IV. Plaintiffs’ Concerns About Guardian Consent

Plaintiffs argue not only that Defendants are requiring them to engage in the ACCT process, but also that they are forcing them to accept CILA placements, with no other option, in violation of their rights and their wishes. It is undisputed that the ACCT process is designed to  identify what supports and services are needed for a developmentally disabled individual to live in a CILA, so as to effectuate a transition to the community. Plaintiffs allege that DHS, in furtherance of the Initiative, has refused to offer alternatives to CILA placement and, thus, is depriving them of both services and choice.

A. Guardian Consent for Community Placements

Plaintiffs testified that Defendants have refused to offer, or help locate, placements for Murray residents at other SODCs, private ICF/DDs, or at any type of facility other than CILAs. (Winkeler Decl. ¶ 16; Kelly Decl. ¶ 8-9; Decl. of Jeanine Williams ¶¶ 3, 9 (Dkt. No. 241-7); Holzhauer Decl. ¶ 5.) Winkeler, Holzhauer, and Kelly testified that in a January 15, 2013 meeting with Doyle, he stated that the only type of placements under consideration were two-tofour bed CILAs. (1/7/14 Hr'g Tr. (Winkeler) at 45-46; 1/7/14 Hr'g Tr. (Kelly) at 229-3l; 1/9/14 9:30 a.m. Hr'g Tr. (Holzhauer) at 79-80.) Winkeler and Kelly testified that Doyle specifically indicated at that meeting that SODCs other than Murray were not an option. (1/7/14 Hr'g Tr. (Winkeler) at 45; 1/7/14 Hr'g Tr. (Kelly) at 230 (stating further that no one from DHS has told her than another SODC is an option).) In a January 17, 2013 meeting with a CRA representative, Holzhauer was again told that two-to-four bed homes were the only option. (1/9/14 9:30 a.m. Hr'g Tr. (Holzhauer) at 80.) Plaintiffs thus contend that DHS is forcing them to accept CILA placements as the only choice, stripping them of their right to consent to such placements.

On the whole, however, the facts in the record-including uncontroverted written evidence-do not support a finding that Defendants are impeding or would impede Plaintiffs' right to consent to, or reject, community placement. For example:

  • Kelly reported, by email dated May 18, 2012, that Doyle told her that SODCs would be available if guardians desired them, because the State was not closing all SODCs. (Defs.' Ex. 103 (5/18/12 Kelly email).)
  • In her July 20, 2012 email intended for distribution to MPA members, Winkeler recounted a meeting with Dufresne, Doyle, Casey and others, wherein Casey "said that under federal law parents have the right to decide the final placement for their loved one." (Defs.' Ex. 106 (4/20/12 Winkeler email to Becherer).)
  • In his September 9, 2012 comments at the MPA meeting, Casey stated that guardians "have a right to choice between an [ICF], either public or private, or a community program" as among willing and qualified providers. (Defs.' Ex. 102 (9/9/12 MPA Mtg. Tr.) at 14; see also id. at 22 (DHS is "not going to force you into the four-bed group home."). Casey further clarified that, if at the end of the ACCT process a guardian decides that SODC placement is necessary, DHS would "talk to you about that at the time, but yes, it's an option." (Id. at 85.)
  • In a January 18, 2013 email to Winkeler, following their meeting, Doyle recognized Winkeler's unwillingness to participate in the ACCT process or consider a CILA placement for her son. Doyle encouraged Winkeler to "contact the Murray social worker and begin sooner than later the process of seeking out a private ICF/DD." (Defs.' Ex. 100 (1/18/13 Doyle email to Winkeler).)
  • Januari Smith's email to Monica Seals, relayed to Winkeler, provides that "if there are circumstances in which alternatives to community placement need to be considered they will be addressed on a case by case basis." (Defs.' Ex. 109 (4/17/13 email thread).). Smith repeatedly stated in her communication to Seals that DHS "will work with individuals/families that prefer to transition to other SODCs or private . . . [ICF/DDs]." (Id.)

Relevant witness testimony also uniformly demonstrates that no Murray resident has been or would be transferred into the community over guardian objection. For example:

  • Kelly admitted that she has known, since before the lawsuit was filed, that no community provider would accept her son over her objections. (1/7/14 Hr'g Tr. (Kelly) at 247-48.) She further testified that, while she knows DHS cannot compel community placement, she fears that other less-informed parents could be intimidated by Defendants. (Id. at 248.)
  • Henson, a Murray social worker, testified that a resident cannot leave for a community placement unless the guardian signs a document. (1/7/14 Hr'g Tr. (Henson) at 49.) 
  • Freeman, the GAL for the OSG wards, confirmed that the guardian-whether public or private-must consent to a CILA placement. (1/7/14 Hr'g Tr. (Freeman) at 149.)
  • Casey, Starr, and Doyle each stated that guardians must consent before any transfer,whether to a CILA or otherwise. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 24 ("The guardian always retains the ultimate choice."); id. at 22-24, 61, 65; 1/8/14 2 p.m. Hr'g Tr. (Starr) at 119; 1/9/14 9:30 a.m. Hr'g Tr. (Doyle) at 34; see also Casey Decl.¶ 23.)
  • Mayer and Dufresne similarly testified that guardians are free to ignore the recommendations of CRA personnel and that guardians make the final placement decision in every case. (1/9/14 9:30 a.m. Hr'g Tr. (Mayer) at 59-60; 1/9/14 2:05 p.m. Hr'g Tr. (Dufresne) at 26; see also Dufresne Decl. ¶ 10 ("[CRA] will never continue to recommend transition into a CILA in the absence of a guardian's consent."); Mayer Decl. ¶ 10.)
  • To date, the transfers of Murray residents into CILAs have occurred only with guardian consent. (See 1/7/14 Hr'g Tr. (Henson) at 48-49; 1/7/14 Hr'g Tr. (Freeman) at 135-38; 1/7/14 Hr'g Tr. (Howell) at 191 (confirming her understanding that two Murray residents, T.K. and M.A., moved to their home with guardian consent); 9/21/13 Decl. of William Fields ¶ 5 (stating that he consented for J.F.'s transfer to a CILA).)

Moreover, there is no evidence that Defendants-the same actors, using the same procedures-transferred Jacksonville residents into community homes against guardian wishes, when that facility closed in 2012. (See, e.g., Casey Decl. ¶ 32 (noting that some Jacksonville families chose SODCs or private ICF/DDs, while others refused to participate in the ACCT process and their wards transferred to other SODCs).) In fact, the evidence shows that Jacksonville residents transitioned to other SODCs and private ICF/DDs, as well as CILAs or other community options. (Casey Decl. ¶ 32; see also 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.) Even when DHS could not ascertain guardian wishes-because they neglected to provide direction-DHS transferred Jacksonville residents to other SODCs but did not elect unilaterally to place them in the community. (1/8/14  2 p.m. Hr'g Tr. (Casey) at 65-66.) Consistent with this evidence, we cannot find that Defendants have forced, or likely will force, Murray residents into CILAs without guardian consent.12

B. Feasible Alternatives

Yet we also assess Plaintiffs' consent argument as a basic logistical concern. Indeed, Plaintiffs assert that a choice among nonexistent options is no choice at all.

Plaintiffs point out that there may not be enough spots available at other SODCs to accommodate Murray residents in the event that, as can be reasonably expected, many guardians insist on an institutional placement. As of June 14, 2013, for example, the six SODCs slated to remain open had the capacity to take 100 additional residents, with some renovations and added staffing support at the Fox and Shapiro locations. (Pls.' Ex. 18 (6/14/13 Greg Fenton email to Doyle with census and capacity numbers); 1/9/14 9:30 a.m. Hr'g Tr. (Doyle) at 21-23.) That June 2013 capacity could not accommodate all, or even half, of the roughly 225 Murray residents, if families reject the ACCT process and/or a community recommendation.

Plaintiffs also offered evidence indicating that private ICF/DDs lack sufficient capacity to accept a significant number of Murray residents, or could decline to accept them. Shaver testified, for example, that although Bryan Manor could serve individuals with severe disabilities like many of the Murray residents, the ICF/DDs in Illinois generally could not handle more than handful of such individuals. (See 1/8/14 10:30 a.m. Hr'g Tr. (Shaver) at 15, 37.) Shaver stated that Bryan Manor is "full all the time," with a waiting list. (Id. at 38.) Other witnesses described how ICF/DDs can deny admission and can expel residents if they feel a placement is not working. (Winkeler Decl. ¶ 14 (learning that two facilities do not have capacity to take her son); Kelly Decl. ¶ 9 (stating that she "will not be able to secure the [DD] treatment Eric requires on my own"); Burke 30(b)(6) Decl. ¶¶ 9-11 (explaining that "private facilities do not have to accept residents, or may accept an individual and then expel him or her, as has been the experience of many guardians" and recounting that her son was expelled from at least two such facilities); Williams Decl. ¶¶ 9, 15 (stating that she has not been able to obtain ICF/DD treatment for her brother); see also Schoppet Decl. ¶ 3 (noting that her son was rejected by ICF/DDs when she applied in 2001). Under these circumstances, and as Casey conceded, SODCs represent "the safety net for the system." (1/8/14 2 p.m. Hr'g Tr. (Casey) at 69.)

With respect to CILAs, the hearing included evidence that Defendants have had some difficulty developing community housing suitable for Murray residents, particularly in the Centralia area. As Shaver explained, most of the housing would need to be new construction, as a more cost-effective means of accommodating medical equipment, lifts, special tubs, oversized bathrooms, or other amenities necessary to ensure accessability. (1/8/14 10:30 a.m. Hr'g Tr. (Shaver) at 40-41.) A DHS document confirmed as much, noting that both lead time and rent decisions would be critical for developers to enter into contracts and begin their work, particularly when approximately 100 Murray residents would require fully-accessible homes for wheelchairs. (Pls.' Ex. 19 (3/3/13 Issue Paper); see also Casey Decl. ¶ 37 (addressing fiscal concerns).) Due to negative reactions and pressure from the community, Defendants ceased development in Centralia and began looking for housing opportunities in other communities.13  (1/9/14 9:30 a.m. Hr'g Tr. (Doyle) at 28-33 (describing instances of harassment of staff, residents, and developers at homes in Centralia, the lack of support from the city council and public, and developers' reluctance to open homes there); Pls.' Ex. 21 (6/19/13 Doyle email to Jack Lavin re: City of Centralia Focus).) Plaintiffs contend that, under these facts, they lack legitimate housing options should Murray close, rendering the promise of consent meaningless.

Construing the facts on the whole, however, we are not persuaded. We do not find Plaintiffs' interpretation of the facts convincing because it overlooks the deliberate pacing of the process as well as DHS's efforts thus far to provide accommodations.
Although it is undisputed that additional housing options, institutional or otherwise, will be needed for the roughly 225 Murray residents upon closure, the record demonstrates that it is neither necessary nor feasible for those options to be physically available right now. While Plaintiffs' position raises valid questions about capacity and timing, Defendants cannot yet be expected to have concrete answers for each resident-particularly when Plaintiffs generally have refused to cooperate to help secure housing options of any kind. (1/7/14 Hr'g Tr. (Kelly) at 250-51 (testifying that the MPA has agreed, as a group, not to work yet with Murray staff to coordinate future placements, outside the ACCT process, because they prefer to wait and see what happens with this litigation); Defs.' Ex. 125 (2/25/13 Winkeler email intended for distribution to MPA members14).) As Defendants have described it, the transition process requires them to work with Plaintiffs-preferably through the ACCT process-to identify what a Murray resident needs from their next home and only then develop and/or identify specific choices from providers, whether public or private. (See Dufresne Decl. ¶¶ 15-16 & Ex. 4. (flowchart of ACCT process); 1/9/14 9:30 a.m. Hr'g Tr. (Mayer) at 67-70 (discussing how the provider is involved in the transition planning process to develop a suitable home); see also 1/8/14 2 p.m. Hr'g Tr. (Casey) at 14-15 (describing the person centered planning approach, as the opposite of a "slot mentality")); Defs.' Ex. 102 (9/9/12 MPA Mtg. Tr.) at 18-19. Thus, by design, the moment for guardian choice comes later.

Nonetheless, for guardians prepared to elect an institutional placement, DHS has expressed its willingness to allow and effectuate those transitions. As mentioned earlier, DHS has repeatedly stated that SODCs will be an option, which can be discussed with guardians on a case-by-case basis. (See, e.g., 1/8/14 2 p.m. Hr'g Tr. (Casey) at 24, 55, 59, 88-89; 1/9/14 9:30 a.m. Hr'g Tr. (Doyle) at 34.) Murray and Jacksonville residents have transferred to other SODCs by choice. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 88-89; 1/9/14 9:30 a.m. Hr'g Tr. (Doyle) at 26-27, 34; Casey Decl. ¶ 32.) Casey admitted that it would be "counterproductive" if the majority of Murray families elected another SODC placement in lieu of considering CILAs. He nonetheless stated that, should that occur, he will find some way to respect those choices. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 59.)

To that end, DHS has been working to increase capacity at the six other SODCs. (Casey Decl. ¶ 26; 1/9/14 9:30 a.m. Hr'g Tr. (Doyle) at 37-39.) Recognizing that "many families were going to opt for other SODC placements," Defendants began resident assessments in the summer of 2013 for potential community placement for interested families from other locations. (1/9/14 9:30 a.m. Hr'g Tr. (Doyle) at 39.) At the hearing, Doyle testified that he anticipated approximately 95 additional transitions to be completed by March 2014 and that DHS would continue "to build capacity for potential Murray folks."15 (Id.) DHS representatives have also stated that the Division will help Murray guardians seek placements at private ICF/DDs. (1/9/14 9:30 a.m. Hr'g Tr. (Doyle) at 35; 1/8/14 2 p.m. Hr'g Tr. (Casey) at 22-25; Defs.' Exs. 100, 109; see also Yaunches Decl. ¶¶ 5-6, 9.)

When we consider all of these facts, including how the process works and DHS's ongoing efforts to increase SODC capacity, we find that Defendants have not deprived, and will not deprive, Plaintiffs of their right to choose among placement options, even if those options have yet to be fully realized.

12 We do not suggest that Plaintiffs lack credibility, specifically with respect to testimony about the January 15, 2013 meeting with Doyle. Even if Doyle misstated DHS's position at that meeting, however, we credit the overwhelming weight of evidence showing that residents will not be placed in CILAs over guardian objections.

13 Plaintiffs themselves have discouraged the development of group housing in Centralia. Shaver testified that Winkeler instructed him to "hold off" on developing larger homes, as he had planned and had offered to do once he concluded the closure would likely proceed. (1/8/14 10:30 a.m. Hr'g Tr. (Shaver) at 66-70.)

14 In her email, for example, Winkeler advises the MPA membership that:

If the worst happens and the injunction does not occur then we will have PLENTY of time to find suitable housing for our loved ones. Do not rush into a situation you will regret. If you are happy with Murray Center then the best course of action is to WAIT, and do nothing.

(Defs.' Ex. 125 (emphasis in original).) Murray guardians, of course, are free to make placement decisions for their wards as they see fit, despite any pressure from either the MPA or DHS. (See, e.g., 1/7/14 Hr'g Tr. (Winkeler) at 41-42.)

15 If Doyle's estimate held up, DHS could therefore accept roughly 195 inter-SODC transfers from Murray, subject to other admissions and discharges in the interim.