the community.5 (10/2/13 Am. Decl. of Derrick Dufresne ¶¶ 1, 7 (Dkt. No. 275-1); 9/23/13 Decl. of Dr. Michael Mayer ¶¶ 1 (Dkt. No. 245-2).) According to Casey, DHS retained CRA because Murray staff members would not have enough time to perform their regular duties as well as prepare transition plans for all of Murray's residents. (Casey Decl. ¶ 18; see, e.g., 1/7/14 Hr'g Tr. (Henson) at 52-53 (agreeing that the Murray interdisciplinary ("ID") team, including two social workers, would otherwise be called on to assist with transition decisions for each resident); Henson Decl. ¶ 2.) The State pays CRA approximately $180,000 per month under the contract, which began in 2012. (1/9/14 9:30 a.m. Hr'g Tr. (Doyle) at 18; see Casey Decl. ¶ 18 (stating the DHS has a $2 million contract with CR Associates).)
DHS engages in a type of "person-centered planning," which they call the "ACCT process," to evaluate each resident for future placements. (Casey Decl. ¶¶ 18-19; Dufresne Decl. ¶ 7; Mayer Decl. ¶ 9.) DHS retained CRA, and employed the ACCT process, to implement the closure of Jacksonville. (Dufresne Decl. ¶ 9; Mayer Decl. ¶ 8.) DHS is again utilizing the ACCT process, with CRA's assistance, for the Murray closure. (Casey Decl. ¶ 19.) Personcentered planning generally involves a highly individualized assessment of each resident. (1/7/14 Hr'g Tr. (Henson) at 51, 58; 1/8/14 10:30 a.m. Hr'g Tr. (Shaver) at 52, 58, 74-75; see Casey Decl. ¶ 19.) Under the person-centered approach, the methodology is to develop a community program around the disabled individual, such that the overall program, including housing and services, is tailored to his or her particular needs. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 15, 19-20; 1/9/14 9:30 a.m. Hr'g Tr. (Mayer) at 51, 53.)
Dr. Mayer provided detailed testimony in his declaration about the purpose and mechanics of the ACCT process. (Mayer Decl. ¶¶ 9-19.) Plaintiffs do not challenge Dr. Mayer's description of the ACCT process itself, and we thus adopt his testimony about the steps involved in the ACCT process. (Id. ¶¶ 11-19.) By way of brief overview, the assessment portion of the ACCT process typically includes a records review, a meeting with the resident and guardians to generate a Person-Centered Plan ("PCP"), any potential further clinical screening, and the creation of a planning and support budget report, which covers fifteen domains (such as medical, dental, nursing, mobility, and behavioral support) and recommends specific services and supports. (Id. ¶¶ 15-18; see also Casey Decl. ¶ 19; see, e.g., Dufresne Decl. ¶¶ 14-17 (describing the placement portion of the ACCT process) & Ex. 4 (flow chart of ACCT process).) Seven or eight credentialed professionals participate at various stages of each individual's assessment in the ACCT process. (Mayer Decl. ¶ 14; see id. ¶ 13 (identifying the assessment professionals and their qualifications); see also Casey Decl. ¶ 19; 1/7/14 Hr'g Tr. (Freeman) at 140-41 (acknowledging that the ACCT evaluations are completed by credentialed professionals); 1/9/14 9:30 a.m. Hr'g Tr. (Mayer) at 72-73.) Where a community provider is selected, the ACCT professionals attend the pre-transition meeting to ensure that the provider and PAS agent understand the individual's needs. (Mayer Decl. ¶ 19.)
B. Plaintiffs' Substantive Concerns about the ACCT Process
- Although Plaintiffs do not specifically argue that the steps of the ACCT process are inherently inadequate,6 or that the CRA professionals are not adequately credentialed, they contend that the underlying premise of the process is flawed, infecting the entire approach. (See Post-Hr'g Mem. at 9-10; Post-Hr'g Reply at 4, 6-7.) As Defendants have repeatedly acknowledged, the ACCT process "is based on the belief that all persons with developmental disabilities can be served in a community setting with the appropriate supports and services." (Mayer Decl. ¶ 10; Casey Decl. ¶¶ 13, 20; Dufresne Decl. ¶ 8; see 1/8/14 2 p.m. Hr'g Tr. (Casey) at 16-20; 1/9/14 9:30 a.m. Hr'g Tr. (Mayer) at 49-53; 1/9/14 2:05 p.m. Hr'g Tr. (Dufresne) at 4.) Defendants relatedly assert that "[t]here are virtually no services available in an SODC that are not available in a community setting," such that the setting can be designed to suit the resident in accordance with his or her individual plan. (Casey Decl. ¶ 20.) Plaintiffs decry this "reverseengineering" mentality, insisting that the ACCT process thus predetermines every resident's assignment to a CILA upon Murray's closure, regardless of their needs. (1/7/14 Hr'g Tr. (Kelly) at 222, 224-25, 241-42, 246; see also 1/7/14 Hr'g Tr. (Freeman) at 148, 151, 170-71; Burke 30(b)(6) Decl. ¶¶ 7-8.)
- In support of their position, Plaintiffs rely on the testimony of Dr. Karen Kelly, who is a registered nurse, a faculty member at the School of Nursing at Southern Illinois University at Roosevelt, and a Murray guardian for her son, Eric. (1/7/14 Hr'g Tr. (Kelly) at 202-14 (describing her professional experiences as well as her son's needs).) Dr. Kelly testified, based on her decades of nursing experience, that "the big flaw in [the ACCT process] is that it has a predetermined outcome." (Id. at 224; see also id. at 225.) And based on her personal experiences caring for Eric, Dr. Kelly testified that he requires a higher level of supervision than could be provided in a CILA. (Id. at 226-29.) Dr. Kelly explained that she does not have faith in the ACCT process and will not allow her son to go through it. (Id. at 221-22, 241-42, 246, 250.) She emphasized that while community arrangements may suit some disabled or mentally ill individuals, "some people are never going to fit in the community." (Id. at 249 (stressing that "one size does not fit all").)
- Plaintiffs further point out that the PAS agent for Murray residents, Ann Yaunches, has authorized CILA placement for every Murray resident who has completed the ACCT process, including more than twenty OSG wards. (Yaunches Dep. at 18-19, 28-29, 34, 37 (Dkt. No. 373-1); see also 1/7/14 Hr'g Tr. (Freeman) at 171.) Moreover, she has concluded that none of those Murray residents are eligible for services in an SODC placement because they are not considered a danger to themselves or others.7 (1/16/14 Decl. of Ann Yaunches ¶ 5 (Dkt. No. 661-1); Yaunches Dep. at 25, 28-29, 46.) If the PAS agent completes the necessary form indicating that an individual is not eligible for an SODC, the guardian cannot choose that option. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 50-56.)
- Nonetheless, according to Defendants, the PAS agent would not typically participate in a resident's transfer from one SODC to another SODC. (Yaunches Decl. ¶ 5 ("An SODC transfer occurs outside the PAS process."); see also id. ¶ 9; 1/7/14 Hr'g Tr. (Henson) at 50.) Both Casey and Yaunches stated that families do not need to go through the PAS agent for an inter-SODC transfer. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 87-88; Yaunches Decl. ¶ 9 (explaining that the PAS agent is not required to be part of the process if a resident goes through the ACCT process and wants an ICF/DD placement, although the agent remains available to help locate ICF/DD options).) Additionally, although all SODC placements are intended to be temporary, the Division has relaxed its position for Murray residents and will allow residents to transfer to other SODCs if requested by guardians. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 88-89; Yaunches Decl. ¶ 5; see, e.g., 1/7/14 Hr'g Tr. (Kelly) at 250 (testifying that she could work with Murray staff now, or wait, to make decisions about Eric's next placement, and that she has chosen to wait to see what happens with the lawsuit).) As a result, although Yaunches has not approved further SODC placement for Murray residents who have completed the ACCT process, this outcome is neither surprising in light of the process' goals, nor reflective of a lack of choice for guardians, who remain free to seek separate assistance to pursue an SODC transfer, as discussed in more detail below.
Quality of the Process
- Beyond their challenges to the philosophy underlying the ACCT process, Plaintiffs also raise two particular concerns about its value. First, Plaintiffs contend that the ACCT process excludes Murray staff-specifically, a resident's ID team-from actively participating in assessments and transition planning as they normally would in a discharge situation.8 Instead, CRA handles all of the planning and coordinating functions, sometimes without informing ID team members of pre-transition meetings or allowing their meaningful input. (Henson Dec. ¶¶ 6-10, 22, 26; 1/7/14 Hr'g Tr. (Henson) at 50-51; 9/22/13 Declaration of Alicia Creed ¶¶ 3-4 (Dkt. No. 241-11); 1/7/14 Hr'g Tr. (Creed) at 173-75, 176, 184-85; 1/7/14 Hr'g Tr. (Howell) at 194-95; 9/21/13 Decl. of Tracy Kiselweksi ¶¶ 2-7 (Dkt. No. 241-12); 9/23/13 Decl. of Julie Hester ¶¶ 2-11 (Dkt. No. 241-13); 9/23/13 Decl. of Adam Gibson ¶¶ 2-6, 9, 12 (Dkt. No. 262-1).) Plaintiffs feel that the ACCT process is thus deficient because Murray staff, and not CRA, has the best, most thorough, most accurate knowledge of residents based on their daily interactions. (1/7/14 Hr'g Tr. (Henson) at 59; see 1/7/14 Hr'g Tr. (Winkeler) at 28; 1/7/14 Hr'g Tr. (Kelly) at 245-46.)
- As previously mentioned, Defendants state that DHS hired CRA because Murray staff members would not have enough time to perform their regular duties as well as prepare transition plans for each resident. (Casey Decl. ¶ 18.) In addition, Defendants assert that, at times, Murray staff have refused to participate in the ACCT process, even when invited. (1/9/14 9:30 a.m. Hr'g Tr. (Mayer) at 76-77 (describing how Murray staff have posed obstacles to the ACCT process, such as by turning their backs on CRA during meetings).) We need not delve into the details, but, for present purposes, we note that the record reveals several instances of disagreement and non-cooperation between Murray staff and CRA, often concerning notice about pre-transition meetings or access to patient records. (Id.; see, e.g., Creed Decl. ¶¶ 4-7; 1/8/14 2 p.m. Hr'g Tr. (Starr) at 119.)
- Second, Plaintiffs claim that the PCP developed in the ACCT process is pointless and ineffective because it relies almost exclusively on the ISP materials already prepared on each resident by Murray staff. (1/7/14 Hr'g Tr. (Kelly) at 224 ("[T]he narrative potion that's kind of an addendum to the [PCP] is just a cut and paste of the individual's ISP.") Freeman testified, for example, that he has read both documents for his clients but that he "didn't learn one thing hardly from the [PCP prepared by CRA] that [he] couldn't have gleaned from the ISP." (1/7/14 Hr'g Tr. (Freeman) at 150 (further stating that he could write a PCP himself because the information in the PCP is nothing other than what the ISP contains).) Casey confirmed that the Division uses the ISPs, adding that "it would be foolish not do so." (1/8/14 2 p.m. Hr'g Tr. (Casey) at 21 (stating that the ISP represents "good, valid information placed in the file by people who know the individual reasonably well").) Casey and others also testified about the other steps in the ACCT process, including the PCP meeting with residents9 and guardians and CRA's consideration of whether additional evaluations are necessary to get a more thorough picture of a resident's needs. (Id. at 21-22; 1/9/14 9:30 a.m. Hr'g Tr. (Mayer) at 57, 77; Mayer Decl. ¶¶ 11-19; see also 1/9/14 2:05 p.m. Hr'g Tr. (Dufresne) at 25-26 (discussing benefits of the ACCT process, even for residents and guardians who elect not to pursue community living).)
C. Plaintiffs' Opportunity to Opt Out of the ACCT Process
In addition to their claims about the value of the process, Plaintiffs are also concerned that they are being forced to participate in the ACCT process, with its predetermined CILA outcome. It is undisputed that the Division wants each family to consider community placement. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 23-25; Casey Decl. ¶¶ 23-25.) Casey stated, for example, that "[i]t is DHS's plan that every resident at Murray should be assessed for a community placement," (Casey Decl. ¶ 23), and that he advises "any family . . . to look very carefully at that kind of home, to participate in the process," (1/8/14 2 p.m. Hr'g Tr. (Casey) at 23). (See also Defs.' Ex. 207 (email thread between Doyle and Holzhauer, in which Doyle states that the "emphasis in this ACCT process is on homes of 4 persons or fewer").)
Plaintiffs presented circumstantial evidence at the hearing to support their claim that they are being forced into the ACCT process.10 Plaintiffs point out that DHS has not been open with them about the process or CRA's involvement. Mark Doyle, the Transition of Care, Projects Manager for the State of Illinois, instructed Rick Starr, the acting director of Murray, "to keep CRA underneath the radar." (1/8/14 2 p.m. Hr'g Tr. (Starr) at 96-97 (testifying further that it would have been "fair" to let the guardians know about CRA from the beginning).) Starr also admitted that, despite his role at Murray as the liaison with guardians for the ACCT process, he has never told any guardians that residents could be assessed for transition by Murray staff, rather than by CRA through the ACCT process. (Id. at 125-26.)
Although Starr has not notified guardians about the option to opt out of the ACCT process, Casey did so at an informational session with Murray guardians prior to the filing of the lawsuit. On September 9, 2012, at a meeting with the MPA, Casey stated:
There's no, there's no legal requirement, none, to involve yourself in the CRA process, and if you want to opt out of it, we will still help you through the [PAS] agency, through my staff, and through other staff we have, to, to get your, help you
select an alternate place for someone to live. You do not have to go through the CRA process. There's a direct answer to your question.
(Defs.' Ex. 102 (9/9/12 MPA Mtg. Tr.) at 64; see id. at 65 (reiterating, in response to a question from Winkeler, that "[y]ou do not have to go through the CRA process, that's correct."); see also Defs.' Ex. 207 (email thread between Doyle and Holzhauer, in which Doyle expresses his belief that the ACCT process has value for those who will reject a CILA option but does not suggest that the process is required of those families).) In a written exchange with a reporter in the Centralia area, the Communication Manager for DHS, Januari Smith, also stressed that DHS "will work with individuals/families that prefer to transition to other SODCs or private . . . [ICF/DDs]" on a case-by-case basis. (Defs.' Ex. 109 (April 2013 email thread between Smith and Monica Seals, as forwarded by Seals11 to Winkeler).)
Despite Casey's unequivocal 2012 statements to the MPA, it is undisputed that CRA-at DHS's instruction-began reviewing Murray resident files over guardian objections in the summer of 2013. (Casey Decl. ¶ 25; 1/8/14 2 p.m. Hr'g Tr. (Casey) at 61-64; see also 1/7/14 Hr'g Tr. (Winkeler) at 42-44; 1/8/14 2 p.m. Hr'g Tr. (Starr) at 94-95; 1/9/14 9:30 a.m. Hr'g Tr. (Doyle) at 13-17.) The vast majority of Murray guardians inserted notes in their wards' files refusing to allow CRA to assess their wards. (1/7/14 Hr'g Tr. (Winkeler) at 42-44 (testifying that roughly 195 guardians had notices added to resident files stating that they could not be reassessed under the ACCT process); see 1/7/14 Hr'g Tr. (Kelly) at 241); Defs.' Ex. 114 (Winkeler forms, which seek to (1) prohibit CRA from approaching or interviewing her son, or reviewing his records; and (2) direct DHS that any assessments for transfer should be completed by SODC staff only).) Despite the guardians' position, DHS ordered CRA to begin reviewing a small number of files. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 63-65; see 1/9/14 2:05 p.m. Hr'g Tr. (Dufresne) at 24 (testifying that less than fifteen files were reviewed).) Indeed, by email dated March 27, 2013, Doyle stated that DHS was "fully prepared to move forward with evaluations even without guardian consent if necessary." (Pls.' Ex. 17 (3/27/13 Doyle email to Jack Lavin and others) (emphasis omitted).)
In his testimony, Doyle attempted to draw a distinction between the full ACCT process-from which a guardian may withdraw-and a records review by CRA-which DHS felt compelled to perform regardless of guardian wishes. (1/9/14 9:30 a.m. Hr'g Tr. (Doyle) at 14-17; see id. at 16 ("Just because they opt out of the CRA process doesn't mean they're opting out of an assessment.").) In any event, CRA admittedly reviewed files over guardian objection. CRA did not hold planning meetings with residents or guardians, or proceed with further steps in the ACCT process. (Id. at 33-34.) Doyle testified that the records reviews were necessary to see the status of the file, to plan how many clinical assessments might be needed, and to make sure they had sufficient resources to meet those needs. (Id.; see also 1/9/14 2:05 p.m. Hr'g Tr. (Dufresne) at 9-10.)
On the whole, the record demonstrates that DHS has not communicated consistently or effectively with Murray guardians about the ACCT process. While DHS likely faces pressure from all sides concerning the Murray closure, this unacceptable misstep, quite frankly, appears to be a root cause of this dispute.
Based on the record before us, however, we find that DHS does not require Murray guardians to participate in the ACCT process. Consistent with his 2012 statement to the MPA, for example, Casey testified at the hearing that families could opt out of the ACCT process, "start the process and stop it if they choose," or see it through but reject the results. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 24; see also id. at 25 ("If they don't wish to use that process or if they wish to step out of the process at the beginning, in the middle or at the end, we will assist them in finding an alternate placement.").) Dufresne similarly testified that the "ACCT process is an on-off switch," (1/9/14 2:05 p.m. Hr'g Tr. (Dufresne) at 22), which can be declined or terminated at any time, (id. at 24-25). (Id. at 25 (noting by way of an example that "a previous witness," presumably Holzhauer, began the process "and has now decided not to partake" further); see also 1/9/14 9:30 a.m. Hr'g Tr. (Doyle) at 17 ("They can opt out of the CRA process.").) Additionally, there is no suggestion (or evidence) that Defendants forced Jacksonville guardians to participate in the ACCT process when that facility was slated for closures. (See 1/9/14 9:30 a.m. Hr'g Tr. (Doyle) at 34; 1/9/14 2:05 p.m. Hr'g Tr. (Dufresne) at 26-29.)
Overall, the evidence presented demonstrates that-despite Defendants' insistence on access to files-families may opt out of the ACCT process and, as discussed further below, may reject CILA recommendations. (See, e.g., Defs.' Ex. 101 (SODC Implementation Outline & Key Features Plan Elaboration at 9 (Dkt. No. 1-1) (explaining that CRA is not responsible for inter-SODCs transfers); Defs.' Ex. 102 (9/9/12 MPA Mtg. Tr.) at 134 (discussing the regular process to be used for transition planning if a guardian opts out of the ACCT process).) In light of Plaintiffs' confusion, DHS would be wise to clarify exactly how and to whom guardians should express their wishes to decline or cease participation in the ACCT process, the full ramifications of that decision, and how guardians should proceed for individualized assessment and placement outside the ACCT process.
5 As we understand it, CR Alliance completes the assessments of each resident for potential community placement, while CR Associates coordinates residential placements with DHS and the PAS agent after assessments have concluded. (Mayer Decl. ¶¶ 1, 12, 19; Dufresne Decl. ¶¶ 1, 7-8.) For the sake of simplicity, however, we will refer to these entities collectively as "CRA."
6 Of course, Plaintiffs do not approve of the ACCT process, and we do not suggest otherwise. We summarize Plaintiffs' specific concerns about the ACCT process below, but, on the whole, they do not dispute Mayer's outline of the clinical process or challenge its components. (Post-Hr'g Reply at 9, directing to Pls.' Proposed Findings at 3-16 (raising concerns about the purpose and goals of the ACCT process, the State's lack of savings, the reliance of PCPs on the information already contained in the individual service plans ("ISPs") prepared by Murray staff, the general difficulty in ascertaining the wishes of a noncommunicative person, and the requirement that guardians participate in the ACCT process).)
7 Yaunches testified in her deposition that an individual cannot be placed in the community, via the HCBS Waiver Program, if they require 24-hour nursing care, or if they are considered a danger to themselves or others. (Yaunches Dep. at 46-48.)
8 Plaintiffs relatedly suggest that the ACCT process is inadequate because it does not follow the procedures outlined in Standard Operating Policy and Procedure 181 ("SOPP 181"), which is Murray's policy for facilitating community placement discharges. (See Henson Decl. ¶ 10 & Ex. C (SOPP 181).) Based on the record before us, it appears that SOPP 181 does not apply to transfers arranged through the ACCT process stemming from Murray's closure. The policy applies for community discharges only when requested by guardians, outside the context of a facility closure, and therefore does not govern the Murray closure. (Id., Ex. C; 1/7/14 Hr'g Tr. (Henson) at 51-52; 1/8/14 2 p.m. Hr'g Tr. (Starr) at 113.)
9 The hearing included testimony about the total inability of some residents to communicate during the PCP meetings and to express their preferences for their next placement. (1/9/14 9:30 a.m. Hr'g Tr. (Mayer) at 54-59, 64-66; 1/9/14 9:30 a.m. Hr'g Tr. (Holzhauer) at 86-87.) While this testimony highlights the limitations of both the residents and the ACCT process, we find it immaterial. Caring for these individuals, including assessing them for living arrangements, require caregivers and guardians to make inferences about their needs and desires on a daily basis. It is thus irrelevant that Murray staff and/or ACCT professionals must rely on the "best representations," including any guardian participation, of resident wishes. (1/9/14 9:30 a.m. Hr'g Tr. (Mayer) at 66 (acknowledging that CRA must rely on input from the group for a best guess of what a noncommunicative resident may prefer).)
10 Whether this alleged coercion would be unlawful discrimination as argued here is a separate legal question, which ultimately we need not address.
11 In addition to her position in the press, Seals also appears to be involved with MPA. (Defs.' Ex. 105 (1/13/13 Winkeler email indicating that Seals is part of the MPA legal committee).)