Illinois League of Advocates for the Developmental et al v. Illinois Department of Human Services et al

Filing 400

MEMORANDUM Opinion and Order. We deny Plaintiffs' motion for preliminary injunction 8 . We also lift the temporary restraining order previously entered on June 12, 2013 90 . It is so ordered. Signed by the Honorable Marvin E. Aspen on 7/21/2014. Notice mailed by judge's staff (ntf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ILLINOIS LEAGUE OF ADVOCATES
FOR THE DEVELOPMENTALLY,
DISABLED, et al.
Plaintiffs,
v.
ILLINOIS DEPARTMENT OF HUMAN
SERVICES, et al.,
Defendants.

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Case No. 13 C 1300
Judge Marvin E. Aspen

MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Court Judge:
Plaintiffs in this action have challenged Defendants’ decisions to close a state-operated
institution for the developmentally disabled and to assess its residents for potential transfers into
community living arrangements. Plaintiffs contend that this conduct constitutes disability
discrimination in violation of federal law, denies Plaintiffs and the purported class members
equal protection, and deprives them of choice as required by the Medicaid Act.
In early January 2014, a three-day preliminary injunction hearing in this matter was
conducted. The parties have since submitted their post-hearing briefs, as well as their proposed
findings of fact and conclusions of law. For the reasons set forth below, Plaintiffs’ motion for a
preliminary injunction is denied.

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FINDINGS OF FACT1
Pursuant to Federal Rules of Civil Procedure 52(a)(2) and 65, we begin with a recitation
of the facts pertinent to our analysis. Fed. R. Civ. P. 52(a)(2), 65. We rely on the parties’
Stipulation of Facts (Dkt. No. 348), their proposed findings, the witnesses’ written direct
testimony submitted prior to the hearing, the transcripts of hearing testimony, the parties’
exhibits, and, where necessary, our assessment of witness credibility. We also consider the
parties’ pre- and post-hearing briefs (including supplemental materials), and we bear in mind our
prior evidentiary rulings. (See 12/5/13 Op. (Dkt. No. 321) (resolving motions in limine).) In
large part, the critical facts are undisputed.
I.

THE PARTIES AND RESIDENTS OF MURRAY
Plaintiffs include the guardians for several individuals who reside at the Warren

G. Murray Developmental Center (“Murray”). (Stip. ¶ 1.) Murray is a state operated
developmental center (“SODC”), a residential facility that provides housing and a range of
services (known as “ICF-MR” services) to individuals with developmental disabilities,
particularly those with severe and/or behavioral needs. (Id. ¶ 8.) Murray is located in Centralia
and is one of seven SODCs operated by the State of Illinois. (Id. ¶ 9.) As of August 31, 2013,
Murray was home to 233 residents, some of whom have lived there for decades. (Id. ¶ 10; see
also Rule 30(b)(6) Decl. of Rita Winkeler ¶ 21 & Ex. (letters filed under seal) (Dkt. Nos. 239-1,
240).)
Many of the Murray residents are nonverbal and medically fragile. (Winkeler 30(b)(6)
Decl. ¶ 21 & Ex.; see also Decl. of Rita Winkeler ¶¶ 4–5 (Dkt. No. 241-1); 9/22/13 Decl. of
1

We assume familiarity with the extensive procedural background of this case.
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William Henson ¶ 4 (Dkt. No. 241-10); 4/12/13 Decl. of Marsha Holzhauer ¶ 3 (Dkt. No. 241-9);
9/23/13 Decl. of Dr. Karen Kelly ¶¶ 5–6 (Dkt. No. 241-3); Rule 30(b)(6) Decl. of Rita Burke
¶¶ 10–12 (Dkt. No. 314-1); 9/21/13 Decl. of Janice Kerst ¶ 3 (Dkt. No. 241-5); 4/13/13 Decl. of
Denise Schoppet ¶ 2 (Dkt. No. 241-8); 6/23/13 Decl. of Lori Demijan ¶¶ 2–5 (Dkt. No. 241-17).)
As of August 31, 2013, eighty-four percent (84%) of Murray residents had severe or profound
mental retardation range. (Stip. ¶ 10.) Sixty-eight percent (68%) of the residents had a behavior
intervention program, often requiring higher levels of staff supervision. (Id. (internal quotation
omitted).) Some of the specific conditions found in the Murray population include mental
illnesses, self-injurious and aggressive behaviors, elopement tendencies, seizures, autism,
cerebral palsy, and pica disorder, which is characterized by an individual’s efforts to ingest
inedible objects. (Winkeler 30(b)(6) Decl. ¶ 21 & Ex.) These individuals often have the
mentality of infants or toddlers, and they need help with the most basic functions of daily living,
such as eating, toileting, bathing, and dressing. (Winkeler 30(b)(6) Decl. ¶ 21 & Ex.) Many thus
require significant supervision to ensure their health and safety and, generally speaking, are
extremely sensitive to any changes to their routines. (Id.)
In addition to several Murray guardians, the named Plaintiffs include, inter alia, two
organizations: (1) the Murray Parents Association (“MPA”), which keeps guardians informed
about and involved in events and issues concerning Murray; and (2) the Illinois League of
Advocates for the Developmentally Disabled, which seeks to promote the welfare of people with
developmental disabilities in the State of Illinois, particularly those living in residential
placements. (Stip. ¶¶ 2–3; Winkeler 30(b)(6) Decl. ¶ 2; Burke 30(b)(6) Decl. ¶ 1.) Plaintiffs
seek to represent a class comprised of developmentally disabled individuals who, at any time
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since January 1, 2011, currently reside or formerly resided at one of two SODCs—Murray and
Jacksonville Developmental Center (“Jacksonville”)—and who oppose transfer from their SODC
home to a community integrated living arrangement (“CILA”).2 (Compl. ¶¶ 1–4, 42–50, 58.)
Defendants include Michelle R.B. Saddler, the Secretary of the Illinois Department of
Human Services (“DHS”), and Kevin Casey, the Director of the Division of Developmental
Disabilities for DHS (“Division”), both of whom have been sued in their official capacities.
Plaintiffs also sued Community Resource Alliance (“CR Alliance”), an organization owned and
operated by Dr. Michael Mayer. (Stip. ¶¶ 4–6.) Community Resource Associates (“CR
Associates”), owned and operated by Derrick Dufresne, has a contract to provide services for
DHS but is not a party. (Id. ¶ 7.)
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

2

Plaintiffs have not moved for class certification.
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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.)

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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
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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
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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 institutional
settings—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.)
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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

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).)
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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.)
III.

The ACCT Process
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
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.”
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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
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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
1.

Philosophical Underpinnings

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

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).)
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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”).)
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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. 3731); 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
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.)
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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.
2.

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-

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.)
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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
-16-

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.’

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).)
-17-

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

10

Whether this alleged coercion would be unlawful discrimination as argued here is a
separate legal question, which ultimately we need not address.
-18-

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
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).)
-19-

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
-20-

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 interSODCs 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.
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
-21-

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:

-22-

•

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.)
-23-

•

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

-24-

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

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.
-25-

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

-26-

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

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.)
-27-

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

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.)
-28-

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.
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

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.
-29-

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

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.)
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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
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.)
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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

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.
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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.
LEGAL ANALYSIS AND CONCLUSIONS
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
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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.
VI.

LIKELIHOOD OF SUCCESS ON THE MERITS
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
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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

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.
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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.
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.
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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
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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;
-38-

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”
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(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.

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.
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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.

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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
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).
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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

To the contrary, the record reflects non-discriminatory motives for Defendants’ decisions.
(See supra Part II.B and III.B.1.)
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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

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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

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.
-45-

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

-46-

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
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.
-47-

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

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).)
-48-

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
-49-

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
-50-

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.
VII.

IRREPARABLE HARM
Although Plaintiffs have not shown a better than negligible likelihood of success on the

merits of their claims, we continue our analysis of the preliminary injunction motion. We turn to
the irreparable harm element, which resolves “the case where although the ultimate relief that the
plaintiff is seeking is equitable, implying that he has no adequate remedy at law, he can easily
wait till the end of trial to get that relief.”28 Roland Mach. Co., 749 F.2d at 386. In other words,
“[o]nly if [the plaintiff] will suffer irreparable harm in the interim—that is, harm that cannot be
prevented or fully rectified by the final judgment after trial—can he get a preliminary
injunction.” Id.; Girl Scouts of Manitou Council, Inc., 549 F.3d at 1086. Plaintiffs contend that
Murray residents face injury to their health and well-being, both physical and mental, because of
“the predetermined placements which . . . [result] from going through the [ACCT process]” as
well as because of the “lack of meaningful choice” under § 1396n(c)(2)(C). (Post-Hr’g Mem. at
25–26; see also Mem. ISO Prel. Inj. Mot. (Dkt. No. 9) at 20–21.)
Plaintiffs argue that the CILA placements, as predetermined through the ACCT process,
are dangerous. Plaintiffs introduced troubling evidence of problems with certain CILA
28

The parties did not separately address whether Plaintiffs lack an adequate remedy at
law necessitating injunctive relief. Plaintiffs seek only injunctive relief, and we assume for
present purposes that they have met this requirement. See Roland Mach. Co., 749 F.2d at 386.
-51-

placements, causing their concerns about future (though speculative) errors, which could result in
serious harm. (Supra Part V.) For their part, Defendants offered evidence that other former
SODC residents have succeeded in the community and that similar problems arise at Murray as
well. (Id.) While we are sympathetic to Plaintiffs’ fears, and do not condone the mistakes made
at certain CILAs, the record before us does not establish any level of likelihood that SODC
residents “will suffer” irreparable harm in the absence of an injunction. See Winter v. Natural
Res. Defense Council, Inc., 555 U.S. 7, 22, 129 S. Ct. 365, 375–76 (2008) (clarifying that the
plaintiff must show “that irreparable harm is likely in the absence of an injunction,” not just
possible); East St. Louis Laborers’ Local 100 v. Bellon Wrecking & Salvage Co., 414 F.3d 700,
704 (7th Cir. 2005) (“Speculative injuries do not justify this extraordinary remedy.”).
Even if we accept Plaintiffs’ assertion that residents transferred into CILAs are likely to
suffer irreparable harm, such harms would not occur as a result of the much-maligned ACCT
process. Neither Defendants, nor the ACCT process, require guardians to choose a CILA
placement. Accordingly, granting an injunction to curtail the ACCT process during the pendency
of this action, as Plaintiffs suggest, would not give Plaintiffs any relief or authority that they do
not already possess.
Yet Plaintiffs also contend that the ACCT “process itself presents an irreparable harm.”
(Post-Hr’g Mem. at 25.) Plaintiffs have not introduced any evidence whatsoever that the ACCT
process itself inflicts irreparable harm. Kelly testified that her son “might be upset” if required to
meet strangers during the ACCT process. (1/7/14 Hr’g Tr. (Kelly) at 250.) While Kelly’s
concern is understandable, this evidence hardly establishes that either Murray residents or their
guardians will suffer harm, let alone irreparable harm, simply by participating in the ACCT
-52-

process. Plaintiffs’ criticisms of Defendants’ reliance on CRA staff and the Murray ISPs
similarly do not reveal harm, irreparable or otherwise. (See Supra Part III.B.2.) Plaintiffs may
feel that the ACCT process is a waste of their time and taxpayer money, but we cannot find that it
causes irreparable harm.
VIII. BALANCING OF INTERESTS
At this point, we conclude that Plaintiffs’ claims have not survived the threshold phase of
the preliminary junction analysis. Having determined that Plaintiffs have failed to show either a
likelihood of success on the merits or irreparable harm, we must deny the requested injunction.
Girl Scouts of Manitou Council, Inc., 549 F.3d at 1086; Daveri Dev. Group, LLC, 934 F. Supp.
2d at 995. We briefly consider the balancing phase, should an appeal follow. Girl Scouts of
Manitou Council, Inc., 549 F.3d at 1087.
Utilizing a sliding scale approach, we balance the irreparable harm that Plaintiffs will
suffer if relief is denied against the irreparable harm that Defendants will suffer if relief is
granted. See Long, 167 F. Supp. 2d at 990 (internal quotations omitted); Planned Parenthood of
Ind., 699 F.3d at 972. We also factor in the public interest in the outcome of the motion. Long,
167 F. Supp. 2d at 990; Planned Parenthood of Ind., 699 F.3d at 972. The purpose of this
second phase is to “minimize the cost of potential error.” Girl Scouts of Manitou Council, 549
F.3d at 1086.
As discussed above, Plaintiffs have not established that they will suffer irreparable injury
without an injunction. Defendants, on the other hand, argue that an injunction would
“impermissibly interfere with the State’s right to administer its budget and make policy
decisions.” (Post-Hr’g Resp. at 23.) They further argue that an injunction would exacerbate the
-53-

financial burden on taxpayers and impede the Initiative. (Id.) While Defendants contend that
this balance of harms tips in their favor, they do not claim to face irreparable harm should an
injunction issue. (Post-Hr’g Resp. at 23–25.) Thus, neither party faces irreparable harm from
our ruling. A preliminary injunction is an extraordinary remedy, Roland Mach. Co., 749 F.2d at
389, and is not warranted under such circumstances. See also Daveri Dev. Group, LLC, 934 F.
Supp. 2d at 995 (noting that a “preliminary injunction is an extraordinary and drastic remedy, one
that should not be granted unless the movant, by a clear showing, carries the burden of
persuasion”).
Before concluding, we recognize the public interest in this action, as well as the parties’
interests. As we have previously stated, this case has important ramifications for both sides, as
well as the citizens of Illinois. Plaintiffs are confronted with a most unwelcome development in
Murray’s expected closure. They have legitimate worries about the placements, transitions, and
future care of their loved ones.29 Meanwhile, Defendants seek to improve efficiency by serving
more citizens, to effectuate public policy favoring the integration of the disabled when feasible,
and to potentially improve the state budget. The employees of Murray, residents of Centralia,
and service providers for Murray residents naturally have their own concerns and interests. And
the taxpayers across Illinois are invested in this litigation as well, both as contributors to the State
budget and as citizens concerned about the care of the State’s disabled population. Some of

29

Plaintiffs assert that CILA residents—and their neighbors—are threatened by illadvised CILA placements. (Post-Hr’g Mem. at 26–27.) Plaintiffs did not identify evidence
supporting their claim that the alleged danger to CILA residents extends to their neighbors, and
we are not inclined to adopt their conclusion without more. (See id. at 27 (focusing on threats to
the developmentally disabled, not their neighbors).)
-54-

these interests may conflict, some do not, but all are important.
We are not unsympathetic to the real human concerns raised by Plaintiffs in their diligent
and highly professional advocacy as guardians, on behalf of their loved ones as well as other
families facing this predicament. We recognize that Murray’s closure may cause distress and
disruption for Plaintiffs, their wards, and their families. In the end, however, we cannot grant
them legal relief on the record before us, which does not permit us to conclude that Plaintiffs’
interests outweigh Defendants’ interests, particularly given Plaintiffs’ lack of likelihood of
success on the merits and lack of irreparable harm. See Planned Parenthood of Ind., 699 F.3d at
972 (“The strength of the moving party’s likelihood of success on the merits affects the balance
of harms.”); Girl Scouts of Manitou Council, Inc., 549 F.3d at 1086.
CONCLUSION
For the reasons detailed above, we deny Plaintiffs’ motion for preliminary injunction
(Dkt. No. 8). We also lift the temporary restraining order previously entered on June 12, 2013
(Dkt. No. 90).30 It is so ordered.

________________________________
Honorable Marvin E. Aspen
U.S. District Court Judge

Dated: July 21, 2014

30

As suggested earlier, Defendants should consider clarifying for Murray families 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 to
obtain individualized assessment and future placement outside the ACCT process.
-55-