Plaintiffs allege that Defendants' conduct constitutes disability discrimination in violation of Title II of the ADA and § 504 of the Rehabilitation Act, denies Plaintiffs and the purported class members equal protection under the law, and deprives them of choice as required by § 1396n(c)(2)(C) of the Medicaid Act. The question posed by this first element of the preliminary injunction analysis is whether Plaintiffs have established a "better than negligible chance of succeeding on the merits of at least one of [these] claims." Girl Scouts of Manitou Council, Inc., 549 F.3d at 1096; Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 897 (7th Cir. 2001); Washington v. Indiana High Sch. Ass'n, Inc., 181 F.3d 840, 846 (7th Cir. 1999). "This is an admittedly low requirement and is simply a threshold question." Girl Scouts of Manitou Council, Inc., 549 F.3d at 1096 (citing Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 387 (7th Cir. 1984)). "Only after we clear the threshold inquiries and proceed to the balancing phase of the analysis must we determine how likely [Plaintiffs'] success must be for us to issue the requested injunction." Girl Scouts of Manitou Council, Inc., 549 F.3d at 1096; Ty, Inc., 237 F.3d at 895.
A. ADA and Rehabilitation Act Claims20 (Counts 1 and 2)
To succeed on a claim of disability discrimination under these statutes,21 Plaintiffs must demonstrate that: (1) they are (or represent) qualified individuals with disabilities; (2) they have been denied "the benefits of the services, programs, or activities of a public entity;" and (3) the denial or exclusion was "by reason of such disability." 42 U.S.C. § 12132; see also 29 U.S.C. § 794(a); Brad K. v. Bd. of Educ. of City of Chi., 787 F. Supp. 2d 734, 746-47 (N.D. Ill. 2011); Phipps v. Sheriff of Cook Cty., 681 F. Supp. 2d 899, 913 (N.D. Ill. 2009). The third element-the "by reason of disability" language-requires a showing of "but for" causation. Wisconsin Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 752 (7th Cir. 2006); Washington, 181 F.3d at 849 (explaining that this language required proof that "but for his learning disability, [plaintiff] would have been eligible" for the particular program at issue). As there is no question that the Plaintiffs and their wards satisfy the first element, we turn our focus to the second and third elements.
1. Denial of the Benefits of Service, Programs, or Activities
We begin our consideration of this second prong with the obvious question: what services, programs, or activities have Defendants allegedly denied Plaintiffs? Plaintiffs assert that they have been excluded "from the benefits and services of the Illinois SODC program," as intended by Defendants per the goals of the Initiative and as effectuated through the ACCT process. (Post-Hr'g Mem. at 7; see id. at 4, 6-8, 11-12, 14, 21; Post-Hr'g Reply at 3.) They relatedly contend that they have been excluded from choice and services under the Medicaid Act. (Post-Hr'g Mem. at 6-7.)
a. "SODC Program"
Plaintiffs have not specified what particular benefits, services, or activities of the "Illinois SODC program" are at issue. Plaintiffs concede that they are not entitled to receive services or benefits at any particular SODC. (See Pls.' Resp. to DOJ Interest St. (Dkt. No. 48) at 2-4 ("Regardless of Plaintiffs' desire to continue living in their respective SODCs, Plaintiffs do not claim a right to live in these particular SODCs.") Simply put, Murray residents and guardians have no legal claim to Murray itself. See O'Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 785-86, 100 S. Ct. 2467, 2475-75 (1980); Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906, 909-11 (7th Cir. 2003).
To the extent that Plaintiffs contend that they have been, or will be, denied access to needed services at any SODC within the State, that claim is not supported by the record. As discussed in detail above, the evidence shows that: (1) Defendants will work with Murray guardians to arrange SODC placement for those who ultimately request it;22 and (2) Defendants are attempting to increase capacity at other SODCs to make such placements a reality. (See supra Part IV.) As a result, Plaintiffs have not established even a negligible chance of success on this argument.
b. ACCT Process
Plaintiffs' claim for a denial of benefits can be construed as an attack on the ACCT process itself rather than the deprivation of SODC placements. Plaintiffs presented evidence that Defendants have set aside their usual transition protocol, SOPP 181, and implemented the ACCT process, which does not necessarily involve substantial input from Murray staff. (See supra Part III.B.2.) Plaintiffs thus may be arguing that Defendants are depriving them of a "better" process involving Murray staff and instead are requiring them to participate in the ACCT process. There are several problems with this theory.
First, Plaintiffs have not established any entitlement to SOPP 181, especially in the closure context, or to any other assessment process. Second, we are not in a position to determine whether either process at issue satisfies some unarticulated objective level of acceptability, let alone which process might be "better," assuming they are not equivalent. Third, and most importantly, while Plaintiffs contest the intended outcome of the ACCT process, we have found that: (1) Defendants permit guardians to decline or cease participation in the ACCT process; and (2) guardians retain the right to reject any community placement recommendation. (See supra Parts III.C and IV.A.) Under these circumstances, Plaintiffs have not shown a likelihood of success on the theory that Defendants' reliance on the ACCT process itself constitutes a denial of benefits, services, or activities.
c. Services Provided in the Community
While Plaintiffs also presumably contend that Murray residents will not receive the same level of benefits in community placements (if selected), they have not adequately identified any significant particular services, programs, or activities that Defendants have failed, or likely would fail, to provide as needed. The record includes some evidence, for example, that dental care is difficult to obtain for the developmentally disabled in the community, but Plaintiffs have not argued that Defendants are denying access to such care. (See, e.g., Defs.' Ex. 102 (9/9/12 MPA Mtg. Tr.) at 92-93 (Winkeler, stating that Medicaid will no longer pay for her brother's general dental care in his community placement, and Casey, clarifying that the problem is Medicaidwide); Winkeler 30(b)(6) Decl. ¶ 17; Decl. of Kimberly Davis ¶¶ 12, 14.) Defendants concede that CILA placement is not an option for individuals who medically require twenty-four hour nursing care, which may include numerous Murray residents. (See supra Part V at n.16.) But Plaintiffs have not demonstrated that any individual who medically requires twenty-four hour nursing care has been, or likely will be, forced into a CILA that cannot meet that need. Nor can Plaintiffs make such a showing, in light of the substantial evidence that residents will not be transferred into the community over guardian objection. (See supra Part IV.A.)
We add that, although Plaintiffs presented evidence of personnel problems and several truly unacceptable conditions or errors at CILAs (see supra Part V), they have not addressed how these incidents represent a denial of benefits for ADA or Rehabilitation Act purposes, either as to the individuals affected or to the class as a whole. The parties did not raise the issue, but we perceive a potential difference between claims based on an isolated medication error or placement failure, for example, and claims based on a state's hypothetical refusal to provide a certain type of medication or program altogether. See, e.g., Storr v. Marik, No. 13 C 3236, 2013 WL 6577374, at *4 (N.D. Ill. Dec. 10, 2013) (noting, in the context of a Fair Housing Act accommodation claim, that the "alleged failure to remove mold, install lighting, check for potential toxins, and replace faulty windows are properly characterized as landlord-tenant issues; they are not refusals to alter an existing policy or practice to allow an individual with a disability to enjoy the same access to property that other individuals enjoy."). No doubt there is a line to be drawn, but we need not consider it today in light of our ruling.
In sum, the record establishes that no Murray resident will be transferred to a CILA over guardian objection. In light of this choice, and the availability of placement options, Plaintiffs have not established any measurable likelihood of success on this element.
2. By Reason of Disability
We turn to the third and final element of the statutory discrimination claims, the causation inquiry. Wisconsin Cmty. Servs., 465 F.3d at 754; Washington, 181 F.3d at 849. Plaintiffs can succeed on this prong only if they demonstrate that "but for" their disabilities, they "would have been able to access the services or benefits desired." Wisconsin Cmty. Servs., 465 F.3d at 754; see also Maxwell v. South Bend Work Release Ctr., No. 09 C 08, 2011 WL 4688825, at *6 (N.D. Ind. Oct. 3, 2011) (stating that plaintiff must prove his disability "was a necessary condition for his removal from the program"). The Seventh Circuit has explained that "discrimination under both acts may be established by evidence that (1) the defendant intentionally discriminated on the basis of disability, (2) the defendant refused to provide a reasonable accommodation, or (3) the defendant's rule disproportionally impacts disabled people." Washington, 181 F.3d at 847; Wisconsin Cmty. Servs., 465 F.3d at 753; Culvahouse v. City of LaPorte, 679 F. Supp. 2d 931, 937 (N.D. Ind. 2009).
We begin with Plaintiffs' overarching theory that the Initiative, and by extension the ACCT process, are themselves discriminatory. In their intentional discrimination argument, Plaintiffs contend that the Initiative and the ACCT process are designed to "recast"v (i.e., downgrade) Murray residents' disabilities23 so that the residents can be purposefully excluded from the SODC program and forced out into the community. (Post-Hr'g Mem. at 7-13.) Plaintiffs vilify Defendants' position that "all persons with developmental disabilities can be served in a community setting with the appropriate supports and services." (Mayer Decl. ¶ 10; see also supra Part III.B.1.) We agree with Defendants, however, that their predisposition in favor of the integration of the developmentally disabled population cannot alone constitute unlawful discrimination.
As Defendants point out, their position is entirely consistent with the Supreme Court's decision in Olmstead. 527 U.S. at 587, 597, 601-07, 119 S. Ct. at 2181, 2185, 2187-90. The Olmstead court concluded that:
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, 119 S. Ct. at 2190. The Initiative seeks to make community-based treatment a reality for more Illinois citizens who need and desire it, using the ACCT process to help determine whether the community can accommodate a particular individual. Defendants' approach does involve a presumption about the disabled, but Plaintiffs have not presented either evidence or legal argument showing that Defendants' presumption is an unlawfully discriminatory bias.
Moreover, the record demonstrates that Defendants' presumption in favor of integration is rebuttable. The parties agree that-even assuming guardian consent-not every SODC resident can be accommodated in the community, either because of the severity of their disabilities or because accommodations would not be cost-effective. (See supra Part II.B.; see also 1/7/14 Hr'g Tr. (Kelly) at 249; 1/8/14 10:30 a.m. Hr'g Tr. (Shaver) at 37-41.) This position, too, is consistent with Olmstead. In its opinion, the Supreme Court emphasized that "nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings." 527 U.S. at 601-02, 119 S. Ct. at 2187. The court went on, specifically commenting that for some individuals, "no placement outside the institution may ever be appropriate." Id. at 605, 119 S. Ct. at 2189 ("Nor is it the ADA's mission to drive States to move institutionalized patients into an inappropriate setting, such as a homeless shelter."). The Olmstead decision thus conditions community placement on several factors, including a conclusion by the State's treatment professionals that a CILA is appropriate and consent from the affected person or guardian. The Initiative comports with these principles, as Defendants acknowledge that one size may not fit all and that guardians must consent to final placement decisions.
Aside from this overarching disagreement, Plaintiffs contend that their exclusion from the SODC program is "because of" their disability. We briefly address Plaintiffs' evidentiary arguments below.
a. Intentional Discrimination
To demonstrate a likelihood of success under this approach, Plaintiffs must show that "but for" their disabilities, they would continue to enjoy equal access to the services offered through the SODC program, as well as equal choice. Wisconsin Cmty. Servs., Inc., 465 F.3d at 754; Washington, 181 F.3d at 849. Plaintiffs have framed this argument in various ways. For example, in their post-hearing brief, Plaintiffs assert that "'but for' the decision to recast Plaintiffs, pursuant to a predetermined agenda, Plaintiffs would not be excluded from the SODC Program and from participation in the full gamut of ICF-MR services and choice." (Post-Hr'g Mem. at 12.) Plaintiffs relatedly contend that SODC residents-who are among the most severely disabled-are the "targets" of the Initiative. As a result, Defendants' exclusion of them from the SODC program "is accomplished on the basis of disability by recasting" them for community living. (Id. at 12-13; see also Post-Hr'g Reply at 10.)
Plaintiffs' iterations are neither clear, nor persuasive. They do not satisfy the "but for" requirement because the "but for" cause, as described, is the Initiative itself, rather than Plaintiffs' disabilities. There is no dispute that Murray residents are disabled and are affected by Defendants' conduct. But we cannot infer from those facts alone that Defendants' decisions to close Murray, to implement the ACCT process, or to adopt the Initiative were made "because of" Plaintiffs' disabilities.24
b. Failure to Accommodate
The Seventh Circuit has set forth several important guideposts for evaluating failure to accommodate claims, also known as reasonable modification claims, under Title II.
First, as our cases already hold, failure to accommodate is an independent basis for liability under the ADA. Second, the plain language of the [ADA implementing] regulation also makes clear that an accommodation only is required when necessary to avoid discrimination on the basis of a disability. Third, the regulation states, in its plain language, that any accommodation must be a reasonable one.
Wisconsin Cmty. Servs., Inc., 465 F.3d at 751 (discussing 28 C.F.R. § 35.130(b)(7)) (emphasis in original). The court added that the pertinent regulation "clearly contemplates that prophylactic steps must be taken to avoid discrimination." Id. Plaintiffs in these types of cases typically request modifications to allow them to fully participate in programs or opportunities that they otherwise would miss because of their disabilities. See, e.g., Wisconsin Comm' Servs., 465 F.3d at 741-46, 754-55 (addressing plaintiff's claim for a special use zoning permit that would permit a mental health clinic to relocate in a particular neighborhood); Washington, 181 F.3d at 842-43 (addressing plaintiff's request, in light of his learning disabilities, for an exception to the rule limiting a player's eligibility to play high school sports to eight semesters); Culvahouse, 679 F. Supp. 2d at 938-42 (addressing plaintiffs' claims that the City of LaPorte violated Title II by failing to maintain and fix public sidewalks as necessary to enable disabled residents to use them to get around town).
Here, Plaintiffs argue that "Defendants' current plan of placing Murray residents into only 1-to-4 bed group homes and nowhere else violates the ADA because it fails to provide Plaintiffs a reasonable accommodation." (Post-Hr'g Mem. at 13 (emphasis in original).) As discussed throughout this opinion, the facts in the record do not support the assertion that Defendants have deprived or will deprive guardians of choice. (See supra Part III.C. and IV.) In addition, Plaintiffs have not articulated how the current plan constitutes discrimination because of the SODC residents' disabilities or what further necessary accommodation would help avoid that discrimination. See Wisconsin Comm' Servs., 465 F.3d at 754 (stressing that the disability must be the "cause-in-fact" of the alleged deprivation). Although Plaintiffs focus on the ACCT process, (see Post-Hr'g Reply at 10), Defendants have offered to accommodate Plaintiffs by permitting them to withdraw from that process and, moreover, by confirming Plaintiffs' undisputed right to choose among placement options, whether or not the ACCT process is utilized. Plaintiffs have not requested any additional necessary, reasonable accommodation that could offer them relief.
c. Disparate Impact
Disparate impact claims require "proof that a facially neutral policy unjustifiably falls more harshly on a protected group than on others." Nikolich v. Vill. of Arlington Heights, 870 F. Supp. 2d 556, 563 (N.D. Ill. 2012); see Daveri Dev. Group, LLC v. Vill. of Wheeling, 934 F. Supp. 2d 987, 1002 (N.D. Ill. 2013). The Seventh Circuit recently clarified that disparate impact claims are cognizable under Title II even if comparing members of the same protected class, as alleged here. Amundson ex rel. Amundson v. Wisconsin Dep't of Health Servs., 721 F.3d 871, 874-75 (7th Cir. 2013); see Nelson v. Milwaukee Cty., No. 04 C 193, 2006 WL 290510, at *5 (E.D. Wis. Feb. 7, 2006) ("[T]o the extent that plaintiffs allege that defendants are treating them worse than persons with less severe disabilities, they may proceed as such claims allege differential treatment by reason of disability.").
Under this third approach, Plaintiffs assert that the Initiative, with the ACCT process, "disparately impacts the Plaintiffs from participation in the Illinois SODC Program (and services provided thereunder), and services that provide for the right to choose between adequate and safe institutional and community services." (Post-Hr'g Mem. at 14.) The crux of Plaintiffs' disparate impact argument-along with their equal protection argument-is that because they are residents of SODCs, they "have been singled out from the general adult DD population and denied equal access and equal choice" through and because of the ACCT process. (Id. at 20-21; see id. at 15, directing to equal protection argument at 20-23.) Plaintiffs claim that Defendants "want to deprive SODC residents of their services to give the money formerly utilized by SODC care to someone else whose disability is easier and cheaper for the state to handle." (Id. at 23.)
Plaintiffs contend that they are being treated differently than other developmentally disabled adults who are not subject to the ACCT process because they do not reside in SODCs.25 But Plaintiffs have not introduced sufficient evidence that they are being treated "worse," Amundson, 721 F.3d at 875, or "more harshly," Nikolich, 870 F. Supp. 2d at 563, than this other group of individuals. Plaintiffs' attacks on the ACCT process have fallen flat, as discussed earlier. (Supra Part III.B, III.C, and VI.A.1.b.) In addition, the evidence overall does not support Plaintiffs' allegations that they have been or will be unjustifiably denied access to future institutional placements or to any particular necessary services. (Supra Part VI.A.1.) Nor does the evidence before us show any likelihood at all that Plaintiffs have been or will be denied their right to consent to community placement. (Supra Part IV.)
In sum, we conclude that Plaintiffs have not established a better than negligible likelihood of success on the merits of their ADA and Rehabilitation Act discrimination claims.
B. Equal Protection Claim (Count 4)
We turn now to consider preliminarily the merits of Plaintiffs' equal protection claim. To prevail, Plaintiffs must show that Defendants: (1) "treated [them] differently from others who were similarly situated, (2) intentionally treated [them] differently because of [their] membership in the class to which [they] belonged (i.e., [the developmentally disabled]), and (3) because [the disabled] do not enjoy any heightened protection under the Constitution, . . . that the discriminatory intent was not rationally related to a legitimate state interest." Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 950-51 (7th Cir. 2002); City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 442, 105 S. Ct. 3249, 3255-56 (1985); Chavez v. Illinois State Police, 251 F.3d 612, 635-36, 645 (7th Cir. 2001); Anderson v. Cornejo, 284 F. Supp. 2d 1008, 1037-38 (N.D. Ill. 2003). "The core of any equal protection case is, of course, a showing of intentional discrimination." Bohen v. City of Chi., 799 F.2d 1180, 1186-87 (7th Cir. 1986); Chavez, 251 F.3d at 645; Nabozny v. Podlesny, 92 F.3d 446, 453-54 (7th Cir. 1996).
Similar to their disparate impact claim, Plaintiffs contend that Defendants are violating the Fourteenth Amendment's equal protection clause by depriving them "of programs and services afforded to other developmentally disabled adults," including the right to reject community placement. (Post-Hr'g Mem. at 20-21.) But as with the disparate impact claim, Plaintiffs are unlikely to succeed on these allegations.
In addition, Plaintiffs' evidence to date is inadequate to show that Defendants acted intentionally, or at least with deliberate indifference for equal protection purposes. Chavez, 251 F.3d at 645; Nabozny, 92 F.3d at 453-54. This showing of discriminatory intent "implies that a decisionmaker singled out a particular group for disparate treatment and selected his course of action at least in part for the purpose of causing its adverse effects on the identifiable group." Nabozny, 92 F.3d at 453-54 (internal quotation omitted); Chavez, 251 F.3d at 645; Anderson, 284 F. Supp. 2d at 1038. Plaintiffs cannot succeed with proof merely that Defendants were negligent or even that Defendants were aware of the consequences of their decision. Nabozny, 92 F.3d at 453-54 (internal quotation omitted); Chavez, 251 F.3d at 645. Plaintiffs here have not offered evidence from which we could infer that Defendants have acted, in whole or in part, with the express purpose of depriving SODC residents of either placement choice or necessary services. Defendants admittedly seek to transition as many SODC residents as possible into community arrangements, but, on the facts before us, we cannot make the inferential leap necessary to find that this goal suggests intentional discrimination.26
C. Medicaid Act Claim (Count 5)
In addition to their discrimination claims, Plaintiffs contend that the Initiative and the ACCT process violate Medicaid and related regulations. (Compl. ¶¶ 91-98; Post-Hr'g Mem. at 15-20; Post-Hr'g Reply at 10-14.) Under the HCBS Waiver Program, Congress authorized funding for "states to give individuals who would otherwise be eligible to receive Medicaid benefits in a more traditional, long-term institution the option of receiving care in their home or in community-based residences." Ball v. Rodgers, 492 F.3d 1094, 1098 (9th Cir. 2007). In considering Plaintiffs' claim, we are mindful that "the purpose of a waiver program . . . is to enable medically needy individuals to avoid institutionalization by making services available to them that are otherwise not part of the State's basic Medicaid program." Radaszewski, 383 F.3d at 611-12; see also id. at 601-02.
To qualify for the HCBS Waiver Program, states must provide "certain 'assurances' to the Secretary of Health and Human Services." Ball, 492 F.3d at 1098 (citing 42 U.S.C.§§ 1396n(c)(2), (d)(2)). Section 1396n(c)(2)(C) requires one such assurance:
[S]uch individuals who are determined to be likely to require the level of care provided in a hospital, nursing facility, or intermediate care facility for the mentally retarded are informed of the feasible alternatives, if available under the waiver, at the choice of such individuals, to the provision of inpatient hospital services, nursing facility services, or services in an intermediate care facility for the mentally retarded.
42 U.S.C. § 1396n(c)(2)(C). The parties do not dispute that Murray residents qualify for ICFMR services and thus fall under this provision.27
The parties do not entirely agree, however, on how we should interpret § 1396n(c)(2)(C). (Compare Post-Hr'g Resp. at 13-16 with Post-Hr'g Reply at 10-13.) We rely on the plain text of the statute and its regulations. See, e.g., Krzalic v. Republic Title Co., 314 F.3d 875, 879-80 (7th Cir. 2002) ("Usually when a statutory provision is clear on its face the court stops there, in order to preserve language as an effective medium of communication from legislatures to courts."); Boulet v. Cellucci, 107 F. Supp. 2d 61, 76 (D. Mass. 2000) (relying on "traditional statutory analysis" to interpret § 1396n(c)(2)(C)). On its face-and as is consistent with the purpose underlying waiver programs-§ 1396n(c)(2)(C) requires states to inform covered individuals about any options available under the HCBS Waiver Program (i.e., feasible home or communitybased alternatives) and allow individuals to choose a waiver option as opposed to institutionalization. 42 U.S.C. § 1396n(c)(2)(C). The interpreting regulations comport with this reading and expressly provide that covered individuals or their representatives must be both: "(1) Informed of any feasible alternatives available under the waiver; and (2) Given the choice of either institutional or home and community-based services." 42 C.F.R. § 441.302(d); see also id. § 441.303(d).
Circuit courts have agreed with this straightforward interpretation. The Ninth Circuit in Ball, for example, explained that § 1396n(c)(2)(C) grants individuals "two explicitly identified rights-(a) the right to be informed of alternatives to traditional, long-term institutional care, and (b) the right to choose among those alternatives." 492 F.3d at 1107; Doe v. Kidd, 501 F.3d 348, 359 (4th Cir. 2007) (commenting that "the only choice referred to . . . is a choice between institutional or home-based and community-based services as a part of the waiver program"). Section 1396n(c)(2)(C) thus requires Defendants to inform Plaintiffs about any feasible alternatives under the HCBS Waiver Program for each Murray resident and then-if waiver options are available-give guardians a choice between the two types of settings. See Bertrand ex rel. Bertrand v. Maram, 495 F.3d 452, 459 (7th Cir. 2007) (explaining that this subsection does not mandate the state to offer any particular option but "just requires the provision of information about options that are available"); Grant ex rel. Family Eldercare v. Gilbert, 324 F.3d 383, 388 (5th Cir. 2003) ("[A]t most, the plain language of § 1396n(c)(2)(C) affords a right of information only for waiver applicants.").
According to Plaintiffs, Defendants' insistence that they consider and accept CILA placements, via the ACCT process, deprives them of choice as between institutional and community options under § 1396n(c)(2)(C). (Post-Hr'g Mem. at 16-19; Post-Hr'g Reply at 11-14.) As a threshold matter, we are not convinced that Plaintiffs' theory falls under § 1396n(c)(2)(C), which protects guardian choice among settings once feasible waiver options are available. Defendants plainly have attempted to engage Plaintiffs and offer them alternative placements under the HCBS Waiver Program where possible. But the statute seems to presuppose that the individual entitled to information and choice is interested in community options. See Grant, 324 F.3d at 388. As Plaintiffs have rebuffed Defendants' efforts to offer waiver options-and thus preemptively chosen institutional care-it is not clear that the choice provision of § 1396n(c)(2)(C) continues to apply, or to what further choice it should apply.
But in any event, even if we have misconstrued Plaintiffs' theory or the scope of § 1396n(c)(2)(C), Defendants have not deprived Plaintiffs of their "choice of either institutional or home and community-based services" as a practical matter. 42 C.F.R. § 441.302(d). The record establishes that no Murray resident can or will be transferred into a CILA under the HCBS Waiver Program over guardian objection. (Supra Part IV.A.) The record also establishes that Defendants have expressed both a willingness and ability to accommodate families who wish to choose institutional placements, even where counterproductive to the Initiative. (Supra Part IV.B.) Under these circumstances, we cannot hold that Plaintiffs have any likelihood of success on the merits of this § 1396n(c)(2)(C) claim.
20 These statutory discrimination claims are construed identically. Radaszewski v. Maram, 383 F.3d 599, 607 (7th Cir. 2004); Washington v. Indiana High Sch. Ass'n, Inc., 181 F.3d 840, 846 (7th Cir. 1999) (noting that the two statutes are coextensive).
21 The parties do not dispute that Defendants are a public entity, as necessary for an ADA claim, or that they receive federal funding assistance, as necessary for a Rehabilitation Act claim.
22 Defendants assert that they are not legally obligated to offer Murray residents placements at other SODCs but are doing so to allay Plaintiffs' concerns. (Post-Hr'g Resp. at 5.) Given the facts before us, we need not comment on Defendants' position.
23 Plaintiffs have not introduced any evidence that this "recasting" or "reverseengineering"has taken place. The record lacks evidence, for example, that the extent of an SODC resident's disability, or a particular diagnosis, or the assessment of the individual's needs, has been altered inappropriately or intentionally during the ACCT process.
24 Nor does the record suggest that Defendants have acted with any deliberate indifference. See Phipps, 681 F. Supp. 2d at 918 (noting that although intent is not required of all three Title II evidentiary approaches, the intentional approach typically requires a showing of "deliberate indifference," at least where plaintiffs seek compensatory damages); Zachary M. v. Bd. of Educ. of Evanston Twp. High Sch. Dist. No. 22, 829 F. Supp. 2d 649, 662 (N.D. Ill. 2001); Access Living of Metro. Chi. v. Chi. Transit Auth., No. 00 C 770, 2001 WL 492473, at *7 (N.D. Ill. May 9, 2001).
To the contrary, the record reflects non-discriminatory motives for Defendants' decisions. (See supra Part II.B and III.B.1.)
25 Residence in a particular location alone generally cannot be the basis of a Title II or Rehabilitation Act claim. Nelson, 2006 WL 290510, at *5 ("[T]o the extent that plaintiffs allege differential treatment based on . . . geography, their claims must be dismissed."). We assume Plaintiffs refer to SODC residence as a proxy for the extent or severity of resident disabilities.
26 The parties also dispute Defendants' stated rationales for adopting the Initiative and implementing the ACCT process. (Compare Post-Hr'g Mem. at 21-23 and Post-Hr'g Reply at 14-18 with Post-Hr'g Resp. at 18-20.) We need not address these arguments in detail. For the sake of thoroughness, we add merely that the record supports a conclusion that the Initiative is rationally-related to the State's obligations under Olmstead. See Smith v. City of Chi., 457 F.3d 643, 652 (7th Cir. 2006) ("The rational-basis test is a lenient standard" such that "the government's action simply cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose."); see also D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681, 686 (7th Cir. 2013); Srail v. Village of Lisle, Ill., 588 F.3d 940, 946-47 (7th Cir. 2009). We decline to address the State's budgetary argument.
27 We previously held that Plaintiffs have a private right to enforce § 1396n(c)(2)(C)through 42 U.S.C. § 1983. (10/8/13 Op. (Dkt. No. 286) at 18-20 (resolving motion to dismiss).)