V. Concerns About Services Provided In CILAs

Apart from their concerns about the ACCT process, Plaintiffs highlight some of the problems they identified with the level of care provided at CILAs, as well as a few specific incidents that have occurred when Murray or Jacksonville residents have transitioned into the community.16 Plaintiffs contend that these facts show that CILAs cannot offer adequate services for their wards and, to the contrary, will endanger their health and safety.

Plaintiffs cite to the testimony of Freeman, the GAL for several Murray OSG wards, including fourteen individuals who have already transferred into CILAs from Murray.17 Freeman has visited his clients' CILA homes unannounced and identified several concerns at one or more of these facilities, including: (1) lack of on-the-job experience among the staff; (2) low pay and excessive work hours for the staff; (3) unlocked doors and/or medication containers; (4) inadequate padding for a client who exhibits self-injurious behavior; (5) insufficient sheets or safety measures for an client with pica disorder; (6) cleaning materials left in open access to the residents; (7) lack of an appropriate biohazard disposal receptacle; and (8) lack of personalization or decoration. (Freeman Decl. ¶¶ 10-16; see 1/7/14 Hr'g Tr. (Freeman) at 116-18.) Freeman encountered staff who did not know the location of the fire extinguishers or who lacked knowledge about the use and location of medication logs. (Freeman Decl. ¶¶ 12-13.) Freeman found that staff at two locations were not aware of, or conscientious about, resident dietary needs. (Id. ¶¶ 12, 15.)

In addition, CILA employees informed Freeman that they would sometimes transfer residents to another home for six to twelve hours, if staffing was short, and that employees would purchase items for residents with their own money if needed, including Ensure when a resident ran out of his or her required nutrition for a feeding tube. (Id. ¶ 18; see also 1/7/14 Hr'g Tr. (Freeman) at 116-26; 1/7/14 Hr'g Tr. (Gibson) at 84-85.) Freeman also testified that he heard that CILA staff were not grooming residents adequately and failed to consistently pack proper lunches for them.18 (1/7/14 Hr'g Tr. (Freeman) at 122-24.) (See also 1/7/14 Hr'g Tr. (Rapp) at 91-93.)

A few incidents require brief mention. One on occasion, CILA staff ran out of a client's seizure medication and could not obtain a refill for three or four days, which resulted in the resident having several seizures and requiring hospitalization. (Freeman Decl. ¶ 15; 1/7/14 Hr'g Tr. (Freeman) at 119-21.) At another location, in October 2013, Freeman dropped by in the middle of the afternoon and found all three of the home's employees outside smoking cigarettes, while the residents were inside unsupervised. (1/7/14 Hr'g Tr. (Freeman) at 124-26.) It is undisputed that a Murray resident, J.F., did not adjust well to her community placement and did not receive the supports she required, necessitating her return to an SODC.19 (Kerst Decl. ¶¶ 5-7,11-12; Fields Decl. ¶¶ 5-12, 15; 1/9/14 2:05 p.m. Hr'g Tr. (Dufresne) at 19-20 (conceding that  "the community did not have the right supports at the time for her").) Finally, as is wellestablished in the record, two residents of a CILA had an argument, culminating in a physical fight, on May 26, 2013. (9/23/13 Decl. of Kelly Rapp ¶¶ 9-12; 1/7/14 Hr'g Tr. (Rapp) at 93-103.) Only one staff member was working at the time, in violation of staffing protocol, and she called the police to help break up the altercation. (Rapp Decl. ¶ 11; 1/7/14 Hr'g Tr. (Rapp) at 95-99.) Although she also contacted her supervisor, both prior to and after the incident, her supervisor did not arrive at the home until approximately two hours after the fight. (1/7/14 Hr'g Tr. (Rapp) at 106-08.)

Casey conceded that these incidents occurred and constitute serious problems in the CILA placements. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 43-49; see also Casey Decl. ¶¶ 33-35.) Casey further testified-and it is not disputed-that altercations and mistakes, including medication errors, also occur in institutional settings. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 46-47 (stating that about 62 peer-to-peer altercations occurred in a twelve-month period at Murray); Casey Decl. ¶ 35.) Plaintiffs have not presented evidence that residents in community placements face a significant greater risk of altercations, medication errors, or other serious problems than residents of institutional placements. Nor have Plaintiffs presented evidence that such incidents in the community would result in greater or different harm than seen in an SODC.


With these facts in mind, we turn to the merits of Plaintiffs' motion. Plaintiffs have requested injunctive relief preventing the assessment and transfer of Murray residents and precluding the closure of Murray, and the appointment of a monitor. (See Pls.' Br. ISO Legal Theory (Dkt. No. 159) at 7.)

To obtain a preliminary injunction, Plaintiffs must show: (1) a reasonable likelihood of success on the merits; (2) no adequate remedy at law; and (3) irreparable harm absent the injunction. Planned Parenthood of Ind. v. Comm'r of Ind. State Dep't of Health, 699 F.3d 962, 972 (7th Cir. 2012); ACLU v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012); Long v. Bd. of Educ., Dist. 128, 167 F. Supp. 2d 988, 990 (N.D. Ill. 2001). If Plaintiffs meet all three of these threshold requirements, then we must go on to "consider the irreparable harm that the nonmoving party will suffer if preliminary relief is granted, balancing such harm against the irreparable harm the moving party will suffer if relief is denied." Long, 167 F. Supp. 2d at 990 (internal quotations omitted); Planned Parenthood of Ind., 699 F.3d at 972. We must also "consider how the public's interests would be affected by granting or denying the preliminary relief." Long, 167 F. Supp. 2d at 990; Planned Parenthood of Ind., 699 F.3d at 972. With respect to all of these factors, the court applies "a sliding scale approach-the more likely the plaintiff will succeed on the merits, the less the balance of irreparable harms need favor the plaintiff's position." Long, 167 F. Supp. 2d at 990; Planned Parenthood of Ind., 699 F.3d at 972; Girl Scouts of Manitou  Council, Inc. v. Girl Scouts of U.S., Inc., 549 F.3d 1079, 1100 (7th Cir. 2008).

In the event of an appeal, the Seventh Circuit would review our "factual findings for clear error, [our] legal conclusions de novo, and [our] balancing of the injunction factors for an abuse of discretion." Planned Parenthood of Ind., 699 F.3d at 972; Christian Legal Soc'y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006). In preparation for any such appeal, the Seventh Circuit encourages us to "conduct at least a cursory examination of all the aforementioned preliminary injunction considerations," even if we find that the moving party fails to satisfy one of them. Girl Scouts of Manitou Council, Inc., 549 F.3d at 1087.

16 Plaintiffs relatedly point out that CILAs cannot provide twenty-hour nursing for disabled individuals. The record includes conflicting testimony on whether Murray residents currently require, or receive, twenty-hour nursing care. (Compare Casey Decl. ¶ 20 (stating that although a nurse may be on duty at some cottages at all times, "no one at Murray receives 24 hour per day nursing care") and 1/8/14 10:30 a.m. Hr'g Tr. (Shaver) at 57-58 (testifying that 122 Murray residents attend his workshop daily and, despite their spectrum of issues, are capable of going out into the community) with Pls.' Ex. 10 (Starr 6/24/13 email, reporting that 42 residents from two cottages "will need 24 hour nursing care").) Perhaps there is some distinction-not addressed by the parties-between requiring nursing care twenty-four hours a day as a medical matter and benefitting from a nurse's presence on site twenty-four hours a day. Regardless, Defendants acknowledge that twenty-four hour nursing is not available in the community, although "any amount short of 24 hours is available . . . if medically necessary and would be funded." (Casey Decl. ¶ 20; Yaunches Dep. at 46-48.) Based on the evidence to date, it appears that Murray residents who medically require twenty-hour nursing would not be eligible for community placement at all, but Murray residents who require regular but less-than-twentyhour nursing care can be accommodated in the community.

17 Freeman's wards are not yet officially discharged from Murray but have been living at CILAs on "pre-transitional visits" for roughly a year. (Freeman Decl. ¶ 8.)

18 Much of the anecdotal testimony in the record-as presented by both parties-about the condition of particular CILAs or resident progress is hearsay. (See, e.g., Casey Decl. ¶ 36; Freeman Decl. ¶¶ 18; 1/7/14 Hr'g Tr. (Freeman) at 116-26.) To the extent such testimony is hearsay, we do not exclude it at this stage. (See 12/5/13 Op. (Dkt. No. 321) at 6.) In light of the opportunity here for the parties to develop a record prior to the preliminary injunction hearing, however, we decline generally to afford hearsay evidence as much weight as non-hearsay evidence. That being said, we have not relied on Defendants' exhibits 205 and 206, to which Plaintiffs objected, because we find them immaterial to our decision. We relatedly have not considered exhibits A, B, and C attached to the January 16, 2014 declaration of Rhonda Harris. (See Pls. Rebuttal to Affs. (Dkt. No. 373) at 2-3.)

19 Numerous additional facts about J.F.'s situation are disputed. (Compare Kerst Decl. ¶¶ 8-10 and Fields Decl. ¶ 14 with 1/16/14 Decl. of Cassidy Spesard ¶¶ 6-7 and Yaunches Decl. ¶¶ 15.) We are not inclined to make credibility determinations with respect to conflicting declaration testimony but, in any event, these disputes are immaterial given the record before us.