Case: 14-2850 Document: 28 Filed: 04/01/2015 Pages: 44 · No. 13-cv-01300 The Honorable MARVIN E. ASPEN, Judge Presiding. BRIEF OF DEFENDANTS-APPELLEES BRETT E. LEGNER Deputy Solicitor

No. 14-2850

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

ILLINOIS LEAGUE OF ADVOCATES FOR THEDEVELOPMENTALLY DISABLED; and MURRAYPARENTS ASSOCIATION, INC.; and individuallyand on behalf of all persons similarly situated: RITAWINKELER, as Guardian for Mark Schomaker andMark Winkeler; KAREN KELLY, as Guardian forEric Schutzenhofer; LAUREEN STENGLER, asGuardian for Wayne Alan Stengler; STANKRAINSKI, as Guardian for Steven EdwardKrainski; ELIZABETH GERSBACHER, as Guardianfor Charlie Washington and Linda Faye Higgins;BARBARA COZZONE-ACHINO, as Guardian forRobert Metullo; ROBYN PANNIER, as Guardian forBenjamin Pannier; JEANINE L. WILLIAMS, asGuardian for John L. Fuller, Jr.; DAVID IACONO-HARRIS, as Guardian for Jonathon P. Iacono-Harris;DR. ROBERT POKORNY, as Guardian for RobertJames Pokorny; and GAIL K. MYERS, as Guardianfor Mark Andrew Wymore,

Plaintiffs-Appellants,

v.

PATRICK QUINN, as Governor of the State ofIllinois; ILLINOIS DEPARTMENT OF HUMANSERVICES; MICHELLE R.B. SADDLER, in herofficial capacity as Secretary of the IllinoisDepartment of Human Services; and KEVIN CASEY,in his official capacity as Director of DevelopmentalDisabilities of the Illinois Department of HumanServices,

Defendants-Appellees,

and

COMMUNITY RESOURCE ALLIANCE,

Defendant.

))))))))))))))))))))))))))))))))))))))))

Appeal from the United States DistrictCourt for the Northern District ofIllinois, Eastern Division.

No. 13-cv-01300

The HonorableMARVIN E. ASPEN,Judge Presiding.

BRIEF OF DEFENDANTS-APPELLEES

BRETT E. LEGNER

Deputy Solicitor General100 West Randolph Street12th FloorChicago, Illinois 60601(312) [email protected]

LISA MADIGAN

Attorney GeneralState of Illinois

CAROLYN E. SHAPIRO

Solicitor General

100 West Randolph Street12th FloorChicago, Illinois 60601(312) 814-3312

Attorneys for Defendants-Appellees.

Case: 14-2850 Document: 28 Filed: 04/01/2015 Pages: 44

TABLE OF CONTENTS

PAGE(S)

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

JURISDICTIONAL STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

I. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

II. Plaintiffs were not entitled to a preliminary injunction.. . . . . . . . . . . . . . . . . . 21

A. Preliminary injunction standard.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

B. Plaintiffs have forfeited any argument that they satisfied the necessary elements for a preliminary injunction. . . . . . . . . . . . . . . . . . . 21

C. The district court’s finding that plaintiffs were not denied thechoice of an institutional placement was not clearly erroneous. . . . . . . 23

D. Plaintiffs did not establish a likelihood of success on the meritson the ADA/Rehabilitation Act claims. . . . . . . . . . . . . . . . . . . . . . . . . . . 27

E. Plaintiffs did not establish a likelihood of success on the meritsof their Medicaid Act claim.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

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TABLE OF AUTHORITIES

CASES PAGE(S)

Amundson v. Wisc. Dep’t of Health Servs., 721 F.3d 871 (7th Cir. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Anderson v. City of Bessemer City,470 U.S. 564 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Bagley v. Blagojevich,646 F.3d 378 (7th Cir. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 24

Ball v. Rodgers,492 F.3d 1094 (9th Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34

Buechel v. U.S.,746 F.3d 753 (7th Cir. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 23

Cook v. City of Chicago,192 F.3d 693 (7th Cir. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

CTL ex rel. Trebatoski v. Ashland Sch. Dist.,743 F.3d 524 (7th Cir. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S.A., Inc.,549 F.3d 1079 (7th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Grant ex rel. Family Eldercare v. Gilbert,324 F.3d 383 (5th Cir. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Joseph v. Sasafrasnet, LLC,734 F.3d 745 (7th Cir. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 23

Kiman v. N.H. Dep’t of Corrs.,451 F.3d 274 (1st Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Korte v. Sebelius,735 F.3d 654 (7th Cir. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21

Leonard v. Mackereth,2014 WL 512456 (E.D. Pa. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Nick’s Cigarette City, Inc. v. U.S.,531 F.3d 516 (7th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 24

Olmstead v. L.C.,527 U.S. 581 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 29, 30

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Planned Parenthood of Wisc., Inc. v. Van Hollen,738 F.3d 786 (7th Cir. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 23

Platinum Tech., Inc. v. Fed. Ins. Co.,282 F.3d 927 (7th Cir. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Radaszewski ex rel. Radaszewski v. Maram,383 F.3d 599 (7th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Raytheon Co. v. Hernandez,540 U.S. 44 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Stuller, Inc. v. Steak N Shake Enters., Inc.,695 F.3d 676 (7th Cir. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

VLM Food Trading Int’l, Inc. v. Ill. Trading Co.,748 F.3d 780 (7th Cir. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Wash. v. Ind. High Sch. Athletic Ass’n, Inc.,181 F.3d 840 (7th Cir. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Wisc. Cmty. Servs., Inc. v. City of Milwaukee,465 F.3d 737 (7th Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Winter v. Natural Resources Defense Council, Inc.,555 U.S. 7 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Zatuchi v. Richman,2008 WL 3408554 (E.D. Pa. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

STATUTES and REGULATIONS

28 U.S.C. § 1292(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1367. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. § 1396n(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

42 U.S.C. § 1396n(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34

42 U.S.C. § 12132. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

28 C.F.R. § 35.130.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

42 C.F.R. § 441.302(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

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JURISDICTIONAL STATEMENT

Plaintiffs-Appellants’ jurisdictional statement is not complete and correct.

Defendants-Appellees submit this jurisdictional statement pursuant to Circuit Rule

28(b).

Plaintiffs are the Illinois League of Advocates for the Developmentally

Disabled, the Murray Parents Association, Inc., and several individual guardians of

people residing at Murray Developmental Center. C. 815-21 (Doc. 55 at 10-16). They

brought this action against the Governor, in his official capacity; the Illinois

Department of Human Services (Department); Kevin Casey, Director of the

Department’s Division of Developmental Disabilities; Michelle R.B. Saddler, the

Department’s Secretary; and Community Resource Alliance. C. 821-22 (Doc. 55 at

16-17). Plaintiffs claimed that defendants violated: (1) their rights under the

Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Medicaid Act;

(2) federal rights conferred on them by the Supreme Court’s decision in Olmstead v.

L.C., 527 U.S. 581 (1999); and (3) their federal constitutional right to equal

protection. C. 827-44 (Doc. 55 at 22-39). The district court has federal question

jurisdiction over these federal claims pursuant to 28 U.S.C. § 1331. Additionally,

plaintiffs purported to allege violation of Illinois Medicaid laws. C. 842-43 (Doc. 55 at

37-38). The district court has supplemental jurisdiction over the related state claims

pursuant to 28 U.S.C. § 1367.

On July 21, 2014, the district court entered its order denying plaintiffs’ motion

for a preliminary injunction. C. 6738-92 (Doc. 400). On August 20, 2014, plaintiffs

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timely filed a notice of appeal from that decision. C. 6797-98 (Doc. 404). This Court

has jurisdiction over this appeal from the denial of preliminary injunction pursuant

to 28 U.S.C. § 1292(a)(1).

ISSUES PRESENTED FOR REVIEW

1. Whether the district court’s decision should be affirmed where plaintiffs

have forfeited any claim that they satisfied the irreparable harm element of the

preliminary injunction test or that the balance of interests favors granting injunctive

relief.

2. Whether the district court’s decision that plaintiffs did not establish a

likelihood of success on the merits of their claims was not clearly erroneous where

the evidence established that plaintiffs were not deprived of any choice of services to

which they were entitled.

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STATEMENT OF THE CASE

Procedural Background

Plaintiffs filed this complaint alleging that the Department’s plan to close

Murray Developmental Center violated their statutory and constitutional rights. C.

806-45 (Doc. 55). They asserted that the Department’s alleged decision to transfer

the developmentally disabled residents from Murray Center to community-based

settings deprived them of their rights to services and choice of placement to receive

those services. Id. Plaintiffs sought, and received, a temporary restraining order

enjoining defendants from transferring Murray Center residents to other locations.

C. 1130-31 (Doc. 90). Thereafter, the court held a hearing on plaintiffs’ motion for a

preliminary injunction (C. 95-97 (Doc. 8)) asking that the court enjoin defendants

from closing Murray Center until it complied with federal and state law.

Factual Background

The following facts were put into evidence during the briefing and trial on

plaintiffs’ motion for preliminary injunction.

The Department serves the State’s developmentally disabled population

The Department runs seven State Operated Development Centers (SODCs) in

Illinois, including Murray Center, which is located in Centralia, Illinois. C. 3988

(Doc. 246-1, ¶ 7), C. 5116 (Doc. 348, ¶ 9). SODCs are publicly operated Intermediate

Care Facilities for the Developmentally Disabled (ICF/DDs). C. 3988 (Doc. 246-1, ¶

8). The Department’s Division of Developmental Disabilities also oversees more than

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300 private ICF/DDs in Illinois. C. 3988 (Doc. 246-1, ¶ 8). Private ICF/DDs tend to

be larger facilities like nursing homes where individuals live in congregate settings.

Id.

The Division serves approximately 22,000 individuals in community-based

settings through a Medicaid Home and Community Based Waiver Program. Id.

Through the Waiver Program, States are permitted to serve Medicaid eligible

recipients in the community instead of in congregate, institutional settings such as

SODCs or private ICF/DDs. C. 3989 (Doc. 246-1, ¶ 8). There are 22,975 people on a

waiting list for community-based services in Illinois. C.4003 (Doc. 246-1, ¶ 36).

Approximately 9,900 people in Illinois reside in Community Integrated Living

Arrangements (CILAs). C. 3989 (Doc. 246-1, ¶ 8). A CILA is typically a house or

apartment in a residential setting that is more integrated into the community than a

congregate or institutional setting like a SODC and can house up to 8 people. Id.

The Rebalancing Initiative

In February 2012, then-Governor Quinn announced his Rebalancing Initiative.

C. 5117 (Doc. 348, ¶ 14). Through that program, the State is rebalancing its system

to become less reliant on ICF/DDs, including the SODCs. C. 3989 (Doc. 246-1, ¶ 9).

The goal is to serve more people in community settings, such as CILAs. Id. The

Human Services Institute has reported that Illinois serves more people per capita in

SODCs than the national average. Id. As such, the State’s approach to providing

services to individuals with developmental disabilities is antiquated and stifles the

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individuals’ developmental growth and dignity. Id. Pursuant to the Rebalancing

Initiative, two SODCs – Jacksonville Development Center and Murray Center – were

scheduled to close. C. 4666 (Doc. 275-1, ¶ 1); C. 5117 (Doc. 348, ¶ 14). Jacksonville

closed on December 3, 2012. C. 5117 (Doc. 348, ¶ 16).

Kevin Casey, at the time the Director of the Department’s Division of

Disability Services, explained that the closing of these larger institutions is a national

trend. C. 3988 (Doc. 246-1, ¶ 7). Ten States and the District of Columbia no longer

have any state-operated facilities for the developmentally disabled. Id. The

consensus among experts is that developmentally disabled individuals make greater

progress when they live in more integrated community settings. C. 3990 (Doc. 246-1,

¶ 11). Individuals living in a larger SODC setting are less able to interact with people

in the community or do things that other members of the community do, such as

grocery shopping, talking to neighbors, watching movies of their choice in their living

rooms, and eating in their kitchens. C. 3990 (Doc. 246-1, ¶ 12). An individual is more

likely to have his own room in a small CILA, and it is easier to create a home-like

atmosphere for individuals in a CILA than in a SODC. Id. Casey also explained that

the Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999), requires the

State to permit developmentally disabled individuals to live in the most integrated

community setting possible. C. 3991 (Doc. 246-1, ¶ 13).

Pursuant to a 2011 consent decree, as the State increases its capacity to serve

individuals in community settings, more people from private ICF/DDs must be given

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the opportunity to move to community placements. C. 3989 (Doc. 246-1, ¶ 10). The

State is working to increase community options through contracts with community

providers. Id.

Virtually all people can be served in the community with adequate supports.

C. 3990 (Doc. 246-1, ¶ 13). Derrick Dufresne, an expert in the field of developmental

disabilities, believes that with the proper supports in place, Murray Center residents

can thrive in 1-4 bed CILAs. C. 4668 (Doc. 275-1, ¶ 8). Some people, however, are

difficult to place in the community and can be more efficiently served in an ICF/DD

rather than a CILA. C. 3990 (Doc. 246-1, ¶ 13). Additionally, guardians may prefer

an institutional placement to a community placement for an individual. Id.

Murray Center is slated for closure under the Rebalancing Initiative

Murray Center is the State’s third-largest SODC, housing 233 people in five

buildings on its 120-acre, 16 building campus. C. 3988 (Doc. 246-1, ¶ 7); C. 5116

(Doc. 348, ¶¶ 10-11). Eighty-four percent of Murray Center residents have severe or

profound mental retardation, 68% have had a behavior intervention program

requiring high levels of supervision, and 51% received psychotropic medications.

C. 5116 (Doc. 348, ¶ 10). Fewer than 20% of Murray residents have had their own

rooms, and some rooms house four people. C. 3990 (Doc. 246-1, ¶ 12).

The Department contracted with Community Resource Associates (CR

Associates) to conduct assessments of residents to determine the supports and

services needed for an individual to be transitioned to a community setting. C. 3992

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(Doc. 246-1, ¶ 18). These assessments involve person-centered planning to transition

Murray Center residents to new placements. C. 3992-93 (Doc. 246-1, ¶¶ 18-19); C.

4077 (Doc. 246-2, ¶ 16), 4668 (Doc. 275-1, ¶ 8). This process is called the Active

Community Care Transition (ACCT) process. C. 3993 (Doc. 246-1, ¶ 19); C. 4072

(Doc. 246-2, ¶¶ 8-9); C. 4082 (Doc. 246-2, Ex. 1). The ACCT process is based on the

belief that all persons with developmental disabilities can be served in a community

setting with appropriate supports and services. C. 4073 (Doc. 246-2, ¶ 10); C. 4668

(Doc. 275-1, ¶ 7). The process focuses on 1-4 bed CILAs, but the recommended

services are not pre-determined. C. 4073 (Doc. 246-2, ¶ 10), C. 4669 (Doc. 275-1, ¶ 9).

If the resident’s guardian refuses a community placement recommended as a result of

the ACCT process, alternate placement options are available through a separate

process. C. 4669 (Doc. 275-1, ¶ 9).

CR Associates was working with the Department to provide for successful

transition of residents out of four SODCs, including Murray Center. C. 4669 (Doc.

275-1, ¶ 9). The transition at the other three SODCs was not the result of facility

closure, but rather to reach the goal of an overall census reduction at SODCs. Id.

The Department hired CR Associates to assess the residents because Murray

Center staff did not have enough time to do that in addition to their regular duties.

C. 3993 (Doc. 246-1, ¶ 18). To conduct these assessments, CR Associates employed

experts in the fields of psychiatric nursing, physical therapy, speech therapy, and

occupational therapy, among others. Id. Each resident goes through a thorough

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assessment process to determine the type of placement that will best serve his needs.

Id. The assessment reveals the type of services and level of staffing necessary for

potential placement in a CILA. Id. The individual’s needs drive the process, and

services and supports are geared to each individual situation. C. 3993-94 (Doc. 246-1,

¶¶ 19-20). This notwithstanding, the individual’s guardian can choose community

placement or placement in another ICF/DD, including in another SODC. C. 3994

(Doc. 246-1, ¶ 20).

There are virtually no services that are available in an SODC setting that are

not available in a community setting, and there is no budget cap on designing

appropriate community placement. C. 3994-95 (Doc. 246-1, ¶¶ 20-21). Community

placements often involve 24-hour care, physical therapy, speech therapy, occupational

therapy, and other services. C. 3994 (Doc. 246-1, ¶ 20). In some cases, a CILA

resident receives 24-hour one-on-one or even two-on-one care. C. 3994 (Doc. 246-1, ¶

20). No individual at Murray Center receives 24-hour-per-day nursing care, and a

hospital setting would be required to do so. C. 3994 (Doc. 246-1, ¶ 20).

After a plan is developed through the ACCT process, CR Associates would

make a recommendation to the Pre-Admission Screening (PAS) agent and the

Department, who would help residents and guardians make the ultimate placement

decision and will engage with community providers to determine which provider can

best implement the individual’s plan. C. 3995 (Doc. 246-1, ¶ 22); C. 4668 (Doc. 275-1,

¶ 8). The PAS agency is an independent entity with which the Department contracts.

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C. 3995 (Doc. 246-1, ¶ 22). The PAS agent meets with the family or guardian, and

reviews two documents with them: 1. a form that offers the family or guardian either

ICF/DD placement or community-based care, and 2. a list of available options for

care, including ICF/DD, SODC, and in-home and community services. C. 3995 (Doc.

246-1, ¶ 22); C. 4073 (Doc. 246-2, ¶ 10). The guardian must sign each document and

provide informed consent to the type of services to be provided. C. 3995 (Doc. 246-1,

¶ 22). The resident and guardian are given the opportunity to make a pre-transition

visit to the community placement if that option is selected. Id.

The Department’s plan was to assess every Murray Center resident for

community placement. C. 3995-96 (Doc. 246-1, ¶ 23). The resident’s guardian is

given the opportunity to make an informed choice about community placement, and

that informed choice can only happen after the individual is assessed for possible

community placement. C. 3996 (Doc. 246-1, ¶ 23). No individual will be coerced into

a community placement. C. 3996 (Doc. 246-1, ¶¶ 23-24).

Families of Murray Center residents can decline to participate in the ACCT

process, drop out of the process, or complete the process and reject the recommended

placement. C. 5713 (Doc. 382-1). In that case, the Department will assist the

families in finding another placement, either in a private ICF/DD, another public

SODC, or a different CILA. Id. That selection of alternate placement will be assisted

by the Department’s Bureau of Transitional Services, the Murray Center staff and

social workers, and the local PAS agent. Id.

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Mark Doyle, at the time the Governor’s Transition Coordinator, explained to

parents and guardians of Murray Center residents that options other than CILAs,

including SODCs, are options for current Murray residents. C. 3996 (Doc. 246-1, ¶

23; Ex. 7). Some guardians have said that in a January 15, 2013, meeting, Doyle told

them that SODCs were not options. C. 6759 (Doc. 400 at 22). While the goal of the

ACCT process is to transition Murray residents to 1-4 bed CILAs, CR Associates

would never initiate such transitions or make such recommendations without

guardian consent. C. 4669 (Doc. 275-1, ¶ 10). Similarly, the Department will not

transition a SODC resident to a CILA without guardian consent. Id. After going

through the ACCT process, some guardians have chosen to transition their wards to a

private ICF/DD or another SODC. C. 4670 (Doc. 275-1, ¶ 10). The guardians give up

no rights by participating in the ACCT process. C. 4671 (Doc. 275-1, ¶ 13).

No Murray Center resident will be given a community placement if the

guardian is opposed to it. C. 3996 (Doc. 246-1, ¶ 24); C. 4073 (Doc. 246-2, ¶ 10).

Efforts are underway at other SODCs to transition residents to community settings,

and that will create space at those facilities for Murray Center residents if their

guardians choose another SODC placement. C. 3997 (Doc. 246-1, ¶ 26). If a

community placement is not recommended by the assessment process, a private

ICF/DD or SODC will be the remaining options for that resident. C. 3998 (Doc. 246-

1, ¶ 28).

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The vast majority of Murray Center residents with private guardians have not

cooperated with the transition process and have refused to allow their wards to even

take part in the ACCT process. C. 3997 (Doc. 246-1, ¶ 25); C. 4670 (Doc. 275-1, ¶ 12).

Many guardians have signed statements refusing consent to permit CR Associates to

assess the resident’s records. C. 3997 (Doc. 246-1, ¶ 25). The guardians have pre-

determined that transition to any placement outside of Murray Center is

unacceptable. C. 4760 (Doc. 275-1, ¶ 12). The Department nonetheless was assessing

the records to determine the best placement when Murray Center closes. C. 3997

(Doc. 246-1, ¶ 25).

Ann Yaunches, the head of the PAS agency for the Centralia region, where

Murray Center is located, explained that typically an individual is not eligible for

continued SODC placement unless he is a danger to himself or others. C. 3995 (Doc.

246-1, ¶ 22); C. 5151 (Doc. 361-1, ¶ 5). The Department, however, waived the SODC

eligibility criteria for Murray Center residents, and has permitted three Murray

Center residents to transfer to other SODCs. C. 5152 (Doc. 361-1, ¶ 5).

The district court denied plaintiffs’ motion for preliminary injunction.

After a three-day preliminary injunction hearing and the submission of post-

hearing briefs and proposed findings of fact, the district court denied plaintiffs’

motion for a preliminary injunction. C. 6738-92 (Doc. 400). The court noted that

plaintiffs concede that they do not have a right to receive care in any particular

facility, and they cannot force the State to keep Murray Center open. C. 6746 (Doc.

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400 at 9). “Accordingly, so long as the State decisionmakers intend to close Murray,

it will close.” Id.

The court found that the Department’s Division of Developmental Disabilities

serves roughly 25,000 people and that there are an estimated 23,000 people with

developmental disabilities on a waiting list to receive services. C. 6742 (Doc. 400 at

5). Approximately 6,000 of those on the waiting list are in emergency situations. Id.

The Division lacks funding to offer services to those individuals. Id.

The court further found that the closing of large facilities such as SODCs is a

national trend, and that Illinois serves more developmentally disabled individuals in

institutions than any other State except for Texas and California. C. 6743 (Doc. 400

at 6). The State’s Rebalancing Initiative seeks to redirect the system towards

community-based services. Id.

The court found that there are several underlying bases for this move away

from institutionalization. C. 6743-45 (Doc. 400 at 6-8). First, community programs

are considered the best practice by the majority of professionals in the field. C. 6743

(Doc. 400 at 6). Community programs have been developing for over 50 years and,

overall, people with intellectual disabilities do better in community programs. Id.

Second, community programs on the whole are less expensive than institutional

placements. C. 6743-44 (Doc. 400 at 6-7). While not every community placement will

be cheaper than an institutional setting, the overall savings will enable the State to

serve people on the waiting list for services. C. 6744 (Doc. 400 at 7).

-12-


Third, the national trend away from institutionalization stems in part from the

Supreme Court’s decision in Olmstead. Id. There, the Court held that Title II of the

ADA requires States to provide community-based treatment options under certain

circumstances. Id. The Court held that unjustified isolation in institutions

constitutes discrimination on the basis of a disability. Id. As a result, States

including Illinois have sought to reduce the number of people placed in institutions

instead of less-restrictive community settings. C. 6744-45 (Doc. 400 at 8-9). While

the State prefers to reduce its reliance on institutional placements, State officials do

concede that some people may be more efficiently served in a SODC or ICF/DD, and

there may be some people for whom their guardian may prefer an institutional

setting. C. 6745 (Doc. 400 at 8).

The court further found that there was no evidence that the State had

transferred anyone out of Murray Center without the guardian’s consent. C. 6746-47

(Doc. 400 at 9-10). Additionally, there was no evidence that when the Jacksonville

facility was closed pursuant to the Rebalancing Initiative the State transferred any

residents to a community placement without guardian consent. C. 6746 (Doc. 400 at

9).

Regarding the ACCT process, the court found that the Department has made

an exception for Murray Center residents and will allow them to transfer to other

SODCs if requested by their guardians. C. 6751 (Doc. 400 at 14). Furthermore, the

Department notified guardians that they had the right to opt out of the ACCT

-13-


process at an informational session prior to this litigation. C. 6755 (Doc. 400 at 18).

The court held: “Based upon the record before us [ ] we find that [the Department]

does not require Murray guardians to participate in the ACCT process.” C. 6757

(Doc. 400 at 20). Families are allowed to opt out of the ACCT process, start the

process and then stop it, or see the process through but reject the results. C. 6757-58

(Doc. 400 at 20-21). Similarly, there was no evidence that the Department forced

guardians to participate in the ACCT process during the Jacksonville closure.

C. 6758 (Doc. 400 at 21).

Additionally, the court found that the evidence “do[es] not support a finding

that Defendants are impeding or would impede Plaintiffs’ right to consent to, or

reject, community placement.” C. 6759-60 (Doc. 400 at 22-23). Department officials

told guardians that SODCs would be available if guardians wanted them, informed

guardians that federal law gives parents the right to decide the final placement of

their child or children, encouraged guardians refusing to participate in the ACCT

process to contact a Murray Center social worker to begin the process of seeking out a

private ICF/DD, and reassured guardians that the Department will work with

guardians to transfer residents to other SODCs or private ICF/DDs. C. 6760 (Doc.

400 at 23). Indeed, “for guardians prepared to elect an institutional placement, [the

Department] has expressed its willingness to allow and effectuate those transitions.”

C. 6765 (Doc. 400 at 28). Moreover, the court found that the relevant testimony

“uniformly demonstrates that no Murray resident has been or would be transferred

-14-


into the community over guardian objection.” C. 6760-61 (Doc. 400 at 23-24).

Therefore the court “cannot find that Defendants have forced, or likely will force,

Murray residents into CILAs without guardian consent.” C. 6762 (Doc. 400 at 25).

Thus, “the evidence presented demonstrates” that “families may opt out of the ACCT

process” and also “may reject CILA recommendations.” C. 6758 (Doc. 400 at 21).

Turning to the legal standard, the court found that plaintiffs did not have a

better than negligible chance of succeeding on the merits of their claims. C. 6771-88

(Doc. 400 at 34-51). First, plaintiffs’ ADA and Rehabilitation Act claims were not

likely to succeed because Murray Center residents were not denied any benefits or

services because no resident will be transferred to a CILA over guardian objection,

and guardians have placement options available to them. C. 6772-76 (Doc. 400 at 35-

39). The court also found those claims unlikely to succeed because the Department’s

preference for community integration was not discriminatory, but rather is

consistent with the Supreme Court’s decision in Olmstead, and in any event the

presumption in favor of community placement is rebuttable. C. 6776-78 (Doc. 400 at

39-41).

Second, the court found plaintiffs unlikely to prevail on their equal protection

claim because they were not deprived of the right to reject community placement and

did not present any evidence showing that defendants acted with the express purpose

of depriving them of placement choice or necessary services. C. 6783-84 (Doc. 400 at

46-47). And third, the court found that plaintiffs were not likely to prevail on their

-15-


Medicaid Act claim, concluding that defendants have not deprived plaintiffs of their

choice of either institutional or community-based placement. C. 6786-88 (Doc. 400 at

49-51).

The court also found that plaintiffs did not establish that they would suffer

irreparable harm because plaintiffs are not required to accept CILA placements as a

result of the ACCT process, so enjoining the ACCT process would not prevent any

alleged harm. C. 6788-90 (Doc. 400 at 51-53). The court also rejected plaintiffs’

assertion that mere participation in the ACCT process constituted irreparable harm.

C. 6789 (Doc. 400 at 52). Finally, the court determined that the balance of the

interests did not weigh in plaintiffs’ favor. C. 6792 (Doc. 400 at 55).

This appeal followed. C. 6797-98 (Doc. 404).

-16-


SUMMARY OF ARGUMENT

The denial of plaintiffs’ motion for a preliminary injunction halting the process

of transferring Murray Center residents to other placements should be affirmed. To

be entitled to a preliminary injunction, plaintiffs must at the threshold establish

some likelihood of success on the merits of their legal claims and that they would be

irreparably harmed in some way without the interlocutory injunction. The district

court determined that plaintiffs failed to make either threshold showing. But on

appeal, plaintiffs argue only that the court erred in determining that they had no

likelihood of success on the merits. They have forfeited any claim to irreparable

harm and, on this basis alone, this Court should affirm the denial of the motion for

preliminary injunction.

Nor have plaintiffs established a likelihood of success on the merits of their

claims. Each claim is founded on the notion that Murray Center residents will be

deprived of services to which they are entitled. But, as the district court found, the

evidence established that no Murray Center resident is required to receive any

change in services by accepting transfer to a community setting. Plaintiffs do not

dispute that those findings had evidentiary support; at best, they ask this Court to

reweigh those findings. But reweighing the evidence is not the province of this Court

on review.

Indeed, there was evidence that showed that the guardians retain the ultimate

decision as to where Murray Center residents will be placed. And the evidence

-17-


established that, as the district court found, defendants will not move any resident to

a community setting absent guardian consent. Morever, the Department has stated

that it will permit Murray Center residents to transfer to other SODCs if available.

Thus, not only do guardians retain the right to choose institutional care over a

community setting, but they can also choose institutional care in a different SODC

where possible. While plaintiffs point to stray comments or context-less statements

that indicate that the SODC or institutional-placement option was not always

communicated to the guardians, the facts nonetheless show that no transfers will

take place without guardian consent and SODCs are, in fact, an option for Murray

Center residents. Because plaintiffs have this choice available to them, all of their

claims fall.

-18-


ARGUMENT

I. Standard of review.

On an appeal from the denial of a preliminary injunction, this Court reviews de

novo the district court’s legal conclusions, reviews its factual findings and resolution

of mixed questions of law and fact for clear error, and reviews the court’s weighing of

the preliminary injunction factors for an abuse of discretion. VLM Food Trading

Int’l, Inc. v. Ill. Trading Co., 748 F.3d 780, 787 (7th Cir. 2014); Korte v. Sebelius, 735

F.3d 654, 665 (7th Cir. 2013); Joseph v. Sasafrasnet, LLC, 734 F.3d 745, 747 (7th Cir.

2013).

Plaintiffs ask this Court to review de novo the circuit court’s resolution of

mixed questions of law and fact. Pl. Br. 29. The cases they cite for this suggestion,

however, do not support divergence from the typical standard of review. In Cook v.

City of Chicago, 192 F.3d 693, 696 (7th Cir. 1999), this Court explained that the

district court’s application of a set of facts to a legal standard – which presents a

mixed question of law and fact – generally is reviewed only for clear error. But

plenary review of these questions is sometimes afforded “when there is a need for

uniformity across cases or when the issue is so important that there is a felt need to

authorize second-guessing of the first-line decision-maker.” Id. at 697. Uniformity is

important at the doctrinal level, “but much less so at the level of the application of

doctrine to particular facts.” Id. The fact that a different judge faced with identical

facts would reach a different result does not result in removal of deferential review.

-19-


Id. Additionally, even when a question does not involve a question of credibility,

when the district court judge has “acquired a feel for the case that we could not

match without an inordinate expenditure of time,” plenary review is inappropriate.

Id. The Court in Cook gave deferential review to the mixed question (application of

the laches doctrine) before it. Id. Likewise, the other case plaintiffs cite in support of

plenary review of mixed questions, Platinum Technology, Inc. v. Federal Insurance

Co., 282 F.3d 927, 931 (7th Cir. 2002), also applied deferential and not plenary review

to the mixed questions on appeal.

Here, plaintiffs do not claim that plenary review is justified by any

transcendent doctrinal concerns. Instead, they assert only that “given the fact

intensive three-day hearing and the numerous affidavits in support of the

Preliminary Injunction,” this is “an appropriate circumstance to urge” this Court to

“second guess” the district court. Pl. Br. 30. The mere fact that there was a lot of

evidence before the district court does not justify plenary review — “second guessing”

as plaintiffs describe it — of the district court under either Platinum Technology or

Cook. If anything, it justifies the exact opposite, for it was Judge Aspen who

“acquired a feel for the case” as evidenced by his fact-intensive, 55-page

memorandum and order denying the preliminary injunction and containing over 30

pages of findings of fact. See C. 6738-92 (Doc. 400). And that came after the court

had granted a temporary restraining order and “acquired a feel for the case” through

numerous other rulings. The district court’s decision, thus, deserves deference.

-20-


And the clearly erroneous standard provides significant deference to the

district court’s decision. Findings will not be reversed under this standard of review

“unless, after reviewing all the evidence, we are left with the definite and firm

conviction that a mistake has been committed.” Buechel v. U.S., 746 F.3d 753, 756

(7th Cir. 2014) (internal quotation marks omitted). “As long as the district court’s

conclusions are plausible in light of the record viewed in its entirety,” they will not be

disturbed. Id. (internal quotation marks omitted).

II. Plaintiffs were not entitled to a preliminary injunction.

A. Preliminary injunction standard.

A plaintiff seeking a preliminary injunction must establish that he is likely to

succeed on the merits, he is likely to suffer irreparable harm in the absence of the

injunction, the balance of equities is in his favor, and the injunction is in the public

interest. Planned Parenthood of Wisc., Inc. v. Van Hollen, 738 F.3d 786, 795 (7th Cir.

2013) (citing Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20

(2008)). If the plaintiff establishes “some likelihood of success on the merits” and

irreparable harm, the court proceeds to a sliding-scale analysis under which the

greater the likelihood of success on the merits, the less heavily the balance of the

harms must favor plaintiff. Korte, 735 F.3d at 665.

B. Plaintiffs have forfeited any argument that they satisfied thenecessary elements for a preliminary injunction.

In their opening brief, plaintiffs argue only that they established a sufficient

likelihood of success on the merits of some of their claims. See Pl. Br. 1-2 (Issues

-21-


Presented For Review), 29-47 (Argument). But to be entitled to a preliminary

injunction, they must also establish that they would suffer some irreparable harm in

the absence of the injunction. See Stuller, Inc. v. Steak N Shake Enters., Inc., 695

F.3d 676, 678 (7th Cir. 2012); Girl Scouts of Manitou Council, Inc. v. Girl Scouts of

U.S.A., Inc., 549 F.3d 1079, 1086 (7th Cir. 2008). And the district court found that

they would not suffer irreparable harm in the absence of an injunction. C. 6788-90

(Doc. 400 at 51-53). The court concluded that “[n]either Defendants, nor the ACCT

process, require guardians to choose a CILA placement” so even if transfer to a CILA

might otherwise constitute irreparable harm, plaintiffs were not likely to face such

harm because they could refuse the transfer to the community setting. C. 6789 (Doc.

400 at 52). Moreover, the court found that there was no irreparable harm to

participating in the ACCT process, even assuming the residents were actually

required to take part in it. C. 6789-90 (Doc. 400 at 52-53). Plaintiffs offer no

argument on this requisite element for interlocutory relief in their opening brief, and

therefore have forfeited the point. See Bagley v. Blagojevich, 646 F.3d 378, 393 (7th

Cir. 2011) (failure to raise argument in opening brief results in forfeiture of issue);

Nick’s Cigarette City, Inc. v. U.S., 531 F.3d 516, 524 n.2 (7th Cir. 2008) (same). This

Court should therefore affirm the district court’s judgment on this basis alone.

Additionally, plaintiffs offer no analysis or argument on the proper balancing

of the interests. Even if plaintiffs made the threshold showings of irreparable harm

and likelihood of success on the merits, the court is then required to balance the

-22-


parties’ interests to determine if the injunction is justified. Planned Parenthood of

Wisc., 738 F.3d at 795. The district court determined that plaintiffs’ interests did not

outweigh defendants’ interests. C. 6792 (Doc. 400 at 55). As with the irreparable

harm element, plaintiffs have forfeited any argument on this required element for a

preliminary injunction, and the Court may also affirm on this basis alone.

C. The district court’s finding that plaintiffs were not denied thechoice an institutional placement was not clearly erroneous.

The evidence in the record, viewed in its entirety, supports the district court’s

determination (C. 6759-62 (Doc. 400 at 22-25) that plaintiffs were not denied the

choice of an institutional placement for Murray Center residents. See Buechel, 746

F.3d at 756. At most, plaintiffs reargue the evidence and ask the court to reweigh, or

second guess, the district court’s conclusions. But under the clearly erroneous

standard that applies to these findings, plaintiffs are not permitted to reargue the

facts on appeal, and this Court’s “role on appeal is not to reweigh the evidence, but to

review only for clear error.” Joseph, 734 F.3d at 748. Accordingly, “[w]here there

are two permissible views of the evidence, the fact finder’s choice between them

cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574

(1985).

Because the likelihood of success on every one of the claims plaintiffs raise on

appeal — their claims under Title II of the ADA, the Rehabilitation Act, and the

Medicaid Act — rest on the denial of this choice of services to which they assert they

were entitled, they can establish no likelihood of success on the merits of any of their

-23-


claims. Below, plaintiffs also raised an equal protection theory, but have forfeited

that claim by failing to raise any argument regarding it in their brief. See Bagley, 646

F.3d at 393; Nick’s Cigarette City, 531 F.3d at 524 n.2.

Based on the extensive evidence in the record, the district court concluded that

plaintiffs were not denied the choice between an institutional placement and a

community setting. To be sure, plaintiffs did present some evidence suggesting that

Department officials were planning to transition Murray Center residents to

community placements, that the focus of the ACCT process was on recommending

the proper supports and services for community placement, and the SODC option was

not always clearly communicated to the guardians. For instance, some guardians

claimed that in a January 15, 2013, meeting that Mark Doyle stated that the only

placements that were under consideration were CILAs and that SODC placements

were not an option. See C. 6759 (Doc. 400 at 22). After that meeting, however, Doyle

clarified to the guardians that institutional placement was an option. C. 5372. And

while plaintiffs point to other isolated comments, the district court did not credit

them against weight of the rest of the evidence. See 6759-61 (Doc. 400 at 22-24).

Indeed, against those isolated statements is the vast weight of the evidence

demonstrating that guardians do have the opportunity to chose an institutional

placement. As the district court noted, Department officials have repeatedly told

guardians that SODCs or institutional placements would be available. C. 6760 (Doc.

400 at 23) (citing Defs. Exs. 100; 102 at 14, 85; 103; 106; 109). And while plaintiffs

-24-


maintain that they were coerced into participating in the ACCT process, even though

the evidence establishes that guardians have simply refused to participate in the

process (C. 3997 (Doc. 246-1, ¶ 25); C. 4670 (Doc. 275-1, ¶ 12)), the evidence proves

that the guardians are free to reject any community placement recommended by the

ACCT process even if they do participate in it (C. 4669-71 (Doc. 275-1, ¶¶ 10, 13)).

Indeed, it is undisputed that no Murray Center resident will be transferred to a

community placement without guardian consent. C. 3996 (Doc. 246-1, ¶ 24); C. 4073

(Doc. 246-2, ¶ 10). And plaintiffs point to no situation where a Murray Center

resident was compelled to move to a CILA over the guardian’s objection. In fact, PAS

agent Ann Yaunches explained that the Department has made an exception to the

ordinary eligibility criteria for SODCs to explicitly permit permanent placement at

other SODCs for Murray Center residents. C. 5152 (Doc. 361-1, ¶ 5).

In their brief, plaintiffs assert that their lack of choice is somehow shown by

the fact they were told to work with Murray Center social workers to locate

institutional options. Pl. Br. 41. Although they deride this as a “figure it out on your

own option” (id.), it proves the existence, not lack, of choice. These facts show that

defendants have informed the guardians that Murray Center staff will help them

locate private ICF/DD placements if that is the route that the guardians choose.

Plaintiffs also claim that they have not been given a SODC option. Pl. Br. 42.

But plaintiffs do not support the position that they must be offered a SODC

institutional setting as opposed to a private institutional setting. In any case, Casey

-25-


testified that the Department will assist guardians in finding an alternate placement,

either in a private or public ICF or in a different type of CILA, even if they refuse to

participate in the ACCT process, opt out of the process, or decline the recommended

placement at the end of the process. C. 5713 (Doc. 382-1, 1/8/14 p.m. tr. at 25). That

assistance will be provided by the Department’s Bureau of Transitional Services,

Murray Center staff, and the PAS agent. Id. Mark Doyle, an official in the

Governor’s office, testified that the Department and the Governor’s office have

“made it very clear” to families of Murray Center residents that they “have the right

to choose between a community-based waiver program in the form of a CILA, home-

based community services, a private ICF, or another SODC.” C. 5852 (Doc. 382-1,

1/9/14 a.m. tr. at 34).

Furthermore, other than the isolated statements and incidents plaintiffs point

to, there was no evidence that established that defendants had coerced or will coerce

any Murray Center resident to choose a community placement. On the contrary, the

evidence was that guardians could reject any community placement recommendation.

C. 3996-98, 4670, 5713. Nor was there any evidence that defendants would not abide

by the guardian’s wishes for placement. The evidence thus showed that, as a

practical matter, defendants would permit guardians to choose institutional

placements, including SODCs where available, for Murray Center residents.

This evidence is more than adequate to support the district court’s conclusion

that plaintiffs are not being denied the choice of an institutional placement in the

-26-


wake of Murray Center’s closure. The isolated and context-less statements plaintiffs

offer in rebuttal do not overcome the weight of this authority. The district court’s

findings that plaintiffs were not deprived of choice was not clearly erroneous.

D. Plaintiffs did not establish a likelihood of success on the meritson their ADA/Rehabilitation Act claims.

Plaintiffs are not likely to prevail on their ADA and Rehabilitation Act claims.

Claims under Title II of the ADA and 504 of the Rehabilitation Act generally are

governed by the same standards, Radaszewski ex rel. Radaszewski v. Maram, 383

F.3d 599, 607 (7th Cir. 2004), and plaintiffs do not argue otherwise here.

Title II of the ADA provides that “no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132; see Kiman v. N.H. Dep’t of

Corrs., 451 F.3d 274, 283 (1st Cir. 2006). To prove discrimination “by reason of such

disability,” a plaintiff must show either that: (1) defendant intentionally acted on the

basis of the disability; (2) defendant refused to provide a reasonable modification; or

(3) defendant’s rule disproportionately impacts people with disabilities. CTL ex rel.

Trebatoski v. Ashland Sch. Dist., 743 F.3d 524, 528-29 (7th Cir. 2014); Wash. v. Ind.

High Sch. Athletic Ass’n, Inc., 181 F.3d 840, 847 (7th Cir. 1999). Plaintiffs assert

claims under all three methods, but none of the claims has any merit.

Under the first theory of liability, they argue that the “denial or discrimination

or the exclusion of Plaintiffs-Appellants in the Illinois SODC Program is intentional.”

-27-


Pl. Br. 33. The crux of plaintiffs’ claim is that defendants are “recasting” their

disabilities to transfer them from Murray Center and to CILAs. Id. at 33-34.

Without any citation, plaintiffs allege that the Rebalancing Initiative and the ACCT

process are designed to exclude them from the SODC program. Id. at 34. Plaintiffs

claim, again without citation, that defendants “have targeted only SODC residents

who have a level of disability different and more severe to magically transform them

into less disabled persons so they can not only close the SODC where they reside, but

deny them any other SODC and put them into the community.” Id. at 34-35.

Plaintiffs’ claims, however, are contradicted by the record and the district

court’s findings. The district found that no Murray Center residents are being denied

services at a SODC. C. 6773 (Doc. 400 at 36). On the contrary, defendants will work

with Murray Center guardians to place residents at other SODCs, and the

Department has created exceptions to normal eligibility criteria to allow Murray

Center residents permanent placement in other SODCs. See supra at § IIC. Along

those lines, the Department is working on increasing available capacity at the other

SODCs to ensure Murray Center residents a SODC placement if the guardian so

chooses. C. 3997 (Doc. 246-1, ¶ 26). This evidence shows that defendants are not

denying plaintiffs any SODC services.

Moreover, the evidence does not support plaintiffs’ bald claim that defendants

are “recasting” their disabilities. Instead, the ACCT process involves a detailed

examination of each resident’s case and an individualized plan detailing services and

-28-


supports unique to that person. C. 3993 (Doc. 246-1, ¶ 18). There is no evidence that

any Murray Center resident receives fewer services as a result of the ACCT process,

as the district court found. See C. 6775 (Doc. 400 at 38). Indeed, there could be no

such evidence because no guardian is required to accept the ACCT recommendation,

and they remain free to chose placement in another SODC. See supra at § IIC.

Contrary to plaintiffs’ claim that the ACCT process redefines their disabilities “so

that they can be forced into the community” (Pl. Br. 35), no Murray Center resident

is required to accept the recommendation of the ACCT process and no Murray Center

resident can be placed in a community setting without guardian consent.

Additionally, defendants’ predisposition in favor of community placement by

itself — which no Murray Center guardian has to accept — is not discrimination.

Rather, it is consistent with the Supreme Court’s decision in Olmstead, which

recognized that “unjustified institutional isolation of persons with disabilities is a

form of discrimination” prohibited by the ADA. 527 U.S. at 600. The Court

explained that “institutional placement of persons who can handle and benefit from

community settings perpetuates unwarranted assumptions that persons so isolated

are incapable or unworthy of participating in the community,” and the court added

that “confinement in an institution severely diminishes the everyday life activities of

individuals.” Id. at 600-01.

The Court held that States are required to provide community-based

treatment for developmentally disabled individuals when the State’s treatment staff

-29-


determines that a community placement is proper, the individual does not oppose the

placement, and the placement can be reasonably accommodated. Id. at 607; see id. at

602 (“[T]he State generally may rely on the reasonable assessments of its own

professionals in determining whether an individual meets the essential eligibility

requirements for habilitation in a community-based program.”) (internal quotation

marks omitted). As the district court found, the Rebalancing Initiative, through the

ACCT process, gives effect to Olmstead’s mandate because it “seeks to make

community-based treatment a reality for more Illinois citizens who need and desire

it.” C. 6777 (Doc. 400 at 40).

Under the second theory of liability, plaintiffs claim that defendants’ “current

plan of placing Murray residents into only 1-4 bed group homes and nowhere else

violates the ADA because it fails to provide a reasonable modification.” Pl. Br. 36

(emphasis in original). Public entities are required to make “reasonable

modifications in policies, practices, or procedures when the modifications are

necessary to avoid discrimination on the basis of disability.” 28 C.F.R. § 35.130.

Under this theory, plaintiffs must establish, first, that their disabilities are the reason

that they have been denied a service or benefit and, second, that a reasonable,

proposed modification exists. Wisc. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d

737, 755 (7th Cir. 2006).

Plaintiffs fail both parts of this test. First, they are not being denied any

services as the result of their disabilities. The record established, and the district

-30-


court found, that no Murray Center resident is receiving, or is likely to receive, fewer

or lesser services as a result of defendants’ actions. Indeed, no Murray Center

resident is being required to accept a community placement. And there is no

evidence to suggest that community placements provide fewer services. While some

services cannot be offered in the community, there is no evidence that defendants

have required, or will require, any individual requiring those services to accept a

community placement.

Turning to the second part of the test, to constitute a reasonable modification,

plaintiffs argue, defendants must provide them with “the choice of SODC care or a

valid community care option that adequately meets their needs.” Pl. Br. 35. But the

evidence supports the district court’s finding (C. 6781 (Doc. 400 at 44)) that Murray

Center residents do have the choice of institutional placement or the community

placement recommended by the ACCT process. See supra at § IIC. While plaintiffs

argue that transfer to CILAs that are still under construction is not a reasonable

modification (Pl. Br. 36), there is no evidence that they would be transferred to such

a place.

Under the third theory of liability, plaintiffs failed to establish a disparate

impact disability discrimination claim. Disparate impact discrimination occurs when

an entity adopts a policy or practice that is facially neutral in its treatment of

different groups but treats one group more harshly than another and the difference

in treatment cannot be justified by a nondiscriminatory reason. Raytheon Co. v.

-31-


Hernandez, 540 U.S. 44, 52 (2003). Here, plaintiffs argue that the Rebalancing

Initiative and ACCT process disparately impact them by depriving them of the ability

to participate in the “Illinois SODC Program” as well as depriving them of SODC

services, and that they are deprived of the right to choose “between adequate and

safe institutional and community services.” Pl. Br. 37. They conclusorily assert that

through the ACCT process, their needs are predetermined for placement “to a less

effective and appropriate level of care.” Id.

But plaintiffs do not establish that any group was treated better than they

were, or that they were treated worse than any other group. And, again, the basic

theory of plaintiffs’ claim is false: they were not deprived of the choice between an

institutional setting and a community placement. See supra at § IIC.

Finally, plaintiffs claim that the Rebalancing Initiative and ACCT process

constitute intra-class discrimination. Pl. Br. 31-32 (citing Amundson v. Wisc. Dep’t of

Health Servs., 721 F.3d 871 (7th Cir. 2013)). According to plaintiffs, the evidence

established that defendants “targeted only severely and profoundly developmentally

disabled residents of SODCs” because they “wish to recast their disabilities” and

transfer them to CILAs. Id. at 32. But the evidence actually established that

defendants have not and will not transfer any individual to a community setting

without guardian consent. There is no basis to claim any class has been targeted for

transfer, because the guardians have the power to stop any transfers.

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E. Plaintiffs did not establish a likelihood of success on the merits oftheir Medicaid Act claim.

The district court correctly found (C. 6787-88 (Doc. 400 at 50-51)) that

plaintiffs failed to establish a likelihood of success on the merits of their Medicaid Act

claim. The Medicaid Act permits States to obtain a waiver from the requirement that

they provide all reimbursable services under the statute in an institutional setting

and allows the State to instead provide the services in a home or community setting.

See 42 U.S.C. § 1396n(c); Ball v. Rodgers, 492 F.3d 1094, 1098 (9th Cir. 2007). This

waiver program was enacted because Congress found that a “disproportionate

percentage of Medicaid resources were being used for long-term institutional care”

when studies showed that “many persons residing in Medicaid-funded institutions

would be capable of living at home or in the community” with appropriate services.

Ball, 492 F.3d at 1098 (internal quotation marks omitted). Thus, the waiver program

“allows states to be reimbursed for providing beneficiaries with noninstitutional care,

so long as the cost of providing this care is less than or equal to the cost of caring for

the same beneficiaries in more traditional long-term institutions. Id. at 1107.

The waiver program has a so-called “free choice” provision. See 42 U.S.C. §

1396n(c)(2); Ball, 492 F.3d at 1097-98. That provision requires the State to

guarantee that “such 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 feasible alternatives, if available under the waiver,

at the choice of such individuals, to the provision of inpatient hospital services,

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nursing facility services, or services in an intermediate care facility for the mentally

retarded.” 42 U.S.C. § 1396n(c)(2). The Department of Health and Human Services’

regulations provide that the State, as part of its waiver program, must inform any

beneficiary who is determined to be likely to require the level of care provided by an

intermediate-care facility of “any feasible alternative available under the waiver

program” and that the beneficiary be given the choice “of either institutional or home

and community-based services.” 42 C.F.R. § 441.302(d). These provisions give

individuals two rights: 1. the right to be informed of “alternatives to traditional, long-

term institutional care,” and 2. the right to choose among the alternatives. Ball, 492

F.3d at 1107.

The district court noted that this statute “seems to presuppose that the

individual entitled to information and choice is interested in community options.” C.

6878 (Doc. 400 at 50) (citing Grant ex rel. Family Eldercare v. Gilbert, 324 F.3d 383,

388 (5th Cir. 2003)). In Grant, the Fifth Circuit explained that § 1396n(c)(2) “at

most” gives “a right of information only for waiver applicants.” 324 F.3d at 388.

Here, plaintiffs do not allege that they or their wards are waiver applicants or have

been denied their right to choose a community placement over the institutional

placement. Instead, they claim the contrary: a right to choose an institutional

placement. That situation is outside the purview of § 1396n(c)(2), which is concerned

only with providing community-based options to institutional placement, not the

other way around.

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For their part, plaintiffs rely on an out-of-circuit district court case, Leonard v.

Mackereth, 2014 WL 512456 (E.D. Pa. 2014), to argue that § 1396n(c)(2) gives them a

right to choose institutional care. Leonard found that in the challenged program in

that case “it is undisputed that Plaintiffs cannot actually choose to switch from

home-based OBRA Waiver services to institutional-based ICF/ORC services, and

therefore do not have ‘freedom of choice’ under 42 U.S.C. 1396n(c)(2).” 2014 WL

512456, *8. But Leonard engaged in no analysis of the point, and did not explain why

the Medicaid statute applied to provide rights to people seeking institutional, not

community, placement. Id. Nor did the case Leonard relied on for this proposition,

Zatuchi v. Richman, 2008 WL 3408554, *10 (E.D. Pa. 2008). Zatuchi only examined

whether § 1396n(c)(2) created any enforceable rights, and held that the plaintiff

there fell within the zone of interests Congress sought to protect because she

required care in an intermediate-care-level facility. Id. Like Leonard, Zatuchi did

not offer any meaningful analysis as to why § 1396n(c)(2) would apply to plaintiffs

here.

And plaintiffs’ own analysis as to why the statute applies to them actually

proves the opposite. Pl. Br. 39. As plaintiffs explain, the presumption under

Medicaid is that Medicaid resources will be spent on institutional care. Id. The

waiver program, then, creates an exception to that. To have an approved waiver

program, Congress determined that State’s must make community placement options

available to those who would presumptively be placed in an institutional setting. The

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focus is not on giving people the option of an institutional setting, but on making

individuals aware of community-based options.

In any event, even if plaintiffs did have rights under this statute, they have not

been denied the choice that they allege the statute requires. They repeat their claims

that they were denied choice because they were not told of the option to choose

another SODC or because they were told to find alternative placements themselves.

Pl. Br. 41-44. But the district court found both that the Department would not move

anyone to a CILA who did not consent — thus providing a choice to the guardians —

and that the Department officials repeatedly told the guardians of their right to

choose an institutional placement. C. 6759-62 (Doc. 400 at 22-25). The district court

acknowledged that some plaintiffs were told at a meeting on January 15, 2013, that

SODCs were not an option. C. 6759 (Doc. 400 at 22). And on January 17, 2013, a CR

Associates representative told one guardian that two- to four-bed CILAs were the

only option. C. 6759 (Doc. 400 at 22).

But those isolated incidents are outweighed by the other repeated statements

by defendants and Department officials that guardians retained their right to choice

of placement. See C. 6760 (Doc. 400 at 23) (citing Defs. Exs. 100; 102 at 14, 85; 103,

106; 109). On top of that, the evidence supported the district court’s conclusion that

Murray Center residents would not be transferred into the community over their

guardians’ objections, thus preserving their choice. See C. 6760-61 (Doc. 400 at 23-

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24). For these reasons and those explained supra at § IIC, plaintiffs were not denied

of any choice they were entitled to under the Medicaid Act.

In sum, plaintiffs failed to establish a likelihood of success on the merits of any

of their claims. The evidence supports the district court’s conclusion that the

guardians of Murray Center residents retain the right to choose between an

institutional and a community placement for the residents and that no resident will

be transferred to a community setting without guardian consent. Although plaintiffs

seek to reargue the evidence, reweighing the evidence is not this Court’s role on

review. Furthermore, plaintiffs have made no argument on appeal that they would

be irreparably harmed in the absence of the preliminary injunction, and this Court is

thus left unable to balance the likelihood of success on the merits with the amount of

risked harm. Nor have plaintiffs explained why the balance of interests falls in their

favor. For all of these reasons, this Court should affirm the denial of plaintiffs’

motion for a preliminary injunction.

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CONCLUSION

For these reasons, Defendants-Appellees request that this Court affirm the

denial of Plaintiffs-Appellants’ motion for a preliminary injunction.

s/ Brett E. Legner BRETT E. LEGNER

Deputy Solicitor General100 West Randolph Street12th FloorChicago, Illinois 60601(312) [email protected]

Respectfully submitted,

LISA MADIGAN

Attorney GeneralState of Illinois

CAROLYN E. SHAPIRO

Solicitor General

100 West Randolph Street12th FloorChicago, Illinois 60601(312) 814-3312

Attorneys for Defendants-Appellees.

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION,TYPEFACE REQUIREMENTS, and TYPE STYLE REQUIREMENTS

I hereby certify that this brief complies with the typeface requirements of

Federal Rule of Appellate Procedure 32(a)(5) and Circuit Rule 32 and the type style

requirements of Federal Rule of Appellate Procedure 32(a)(6) because the brief has

been prepared in a proportionally spaced typeface using WordPerfect X4, in 12-point

Century Schoolbook BT font, and complies with Federal Rule of Appellate Procedure

Rule 32(a)(7)(B)(I) in that the brief contains 9,099 words. In preparing this

certificate, I relied on the word count of the word-processing system used to prepare

this brief, Word Perfect X4.

s/ Brett E. Legner BRETT E. LEGNERDeputy Solicitor General100 West Randolph Street, 12th FloorChicago, Illinois 60601(312) [email protected]

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CERTIFICATE OF SERVICE

I certify that on April 1, 2015, I electronically filed the foregoing Brief of

Defendants-Appellees with the Clerk of the Court for the United States Court of

Appeals for the Seventh Circuit by using the CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by

the CM/ECF system.

Respectfully submitted,

s/ Brett E. LegnerBrett E. [email protected]

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Documents

Case: 14-2850 Document: 28 Filed: 04/01/2015 Pages: 44 · No. 13-cv-01300 The Honorable MARVIN E. ASPEN, Judge Presiding. BRIEF OF DEFENDANTS-APPELLEES BRETT E. LEGNER Deputy Solicitor