Generations Health Care Network et al v. Norwood

Filing 106

ORDER signed by the Honorable Sheila M. Finnegan on 10/12/2021: Plaintiffs' motion to compel full and complete responses to Interrogatories 4, 5, 7, 9, and 10, and Requests for Production 2, 3, 4, and 30 88 is granted in part and denied in pa rt as follows. As to the Interrogatories, the motion is: granted in part as to Interrogatories 4, 5, and 7; and denied as to Interrogatories 9 and 10. As for the Requests for Production, the motion is: granted in part as to Requests 2 and 3; and deni ed as to Requests 4 and 30. Defendant is to produce any documents responsive to Requests 2 and 3 by 10/26/2021. A telephone status hearing is set on 11/2/2021 at 11:00 a.m. The toll-free number for the next hearing is 877-336-1831, access code 5995354. Persons granted remote access to proceedings are reminded of the prohibition against recording and rebroadcasting of court proceedings. See Order for further details. Mailed notice (sxw)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GENERATIONS HEALTH CARE
NETWORK, LLC, et al.,

)
)
)
Plaintiffs, )
)
v.
)
)
THERESA EAGLESON, in her official )
capacity as the Director of the Illinois )
Department of Healthcare and Family )
Services,
)
Defendant. )

No. 18 C 267
Judge Franklin U. Valderrama
Magistrate Judge Finnegan

ORDER
Plaintiffs Generations Health Care Network, LLC, Carlyle Healthcare Center, Inc.,
St. Vincent’s Home, Inc., Clinton Manor Living Center, Inc., and Extended Care Clinical
LLC move to compel full and complete responses to Interrogatories 4, 5, 7, 9, and 10,
and Requests for Production 2, 3, 4, and 30. (Docs. 88, 89, 93). 1 Defendant Theresa
Eagleson, in her official capacity as the Director of the Illinois Department of Healthcare
and Family Services (“Department”), opposes the motion. (Doc. 91). For the reasons
stated here, the motion is granted in part and denied in part.
BACKGROUND
I.

Allegations

Plaintiffs own or operate skilled and long-term care nursing facilities throughout
Illinois. They allege that Defendant violated federal law by failing to comply with the
Medicaid Act’s public notice requirements. (Doc. 47). More specifically, Plaintiffs allege
that: under 42 U.S.C. § 1396a(a)(13)(A), the State of Illinois must provide a public process
for determination of rates of payment under the state plan; and under 42 C.F.R. §
447.205(a), the State of Illinois must provide public notice of any significant proposed
change in the methods and standards for setting payment rates for Medicaid services.
They allege (sometimes “on information and belief”) that this did not happen in respect to
a 1994 “rate freeze” and subsequent regulations modifying it, as reflected in Sections
153.100, 153.125, and 153.126 of the Illinois Administrative Code (“Code”).
As the district judge (then Judge Gottschall) observed in ruling on a motion to
dismiss the First Amended Complaint, Plaintiffs have “characterize[d] this case as an
1

Heritage Operations Group, LLC withdrew as a plaintiff on July 9, 2021. (Doc. 100).

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effort ‘to require[] Defendant to comply with the Federal Medicaid Act and provide the
notice as required by the Federal Medicaid Act.’” (Doc. 25, at 5). As explained in that
opinion, Plaintiffs cannot obtain any monetary relief in this lawsuit since “[t]he sovereign
immunity protected by the Eleventh Amendment extends to suits against a state official
in his or her official capacity for money damages because ‘a judgment against a public
servant ‘in his official capacity’ imposes liability on the entity that he represents.’” (Id. at
4) (quoting Kentucky v. Graham, 473 U.S. 159, 169 (1985) (quoting Brandon v. Holt, 469
U.S. 464, 471 (1985)). Nor can Plaintiffs sue “to force state officials to conform their
conduct to state law.” (Id. at 4-5) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89 (1984)).
But under ‘“[t]he exception recognized in Ex parte Young, 209 U.S. 123, 159–60
(1908) … the Eleventh Amendment does not bar suits against state officials seeking
prospective equitable relief.” (Id. at 4). “To decide whether the Young exception applies,
the court ‘need only conduct a straightforward inquiry into whether the complaint alleges
an ongoing violation of federal law and seeks relief properly characterized as
prospective.’” (Id. at 5) (citation omitted). Applying that inquiry to a case in which nursing
facilities sought to enforce Section 1396a(a)(13)(A)’s requirement for a public process in
rate setting, the Seventh Circuit held that the Eleventh Amendment “did not bar the
plaintiffs’ claims to the extent they, ‘now and in the future [sought] to provide the required
public process in setting rates.’” (Id. at 8) (quoting BT Bourbonnais Care, LLC v.
Norwood, 866 F.3d 815, 823 (7th Cir. 2017)). For that reason, Judge Gottschall allowed
some portions of the lawsuit to proceed.
On October 28, 2019, the newly-assigned district judge (Judge Seeger) entered
the following order:
Counsel agreed that the case would likely turn on a purely
legal question. Defendant’s counsel represented that it has
propounded interrogatories asking Plaintiff to specify the
regulatory provisions at issue. On its own motion, the Court
directs Plaintiff to identify which specific regulatory provisions
it claims Defendant violated and to amend the complaint to
reflect this information by November 25, 2019. The Court
directs counsel to meet and confer to narrow the range of
disputed issues and to identify with specificity the outstanding
factual issues left for discovery.
(Doc. 42). 2 Following this, on November 25, 2019, Plaintiffs filed the operative Second
Amended Complaint. (Doc. 47).

2

On September 28, 2020, the case was reassigned to Judge Valderrama. (Doc. 81).
2

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II.

Discovery 3

In July 2019 (before filing the more focused Second Amended Complaint),
Plaintiffs issued extremely broad written discovery in the form of interrogatories and
requests for production, most with no time limitations. (Docs. 48-1, 48-2). After reviewing
a vague two-page joint status report dated November 15, 2019, this Court directed the
parties to file a supplemental report that identified with specificity the disputed factual
issues in the case. They did so in separate supplemental status reports on November
25, 2019 (Docs. 48, 49) that are summarized below.
Additionally, the parties provided helpful background regarding Plaintiffs’ claims at
a subsequent status hearing, indicating that in 1994 there was a Medicaid rate freeze for
Illinois nursing homes, and since then there have been changes and modifications. The
freeze and subsequent changes are reflected in two places: the Code; and the State Plan
Amendments (also known as SPAs). The SPAs are submitted for approval to the federal
agency known as CMS (Centers for Medicare & Medicaid Services). In this lawsuit,
Plaintiffs claim that Defendant did not submit the rate freeze and amendments to CMS
for approval. Plaintiffs also claim that Defendant did not comply with the public notice
requirements, either because notice was not timely or based on the content of the notice.
A.

Factual Disputes

In Defendant’s November 15, 2019 status report, counsel opined that minimal
discovery was necessary on Plaintiffs’ claims, which could be grouped into four general
categories (listed below as items 1 through 4). (Doc. 49). Plaintiffs’ status report was
organized differently and noted that the recently-filed Second Amended Complaint
“identif[ied] with more specificity which provisions Plaintiffs allege Defendants [sic] have
propounded without the notice required by federal law.” (Doc. 48). Plaintiffs’ status report
also identified specific factual disputes and the discovery sought to resolve the disputes.
For convenience, these disputes are described in bullet points directly below the
categories of claims outlined by Defendant.
1) Illinois Administrative Code: Publication of Methodologies
Defendant allegedly failed to publish justifications and methodologies for rate
change amendments to Sections 153.100, 153.125, and 153.126 of the Code.
(Doc. 49, at 1).
•

The parties anticipate that the issue of whether justifications and
methodologies are required under federal law will be a legal issue, however
the factual question of whether Defendant published any justifications
and/or methodologies is disputed so discovery is sought on this issue.
(Doc. 48, at 3).

Given the passage of time and the turnover of lawyers representing Plaintiffs (Docs. 82,
84, 85, 95, 96, 101-04), this Order provides a more detailed history of discovery than would
ordinarily be necessary.
3

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2) Illinois Administrative Code: Timing of Notices
On multiple occasions, Defendant allegedly failed to provide published notice of a
proposed rate prior to the effective date of the new rate. (Doc. 49, at 2). Plaintiffs’
Second Amended Complaint identifies specific subparts of Sections 153.100,
153.125, and 153.126 of the Code, and alleges dates on which notices relating to
these subparts were published in the Illinois Register. (Id.).
•

Plaintiffs seek discovery regarding the publication of notice prior to the
effective dates: the dates of website publication of notice; and the reliability
and accuracy of Defendant’s website archive (indicating whether Defendant
published notice on the website and the date it did so). (Doc. 48, at 2). The
parties dispute the dates of physical publication of notice of amendments to
Sections 153.100, 153.125, and 153.126 of the Code. (Id. at 3). Also,
Plaintiffs seek discovery regarding the third-party periodicals used by
Defendant for publication, if any. (Id. at 3-4).

3) State Plan Amendments: Submission to CMS
On information and belief, Defendant never submitted the 1994 “rate freeze” and
Code Sections 153.125 and 153.126 to CMS for approval as SPAs. (Doc. 49, at
2).
4) State Plan Amendments: Retroactivity
Defendant allegedly has submitted requests for approval by CMS of certain
amendments which affect Medicaid reimbursement rates to long-term care
facilities subsequent to the effective date of said amendments. (Doc. 49, at 2).
The parties agree that this claim presents a purely legal issue. (Id.). Also,
Defendant allegedly did not publish notice of proposed plan amendments
submitted to CMS on November 24, 2009 or April 8, 2015. (Id. at 3).
•

Plaintiffs seek discovery as to Defendant’s public notice process for SPAs.
(Doc. 48, at 5). The parties dispute whether Defendant published timely
notice of proposed amendments to the Illinois State Plan, and Plaintiffs
allege Defendant did not publish any notice of certain amendments to the
Illinois State Plan. (Id.).

B. Defendant’s Search for and Production of Documents
Defense counsel expressed the view during a December 9, 2019 hearing that—as
to the allegations that Defendant had not gotten approval from CMS—little discovery
would be necessary since Defendant would either provide the approval or indicate that
approval was not required. Similarly, with regard to allegations that Defendant had not
timely provided notice, counsel anticipated that documentation of notice would be
provided to Plaintiffs, whether it occurred through publication in the Illinois Register, in a
newspaper, or on Defendant’s website. At a later hearing, defense counsel indicated that
documentation was currently being pulled to answer the following questions: Did
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Defendant get CMS approval? Did Defendant issue public notice? And if so, when was
the notice issued, and what did it look like?
But defense counsel also claimed the process of identifying and producing the
documents was somewhat complicated because the rate freeze amendments in the Code
have 56 different subparts enacted at various times from 1994 to the present. As an initial
step to gathering documents, Defendant was reportedly required to take each of those
subparts and map it to a corresponding State Plan Amendment. Based on this, Defendant
determined that there are approximately 26 SPAs that appear to be relevant here.
Defendant reportedly submitted an approval package to CMS each time it sought
approval for the rate freeze amendments. These packages include a cover letter from
CMS and other paperwork. As of December 9, 2019, Defendant already had pulled
approval packages for all 26 SPAs so they could be reviewed by counsel and then
produced to Plaintiffs.
As for documents related to the notices, defense counsel claimed these were not
as easily compiled since the notice was not always kept as part of the files. He also said
the notices could appear in a newspaper, on Defendant’s website, or in the Illinois
Register. By the time of the next status hearing (on December 19, 2019), Defendant
reportedly had located eight public notices for certain plan amendments, and believed
notice had been given as to all amendments since CMS would not have granted federal
approval otherwise. Defense counsel said he expected to make a further production of
documents within one month.
During the January 23, 2020 status hearing, defense counsel reported that he had
produced the documents identified during the previous hearing, and Plaintiffs’ counsel
confirmed receipt, noting that these were responsive to two of the requests for production.
C. Parties’ Agreement on Supplemental Written Discovery
Plaintiffs’ counsel noted during the January 23, 2020 hearing that she was still
waiting for the rest of discovery to be produced on a rolling basis. Defense counsel
responded that the requests for production (issued before the filing of the more specific
Second Amended Complaint) were overbroad, and that was why the parties had turned
to the process of producing the specific documents outlined during the prior hearings.
Defense counsel requested that Plaintiffs’ counsel review the recently-produced materials
and if these were still deemed insufficient, then indicate what other materials Plaintiffs
were expecting. The Court directed Plaintiffs to finish their review of the documents
produced by Defendant, and then confer concerning the need for any additional
documents to be identified with specificity.
During the March 13, 2020 status hearing, defense counsel reported making three
supplemental productions since the last hearing and said Defendant was continuing to
search for additional documents focusing on publication of notice of specific amendments
to Sections 153.100, 153.125, and 153.126 of the Code identified both in the Second
Amended Complaint and in communications with counsel. Defense counsel also said he
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was working on some loose ends in terms of discovery, and felt there might be one more
wave of documents produced within a month. He added, however, that Defendant was
close to exhausting the search efforts so it was unlikely that further documents would be
located given the long passage of time. But Plaintiffs had given Defendant a list of specific
outstanding discovery items, and discussions were ongoing regarding the website notice
issue.
Also during the March 13, 2020 status hearing, Plaintiffs again raised the issue
that Defendant had not yet responded to all of their original requests for production, and
instead was producing documents to supplement Defendant’s initial disclosures.
Defendant represented that the produced documents were both supplemental
disclosures as well as responsive to certain of Plaintiffs’ requests for production identified
by counsel. After acknowledging that Plaintiffs’ discovery requests had been drafted
before the filing of the Second Amended Complaint, counsel offered to amend the
requests to be much more specific and to reflect that complaint. Ultimately, the parties
informed the Court in their September 11, 2020 joint status report (Doc. 79) that they had
conferred and agreed that Defendant would provide written responses only to Plaintiffs’
existing Interrogatories 4, 5, 7, 9, and 10 and Requests for Production 2, 3, 4, and 30,
and this would be done by October 9, 2020. 4
Defendant provided those responses. (Doc. 89-1). After unsuccessful efforts to
resolve disputes over alleged deficiencies in the responses, Plaintiffs filed the pending
motion to compel.
DISCUSSION
Plaintiffs’ motion to compel seeks full and complete responses to Interrogatories
4, 5, 7, 9, and 10, and Requests for Production 2, 3, 4, and 30. (Doc. 87).
A.

Standard

As an initial matter, the motion argues that this Court should construe the Federal
Rules of Civil Procedure (“Rules”) “‘broadly to encompass any matter that bears on, or
that reasonably could lead to other matters that could bear on, any issue that is or may
be in the case.’” (Doc. 89, at 6) (citations omitted). This ignores the December 2015
amendments to the Rules, specifically the deletion of the following language from Rule
26(b)(1): “Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” According to the
2015 Committee Notes, this deletion was designed to curtail reliance on the “reasonably

In the interim, as noted in the joint status reports on May 18, 2020 and July 17, 2020
(Docs. 73, 77), the parties continued to confer about disputes, and Defendant produced more
documents; however, both sides sought extensions due to delays stemming from the Governor’s
Stay at Home Order and the COVID-19 Emergency Response which led to the Department being
“inundated with urgent COVID-19 matters.” (Doc. 73, at 1-2).
4

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calculated” phrase to expand discovery beyond the permitted scope. 5 Relying on cases
interpreting that now-deleted language, Plaintiffs argue that “[u]nder this standard, the
Rules envision and require open, far-reaching discovery.” (Id.).
As Plaintiffs later acknowledge, however, amended Rule 26(b)(1) provides that
“[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case” considering a number
of factors: (1) the importance of the issues at stake in the action; (2) the amount in
controversy; (3) the parties’ relative access to relevant information; (4) the parties’
resources; (5) the importance of the discovery in resolving the issues; and (6) whether
the burden or expense of the proposed discovery outweighs its likely benefit. FED. R. CIV.
P. 26(b)(1) (emphasis added). This is the standard that will be applied here.
B.

Interrogatories

Interrogatories 4, 5, and 7 seek “the identification of each person responsible for
determining” certain information in relation to “the proposed Sections 153.100, 153.125,
and 153.126 of Title 89 of the Illinois Administrative Code and all proposed amendments
to those sections[,]” namely:
•
•
•

the date and content of each SPA, and submission of the SPA to CMS for
approval (Interrogatory 4);
the date and content of the public notice, and method of publication
(Interrogatory 5); and
the coding and web publication of the public notice (Interrogatory 7).

(Doc. 89-1, at 3, 4, 6).

5

The Committee Notes state:
The former provision for discovery of relevant but inadmissible
information that appears “reasonably calculated to lead to the
discovery of admissible evidence” is also deleted. The phrase has
been used by some, incorrectly, to define the scope of discovery.
As the Committee Note to the 2000 amendments observed, use of
the “reasonably calculated” phrase to define the scope of discovery
“might swallow any other limitation on the scope of discovery.” The
2000 amendments sought to prevent such misuse by adding the
word “Relevant” at the beginning of the sentence, making clear that
“‘relevant’ means within the scope of discovery as defined in this
subdivision . . . .” The “reasonably calculated” phrase has continued
to create problems, however, and is removed by these
amendments. It is replaced by the direct statement that “Information
within this scope of discovery need not be admissible in evidence
to be discoverable.” Discovery of nonprivileged information not
admissible in evidence remains available so long as it is otherwise
within the scope of discovery.
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Defendant provided lengthy, specific, and in this Court’s view, well founded
objections. For example, Defendant’s response to Interrogatory 4 states:
Defendant objects to this interrogatory as confusing and
misleading to the extent that it conflates the State Plan
Amendment process under the Medicaid Act and related
regulations with the separate and distinct rulemaking process
for Illinois Administrative Code provisions.
The Centers for Medicaid and Medicare Services (CMS),
which is part of the federal Department of Health and Human
Services, reviews and approves State Plan Amendments, not
provisions of the Illinois Administrative Code.
To the extent that this interrogatory seeks information
regarding the state Plan Amendments corresponding to
sections 153.100, 153.125, and 153.126 of Title 89 of the
Illinois Administrative Code, defendant further objects that this
request is not relevant to Plaintiffs’ claims, overly broad,
unduly burdensome, and not proportional to the needs of this
case.
First, the names of the specific individuals who determined the
“date, content of each State Plan Amendment, and
submission of the State Plan Amendment to CMS for
approval” are neither necessary nor relevant to determining
whether CMS approved a particular State Plan Amendment.
When CMS approves a particular State Plan Amendment, it
provides an approval letter to the Department, and Defendant
has produced these letters as part of this litigation.
Second, the request is overly broad, unduly burdensome, and
not proportional to the needs of this case because Plaintiffs’
claims appear to relate to dozens of State Plan Amendments,
corresponding to at least 56 subparts of the Illinois
Administrative Code, enacted at various times from 1994 to
the present, a period of more than 25 years, making it
essentially impossible to determine the names sought.
Subject to and without waving these objections, see
Defendant’s document productions (Bates D00001-233),
which include the CMS approval packages for the State Plan
Amendments at issue, including correspondence with the
Department that indicates the names of Department staff
handling the submission to CMS.

8

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For example, the documents produced by Defendant as
D00001-00006 include a letter from the Department to CMS
enclosing a proposed State Plan Amendment and identifying
by name the person at the Department to be contacted for any
questions (in this instance, “Sharon Woods”), as well as the
response transmittal from CMS approving the State Plan
Amendment.
(Id. at 3-4).
Defendant made similar (but not identical) objections to Interrogatories 5 and 7.
Defendant objected to Interrogatories 5 and 7 on the additional ground of lack of
relevancy, noting that the public notice requirements for provisions of the Code, including
Sections 153.100, 153.125, and 153.126, are a matter of state law under the Illinois
Administrative Procedure Act. Subject to and without waiving her objections, Defendant
responded to Interrogatory 5 as follows:
. . . Defendant responds that state rulemakings are published
in the Illinois Register, which is available at
https://www.cyberdriveillinois.com/departments/index/registe
r/home.html. In particular, the notices for Sections 153.100,
153.125, and 153.126 of Title 89 of the Illinois Administrative
Code were published in the Illinois Register and are publicly
available at this webpage. By way of example, the notice for
a 2012 amendment to Section 153.100 of Title 89 of the Illinois
Administrative Code appears in the June 12, 2012 Illinois
Register, 36 Ill. Reg. 8128, and includes among other things
the name of the Department’s General Counsel at the time as
the person to whom comments, data, views, or arguments
concerning the rulemaking could be submitted.
(Id. at 6).
As for Interrogatory 7, Defendant declined to answer. After objecting on
overbreadth grounds to providing the names of persons responsible for the “coding and
web publication” of notice for any SPAs corresponding to Sections 153.100, 153.125, and
153.126 of the Code over a 25 year period, Defendant observed: “ . . . in many instances
notice was provided in newspapers rather than (or in addition to) to via the Department’s
webpage. Additionally, to the extent that Defendant has produced a newspaper notice of
a State Plan Amendment, this request relating to web notice is not relevant to plaintiffs’
claims.” (Id. at 7).
In their motion to compel, Plaintiffs say they seek the information requested in
Interrogatories 4, 5, and 7 (as well as that sought in Interrogatory 9, as discussed below)
“to further clarify and focus [their] claims more precisely, [and] it is highly relevant that
Defendant’s staff responsible for the above activities be identified for potential deposition.”
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(Doc. 89, at 7). Plaintiffs also question how it could be burdensome to provide this
information since doing so merely requires “counsel to go to the human
resources/personnel department, ask for job descriptions with the above-listed
responsibilities, and match those responsibilities with a list of current and former
employees who have/had experience and knowledge of the state’s activities at the
relevant times.” (Id. at 3).
In response, Defendant stands by her objections but also observes that Plaintiffs’
description of how defense counsel should gather the information “suggests a potential
compromise.” (Doc. 91, at 10). Defendant states that if Plaintiffs ask only that Defendant
obtain job descriptions and match the responsibilities to current and former employees
(as opposed to each of the 56 subparts of the Code provisions at issue), Defendant will
agree to make reasonable efforts to determine the names of persons whose job
responsibilities over the past approximately ten years (from 2010 to present) involved (a)
providing public notice and (b) obtaining CMS approval for the SPAs corresponding to
Sections 153.100, 153.125, and 153.126 of the Code. (Id.). Defendant said she could
not guarantee that the information would be located but was willing to make reasonable
efforts to find such names. (Id.).
Defendant’s proposed compromise is reasonable under the circumstances here,
so the Court adopts it and grants the motion to compel as to this additional information.
The motion is otherwise denied as to Interrogatories 4, 5, and 7.
Interrogatory 9 asks Defendant to: describe the Department’s public notice
process for promulgating amendments to the Code, including but not limited to SPAs;
identify each Department employee or representative responsible for each part of the
process; and if the plan has changed since implementation of Section 153.100, describe
each public notice process for promulgating amendments to the Code. (Doc. 89-1, at 7).
The Court agrees with Defendant that the response to this interrogatory is
sufficient. It describes the public notice process, and identifies Mary Doran, the Chief of
the Department’s Bureau of Program and Policy Coordination, as the employee with
knowledge of the process. (Id. at 8-9). 6 According to Defendant’s disclosures, Ms. Doran
After asserting objections similar to those for Interrogatories 4, 5, and 7, Defendant
responded:

6

. . . To the extent that the interrogatory seeks information regarding
the Department’s process for submitting proposed State Plan
Amendments to CMS, Defendant responds as follows: Updates to
the Department’s state plan are made via a State Plan Amendment
(SPA). A SPA must be submitted to federal CMS for their approval.
The submission of a SPA normally includes revised pages, a
transmittal form, standard funding questions, proof of public notice
required under 42 CFR 447.205, and proof of tribal notification.
CMS will not approve a SPA if there is no proof of public notice or
tribal notification. Once CMS receives the submittal, they have 90
days to approve, deny or request additional information (RAI). If a
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has knowledge regarding the public notice requirements for SPAs and the Department’s
past and present compliance with those requirements, including the Department’s past
and present policies, practices, and procedures relating to public notice for SPAs, and
CMS approval of the amendments. (Id.). To the extent Plaintiffs later depose Ms. Doran
and she is unable to provide necessary information, Plaintiffs may ask the Court to order
additional discovery. If they do so, Plaintiffs must identify the specific information that is
sought from Ms. Doran (or others) and explain why that information is relevant and
proportional here. The motion to compel is denied as to Interrogatory 9.
Interrogatory 10 asks, for each person who Defendant believes has knowledge
of any of the facts underlying Plaintiffs’ claims, to provide: (a) full name, last known home
and business address and telephone number, and relationship to Plaintiffs; (b) current
employer and position; (c) the facts and information which Defendant believes to be the
substance of his or her knowledge and the source of such knowledge; and (d) the identity
of any documents which relate to the person’s information or knowledge, including any
written statements. (Id. at 9).
Defendant did not object to this interrogatory but instead referred Plaintiffs to the
Rule 26(a)(1) disclosures and any supplements, and said “Investigation continues.” (Id.).
In the motion to compel, Plaintiffs say “it is unknown whether any more state
representatives will be identified.” (Doc. 89, at 4). In response, Defendant states she will
comply with the duty to seasonably update Rule 26(a)(1) disclosures, has identified
several additional persons with knowledge, and will supplement within fourteen days.
(Doc. 91, at 11).
The motion to compel is denied as moot. The Court assumes Defendant has
supplemented by now, and at the next status hearing, the Court will ask the parties to
propose a future date by which the parties’ disclosures will again be supplemented.

Request for Additional Information (RAI) is requested, the state has
90 days to respond. Once the response to the RAI is submitted to
CMS, they, again, have 90 days to approve or deny.
The Department’s position responsible for submitting State Plan
Amendments to CMS is presently vacant; thus no name can be
provided at this time. However, Mary Doran, the Department’s
Bureau Chief, Bureau of Program and Policy Coordination, has
knowledge regarding the public notice requirements for State Plan
Amendments and the Department’s past and present compliance
with those requirements, including the Department’s past and
present policies, practices, and procedures relating to public notice
for State Plan Amendments. Ms. Doran also has knowledge
regarding CMS approval of State Plan Amendments.
(Doc. 89-1, at 8-9).
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C.

Requests for Production

Request 2 asks for a copy of each document retention policy in effect for the
Department or the State of Illinois at any time between 2005 and the present. While
Defendant objected to this request as overbroad since it asks for production of all
document retention policies for the “State of Illinois” rather than simply the Department,
Defendant agreed to search for and produce Department policies in effect since 2005 that
can be located after a reasonable search. Plaintiffs are satisfied with this response but
ask that the Court set a specific deadline by which Defendant must complete a reasonable
search and produce responsive documents. The Court grants this request. To the extent
Defendant has not yet completed the search and produced responsive documents, she
shall do so by October 26, 2021. 7
Requests 3 and 4 ask for all memoranda, policies, and communications (a)
regarding publishing of public notice or notice and comment periods for Long Term Care
or Nursing Home per diem reimbursement rate changes and (b) discussing whether a
Long Term Care or Nursing Home per diem reimbursement rate change requires prior
notice or a notice and comment period, respectively.
These requests are best considered together since the parties do so in their
briefing. In the motion to compel, Plaintiffs observe that Requests 3 and 4 are “simple
and highly relevant, and seek any and all memorandae, directives, policies and
communications that touch on the Federal requirements, 42 U.S.C. §§
1396a(a)(13)(A);1396a(a)(30)A, and associated federal regulations, and as required by
5 ILCS 160 et seq., preserving state records.” (Doc. 89, at 9). They say “[t]he intent of
these Requests is to produce any and all documents that reflect Defendant’s awareness
of and compliance or non-compliance with the notice and comment requirements of the
Federal Medicaid statute and regulations” and such documents are “highly relevant” since
they “will demonstrate if Defendant is even aware of the above federal statutory and
regulatory requirements, and the intent to comply or not to comply with these
requirements.” (Id. at 9-10).
Defendant disagrees, describing the requests as “overly broad, unduly
burdensome, and irrelevant or not proportional to the needs of this case.” (Doc. 91, at 4).
More specifically, Defendant complains that the requests do not specify any time frame,
or identify any specific “per diem reimbursement rate changes” for which they are seeking
documents. (Id.). Therefore, “[a]s drafted, Plaintiffs’ request could require Defendant to
search for documents relating to unspecified Long Term Care or Nursing Home per diem
reimbursement rate changes going back decades, while Plaintiffs’ claim is limited to
alleged ongoing violations of federal law and to certain subparts of the Illinois
Administrative Code.” (Id.). Defendant further notes that, “to the extent there is factual
dispute between the parties, it is about when and whether the Department published
certain notices (Dkt. No. 48), yet their request goes well beyond this.” (Id.) (emphasis in
As Plaintiffs note, Defendant’s response to the motion mistakenly identifies Request 2 as
being numbered Request 1.
7

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original). And since the district judge [Judge Gottschall] has already dismissed the claim
relating to quarterly rate changes for nursing facilities, any documents on that topic are
“out of bounds[.]” (Id.). Finally, Defendant describes as “bizarre” the argument that these
records are necessary to show whether Defendant is aware of, and intended to comply
with, federal notice requirements:
Of course the Illinois Department of Healthcare and Family
Services, the state agency responsible for providing
healthcare coverage for adults and children who qualify for
Medicaid, is well-aware of the federal Medicaid notice
requirements. Defendant’s answer to Plaintiffs’ complaint,
Dkt. No. 59, confirms as much. In any event, Defendant’s
“state of mind” has no bearing on the claims in this case,
where the issue is whether Defendant is complying with the
federal Medicaid Act, not whether she intends to comply.
Finally, even if Defendant’s intent were relevant (it is not),
Plaintiffs’ broad request for all memoranda, policies, and even
“communications” relating to Long Term Care or Nursing
Home per diem reimbursement rate changes, without any
time period limitation, and without any specificity as to which
rate changes are at issue, is overbroad and not proportional
to the needs of this case.
(Id. at 5). More importantly for purposes of the pending motion, Defendant argues that
the Court should deny it as to Request 3 because she agreed to produce a subset of the
documents sought, namely: “ . . . documents reflecting Department policies or procedures
that are currently in effect and that relate to the Department’s submission of proposed
State Plan Amendments to CMS or its publication of notice for State Plan Amendments.”
(Doc. 89-1, at 13-14).
Plaintiffs’ motion and reply brief do not address Defendant’s objections or argue
that a broader response is appropriate here. Instead, Plaintiffs ask only that the Court
set a deadline for Defendant to complete the search and produce the documents that it
has agreed to produce. The Court grants that request. As with Request 2, Defendant’s
deadline is October 26, 2021. Otherwise, the motion to compel is denied as to Request
3.
As for Request 4, Defendant argues the request “is irrelevant and unduly
burdensome for the same reasons” as Request 3, but also says the motion should be
denied as moot since “Defendant indicated in her responses that she searched for and
did not locate any responsive documents.” (Doc. 91, at 6). Plaintiffs acknowledge this
but complain that “[i]t is unknown to what extent such efforts or reasonable inquiry were
made to identify and produce such documents.” (Doc. 89, at 10). In their view, “[i]t is
almost impossible to imagine that SPAs that were prepared, submitted to CMS, modified
or approved by CMS, and then promulgated as state regulations involved no committee
meetings or other staff meetings, policies, directives, memorandae, e-mail exchanges, or
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other discussions among staff or employees responsible for publishing such notices . . .
.” (Doc. 93, at 5-6). And assuming such documents do not exist, Plaintiffs argue
Defendant must not have complied with “the State Records Act.” (Id. at 6). So they ask
that Defendant be ordered to produce a “log” in relation to this request. (Doc. 89, at 10).
Plaintiffs do not describe the specific information to be included in the log—only that the
log is for “justifications of documents that may have existed at the relevant times, but now
do not exist pursuant to the State Records Act, the above requested document retention
policies, or other legal authority controlling the discard or destruction of such documents.”
(Id.).
Defendant objects to this request for a log, noting that Plaintiffs never asked for a
log prior to filing the motion. (Doc. 91, at 6). In addition, Defendant argues that Plaintiffs
“have not set forth any basis for concluding that documents responsive to [Request 4]
ever existed, much less that such documents existed were [sic] improperly destroyed.”
(Doc. 91, at 6) (emphasis in original).
This Court denies Plaintiffs’ motion to compel as to Request 4, and declines to
require Defendant to provide a log of justifications. Given the wording of Request 4 and
the lack of any time limitation on it, the request is certainly overbroad. It also is not
proportional to the needs of the case since the key issue, as Defendant has argued, is
whether Defendant is complying with the federal Medicaid Act. Plaintiffs have not
provided any caselaw on point, or persuasive argument, demonstrating the need for
discovery to establish whether Defendant was “aware” of the federal law and had the
intent to comply or not.
Request 30 asks for all documents which Defendant intends to use as an exhibit,
including demonstrative exhibits, at trial or in any dispositive motions.
In response to this request, Defendant objected that it was premature and said she
would produce any responsive documents at the appropriate time. In their motion to
compel, Plaintiffs acknowledge that Request 30 is premature in seeking production at this
time of all documents that Defendant intends to use as an exhibit at trial; however, they
argue Defendant should be required to identify specific exhibits that will be used for
dispositive motions at this time since they expect the Court to set a schedule for those
motions after ruling on this discovery motion. (Doc. 89, at 10-11). Defendant opposes
the motion since discovery is ongoing, no depositions have been taken, and no schedule
has been set for dispositive motions. (Doc. 91, at 7). In addition, Defendant says she is
unable to identify with specificity what exhibits will be used but Plaintiffs should assume
that all documents produced to date (labeled D1-233) may be used. (Id.). The motion to
compel as to Request 30 is denied as premature.
CONCLUSION
For the reasons stated above, Plaintiffs’ motion to compel full and complete
responses to Interrogatories 4, 5, 7, 9, and 10, and Requests for Production 2, 3, 4, and
30 (Doc. 88) is granted in part and denied in part as follows. As to the Interrogatories,
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the motion is: granted in part as to Interrogatories 4, 5, and 7; and denied as
Interrogatories 9 and 10. As for the Requests for Production, the motion is: granted
part as to Requests 2 and 3; and denied as to Requests 4 and 30. Defendant is
produce any documents responsive to Requests 2 and 3 by October 26, 2021.
telephone status hearing is set on November 2, 2021 at 11:00 a.m.
ENTER:
Dated: October 12, 2021

_____________________________
Sheila Finnegan
United States Magistrate Judge

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