Case 1:07-cv-04737 Document 65 Filed 04/14/2008 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LENIL COLBERT, CONSTANCE GRAY,

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ERNEST REEVES, KENYA LYLES, and

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DWIGHT SCOTT, for themselves and all

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others similarly situated,

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)

Plaintiffs,

)

)

v.

)

)

ROD R. BLAGOJEVICH, in his official capacity )

as Governor of the State of Illinois, et al.

)

)

Defendants.

)

Class Action 07 C 4737 Judge Joan Lefkow Magistrate Valdez

DEFENDANTS’ JOINT MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION TO MAINTAIN A CLASS ACTION

Defendants Rod R. Blagojevich, in his official capacity as Governor of the State of

Illinois, Carol L. Adams, in her official capacity as Secretary of the Illinois Department of

Human Services, Barry S. Maram, in his official capacity as Director of the Illinois Department of Healthcare and Family Services, and Eric E. Whitaker1, in his official capacity as Director of

the Illinois Department of Public Health, (herein after “the Defendants”), respond in opposition

to Plaintiffs’ Motion to Maintain a Class Action as follows:

BACKGROUND

The five named plaintiffs are alleged to be Medicaid-eligible individuals with a variety of

disabilities. Lenil Colbert is identified as a 35 year old man who has seizures, is partially

paralyzed and uses a wheelchair. (Complaint, ¶ 13-14). Constance Gray is a 49 year old woman

who has asthma, chronic obstructive pulmonary disease and sometimes uses a wheelchair for

1 The Current Director of the Illinois Department of Public Health is Damon T. Arnold, M.D. MPH.

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mobility. (Complaint, ¶ 26-27). Ernest Reeves is a 56 year-old man who is paralyzed with a spinal cord injury and confined to a wheelchair. (Complaint, ¶ 34-35) Kenya Lyles is a 32 year old woman who has seizures, high blood pressure and receives dialysis for kidney failure. (Complaint, ¶ 45-46) Dwight Scott is a 54 year old man who is paralyzed on the left side of his body and uses a wheelchair. (Complaint, ¶ 56-57). None of the named Plaintiffs is alleged to suffer from a mental or developmental disability. The named plaintiffs are currently residing or have resided in private nursing facilities. Two of the five named plaintiffs have been or will shortly be placed into a community setting.
Lenil Colbert is expected to be discharged from his nursing facility and return to an apartment in the community on April 15, 2008. Mr. Colbert had started looking for independent living arrangements as early as September 9, 2006. In February of 2007, plaintiff Colbert was progressing with his discharge plans with an anticipated 30 to 90 day discharge date. And even in March of 2007, plaintiff Colbert met with Access Living to obtain assistance in locating housing. Then on April 11, 2007, plaintiff Colbert was given approval to live in the community. Mr. Colbert’s records indicate he has applied for various housing options and has been waiting for approval. (See Exhibit “A”).2
Plaintiff Constance Gray’s M.D.S. Reports indicate that from August of 2006 to October of 2007, she did not express or indicate a desire to return to the community. (See Exhibit “B”) Also, there is nothing in her facility records that indicate that she is capable of living in the
2 The exhibits being used in Defendants’ Response are subject to the Agreed Protective Order (“APO”), entered by this court on February 5, 2008. In an attempt to comply with the APO, Defendants will not electronically file any exhibit. Defendants will submit to the court in chambers and to all counsel of record a separate Table of Contents with all documents relied on for this Response.
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community. On October 15, 2007, Earnest Reeves was discharged from his nursing facility and
returned home. In fact, as early as March 29, 2007, Mr. Reeves was visited by Access Living to begin planning for return to the community. (See Exhibit “C”).
The records for Plaintiff Lyles indicate that on November 6 and 8, 2006, she made contact with Access Living to get help finding an apartment. There is no indication in the records that there was any success with that endeavor. In fact, in the social service quarterly notes dated August 25, 2007, and November 27, 2007, no discharge plans were in place. Despite what Ms. Lyles may have indicated earlier, beginning in May of 2007, section “Q1" of the M.D.S. Reports, reflect that Ms. Lyles has not expressed or indicated a preference to return to the community and has an uncertain discharge status.3 (See Exhibit “D”)
The records for Dwight Scott indicate that, from May through August of 2006, he was not a candidate for discharge. On June 19, 2007, his family “requested alternative placement in Renaissance Nursing Home only.” The records indicate the facility has been following up with the new facility as to the availability of a bed. There is nothing in the records to indicate that Mr. Scott is a candidate for discharge to the community at this time. (See Exhibit “E”) Further, all the named Plaintiffs agreed to enter their respective nursing facilities. (See Exhibit “F”)
Plaintiffs move to certify a class consisting of: (1) “all Medicaid-eligible adults with disabilities in Cook County, Illinois; (2) who are being, or may in the future be, unnecessarilyconfined to nursing facilities; and (3) with appropriate support and services may be able to live in
3 The information gathered from records designated as GLEN, OPHC, CGG, CGL and REN were obtained pursuant to subpoenas served on the named plaintiffs’ nursing facilities and only consist of the information provided up to the date of complying with the subpoena..
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a community setting.” Plaintiffs seek relief under the Americans with Disabilities Act (“ADA”), 42 U.S.C.§
12132, the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), the Social Security Act 42 U.S.C. §§ 1396-1396v and the Nursing Home Reform Act, 42 U.S.C. § 1396a(a)(28)(A). Plaintiffs allege that they seek this relief because they have been needlessly and systematically institutionalized and isolated in nursing facilities and denied the opportunity to live in integrated settings in their communities, in violation of federal law and the decision of the U.S. Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999).
LEGAL STANDARD FOR CLASS CERTIFICATION For a class to be certified, the party seeking certification must satisfy each of the four elements of Rule 23(a) and at least one of the three elements of Rule 23(b). See Fed.R.Civ.P. 23. The four requirements of Rule 23(a) are: “(1) the class is so numerous that joinder of all members is impracticable (“numerosity”); (2) there are questions of law or fact common to the class (“commonality”); (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (“typicality”); and (4) the representative parties will fairly and adequately protect the interests of the class (“adequacy”).” Fed. R. Civ. P. 23(a). Plaintiffs have also alleged that this action qualifies for class certification under Rule 23(b)(2) - that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief to the class as a whole.” Fed.R.Civ.P. 23(b)(2). “[A] district court has broad discretion to determine whether certification of a class is appropriate.” Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993).
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However, a class action “may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of” Rule 23 are satisfied. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147,161 (1982). “[T]he party seeking class certification assumes the burden of demonstrating that certification is appropriate.” Retired Chicago Police Ass’n, 7 F.3d at 596. Because class certification often involves considerations that are enmeshed in the factual and legal issues comprising the Plaintiffs’ cause of action, a court sometimes must look behind the pleadings before deciding certification. Falcon, 457 U.S. at 160. As such, Rule 23 does not require a court to accept as true all of the complaint’s allegations. Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001); see also Iosello v. Lawrence, Case No. 03 C 987, 2005 WL 2007147, at *5 (N.D. Ill. Aug. 18, 2005) (Plaintiff may not rest on mere conclusory allegations and must make a minimal factual showing that the conditions for certification exist).
ARGUMENT: CLASS CERTIFICATION MUST BE DENIED A. Plaintiffs’ Proposed Class Lacks Definiteness. It is axiomatic that for a class action to be certified a sufficiently definite “class” must exist. Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981); Wallace v. Chicago Housing Auth., 224 F.R.D. 420, 425 (N.D. Ill. 2004). The class must be sufficiently defined so that the class is identifiable. Oshana v. Coca-Cola Co., 225 F.R.D. 575, 580 (N.D. Ill. 2005). A sufficiently definite class exists if its members can be ascertained by reference to objective criteria. Wallace, 224 F.R.D. at 425. Furthermore, the class definition must be sufficiently precise to make it administratively feasible for the court to determine whether a particular individual is a member of the proposed class. Id. Plaintiffs’ proposed class is unclear and confusing in the following respects: 1) the
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proposed class definition fails to define the relevant characteristics of the proposed class; 2) fails to identify the specific services the Plaintiffs are allegedly being denied; and 3) fails to delineate the specific relief sought by the class. These deficiencies should lead to denial of class certification.
To determine who will be in this proposed class, the Court must look at the claims raised by the Plaintiffs in their complaint. Those claims are:
Defendants have violated Plaintiffs’ and others’ rights under federal law by: (a) conditioning receipt of long-term services on people with disabilities entering and remaining in unnecessarily segregated and institutionalized settings; (b) failing to ensure that nursing facility residents are assessed for community long-term care services, both at admission and regularly thereafter; (3) failing to inform nursing facility residents of home- and community-based long-term care options and alternatives; and (d) failing to provide nursing facility residents with sufficient, meaningful community-based long-term care, services and supports to reasonably accommodate those residents who can benefit from community life. (Complaint, ¶ 8). As they apply to the purported class, these claims are vague and ambiguous, making a determination as to who is in the class impossible. The Plaintiffs’ references to “communitybased long term care” does not give the court sufficient information to determine the make-up of the proposed class, as it is difficult, at best, to determine the services that are allegedly being denied Plaintiffs and others similarly situated. First and foremost, there are numerous services encompassed in the generic designation of “long-term care” services which are administered through DHS, HFS, and DPH that could be applicable to a class of disabled individuals. Plaintiffs’ failure to identify the specific services or group of services they have allegedly been denied makes it impossible to define a class, because it is not known exactly what services are at issue. Furthermore, Plaintiffs’ claims are contradictory as to whether or not these undefined
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“long term care services” are actually being provided to disabled individuals such as Plaintiffs. While the named Plaintiffs appear to claim that they can only access long-term care
services in a nursing home setting, the Plaintiffs also recognize that “[d]efendants provide funding for disability services in the community for a limited number of people situated similarly to [Plaintiffs] without conditioning receipt of such services on placement in a nursing facility.” (Complaint, ¶15, 28, 36, 47, 58) Moreover, the Plaintiffs admit that “[d]efendants also provide in-home and community services to people who would otherwise qualify for nursing facility services.…[U]nder these programs, people with disabilities live independently with communitybased supports and services, including healthcare, personal attendant care, and other long-term care services otherwise found in nursing facilities.” (Complaint, ¶ 93) Finally, the Plaintiffs assert that for some individuals, “[d]efendants contract with private home health agencies to provide in-home community long-term care…” and that where individuals “with disabilities served in the community hire their own care givers and attendants…[their] wages are paid by Defendants.” (Complaint, ¶ 94) While the Plaintiffs frequently use various iterations of the term “long-term care services,” they never define it. Without certainty as to what services are being denied, it is impossible to define a class.
An additional point of confusion in defining the class concerns housing. The Defendants are unclear as to what Plaintiffs mean by “housing.” Neither the Complaint nor the Memorandum in Support to Maintain a Class Action, defines or states whether the Plaintiffs are seeking subsidized housing, rent, rent assistance of some kind, for the State to build or provide housing or some other form of housing. Further, it is not clear whether the Plaintiffs are claiming that they are entitled to housing and not receiving it. It is also unclear whether they
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seek assistance in locating such housing. On the one hand, the Complaint alleges Plaintiffs have their own housing but lack services. Plaintiffs generally state that many individuals have to seek admission to nursing facilities from their personal homes because they lack access to in-home healthcare. On the other hand, the Complaint suggests Plaintiffs lack adequate housing and services. For example, the Plaintiffs state that many individuals “lack resources to obtain community services and housing on their own.” (Complaint, ¶ 98, 99) While it is alleged that the named Plaintiffs wish to live in the community, the class definition is not clear whether or not the Plaintiffs already have housing in which to receive community-based services or whether they are claiming the Defendants are responsible for either assisting them in locating housing or for providing and paying for their housing. It would be impossible for this court to ascertain whether or not the provision of housing itself is a part of the class definition. Because the Complaint fails to distinguish the nature of the “long term community services” sought and further fails to clarify whether Defendants are responsible for obtaining and providing housing, the class definition is vague and the Motion for Class Certification should be denied.
Additional problems arise with the definiteness and breadth of the class when you look at the phrase “Medicaid-eligible adults with disabilities.” First, the term “disability” with respect to an individual as defined by the ADA and stated in Olmstead is “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” Olmstead, 527 U.S. at 589. As the definition is applied in this instant matter, the proposed class could include individuals who are currently maintaining class actions against these same defendants in Ligas v. Maram, No. 05-C-4331 (involving individuals with developmental
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disabilities) and Williams v. Blagojevich, 05-C-4673 (involving individuals who have been diagnosed with mental illness). The class definition and relief sought in those cases is much different than what is proposed in this case, which purportedly involves individuals with physical disabilities resulting from a traumatic injury or medical illness. If this court were to grant class certification under the definition offered by the Plaintiffs, the classes in Ligas and Williams could be included in this case or at a minimum would overlap. That result could create inconsistent holdings among the three cases. It is unmistakable that the class definition proposed by Plaintiffs is not clear, and their motion should be denied.
B. Plaintiffs Have Failed to Establish Commonality. Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” A “common nucleus of operative fact” is generally sufficient to show a common question of fact. Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). Although some factual variation between the class members’ claims will not preclude certification, see id. at 1017, members of a proposed class must share “a common issue the resolution of which will advance the litigation.” Sprague v. General Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998). In their motion, Plaintiffs assert that they satisfy the commonality test because “The proposed class members are Medicaid-eligible adults with disabilities who, as a result of Defendants’ system-wide practices, are or in the future may be unnecessarily and unlawfully confined to nursing facilities.” See Class Cert. Mem., p. 6. That allegation, however, is insufficient to satisfy the commonality requirement because that allegation and its factual basis do not apply to the entire proposed class. As stated above in the introduction, each of the named Plaintiffs is disabled because of a
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traumatic injury or medical illness. Their progress and abilities have been assessed on a regular basis by the facilities as their M.D.S. evaluations show. (See Exhibits “B”, “D”, and “G”4) Each has been evaluated upon admission, readmission, quarterly and yearly. This information is then used to determine progress and advancement towards discharge. There is no single common element of fact observed in any of the records reviewed that could be deemed common to the entire class. (See above Background Section and Exhibits “A” through “F”) The Court has sufficient evidence to infer that the named Plaintiffs have not been damaged as alleged.
District courts have denied class certification in cases of this nature by stating, “a generalized claim for injunctive and declaratory relief to remedy alleged systematic failures in a state’s delivery of legally-mandated services does not present a sufficient ‘common question of law or fact’ for purposes of Rule 23(a)(2).” Bill M. v. Nebr. Dept. of Health and Human Services Finance and Support, Case No. 4:03-cv-03189 2007 WL 2068187 *5 (D. Neb. July 17, 2007); see also J.B. v. Valdez, 186 F.3d 1280, 1289 (10th Cir. 1999) (declining to find that an allegation of a systematic violation of the law automatically satisfies Rule 23(a)(2), and affirming denial of class certification on commonality grounds).
Further, where as here the diversity of the proposed class would require the Court to engage in individual determinations to decide class membership, commonality does not exist. See, e.g., Metcalf v. Edelman, 64 F.R.D. 407, 409-10 (N.D. Ill. 1974) (no commonality where
4 The MDS Reports that were produced during the limited class discovery are voluminous. To attach each report as exhibits would be impractical. As such, Exhibit “G” consists of MDS Report Tracking Forms, Discharge Forms, Reentry Forms and in Part 5 of Exhibit “G,” page 1 of several MDS Reports, to represent categories of assessments that were performed for each named Plaintiff. If the Court would like to review every MDS Report, except those already provided in Exhibits “B” and “D”, the Defendants will provide them.
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separate adjudications are necessary to determine if a particular Plaintiff is being deprived of a livelihood compatible with health and well-being and is thus a member of the class); see also, Fuzie v. Manor Care, Inc. 461 F.Supp. 689, 700 (N.D. Ohio, 1977) (“action challenging private nursing home's transfer or discharge of medicaid patients could not be maintained as class action where there was no common question of law inasmuch as basis for transfer or discharge of patients was dependent upon individual circumstances and there was no common element of fact except that all proposed class members were medicaid patients.”); see also 7A C. Wright & A. Miller, FEDERAL PRACTICE & PROCEDURE 3D § 1763 (“common questions may not be found when the decision regarding the propriety of injunctive or declaratory relief turns on a consideration of the individual circumstances of each class member or when the defendant has not engaged in a common course of conduct toward them”). As seen above, the named Plaintiffs all present with different medical issues that affect what treatment is appropriate. Given the variety of medical issues or conditions that affect treatment options, individual determinations are likely, if not inevitable, with this proposed class definition.
C. Plaintiffs Have Failed to Establish Typicality. Rule 23(a)(3) requires that the claims or defenses of the representative parties be “typical of the claims or defenses of the class.” A Plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory. Keele v. Wexler, 149 F.3d 589, 595 (7th Cir. 1998). The typicality inquiry is closely related to the commonality inquiry. Id. Although factual distinctions between the named Plaintiffs’ claims and those of other class members will not alone show a lack of typicality, the named representatives’ claims
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nevertheless must have the same essential characteristics as the claims of the class at large. Retired Chicago Police Ass’n, 7 F.3d at 597; De LaFuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). “If proof of [the Plaintiff’s] claims would not necessarily prove all of the proposed class members’ claims,” the Plaintiff fails to satisfy the typicality prong of Rule 23(a). Ruiz v. Stewart Associates, Inc., 167 F.R.D. 402, 405 (N.D. Ill. 1996) (internal quotations and citations omitted).
Plaintiffs claim “the named Plaintiffs’ interests are entirely coextensive with those of the class because they are Cook County residents who have been placed in nursing facilities despite their ability to live in the community, have a genuine concern with the outcome of this class action, and they share the same claims as the class members as well a strong interest in securing declaratory relief.” See Class Cert. Mem., p. 9. This is faulty reasoning because the records indicate that the named Plaintiffs’ claims lack typicality.5 As stated above, the named Plaintiffs’ situation are not typical of the other proposed class members. (See Background Section above.)
Plaintiffs’ proposed class definition which limits the class to “Medicaid-eligible adults with disabilities in Cook County, Illinois,” is problematic, in that the proposed class is limited to only those class members in Cook County. Plaintiffs are seeking relief from State officials, and because we know that the Medicaid rules generally have to be applied the same way across the state, limiting the class to Cook County residents is inappropriate. If this court were to grant
5 At the time of filing of this response, Mr. Colbert is scheduled to be discharged and move into an apartment on April 15, 2008. (See Exhibit “A”). Mr. Reeves was discharged from his nursing facility on October 15, 2007, and is living at home. (See Exhibit “C”). Mr. Scott, pursuant to the family’s request is moving to another facility. (See Exhibit “E”). For the remaining named Plaintiffs, their housing situation in the community is less clear. (See Exhibits “B” and “D”)
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class certification under the limited definition offered by the Plaintiffs, residents in other counties would then be left to their own devices to pursue alleged relief in other districts or possibly no relief what so ever. To limit the class to Cook County could create potential inconsistent holdings and force the State Defendants to defend numerous other cases.
Just as Plaintiffs’ proposed class definition lacks definiteness and fails the commonality requirement, it fails the typicality requirement. Plaintiffs’ overbroad class definition exposes numerous factual and legal differences between the named Plaintiffs and other members of the proposed class. The proposed class contains individuals who have moved to the community as well as those who were approved to move to the community but still need to find a place to reside. It also includes those who may not be ready for discharge to the community. Further, because each named Plaintiff has a specific medical condition, determination as to when they can return to the community can only be done on a case by case analysis.
Given these differences, the named Plaintiffs’ claims do not have the same essential characteristics as the claims of the rest of the proposed class. Proving the named Plaintiffs’ claims would not necessarily prove the claims of all proposed class members, which is what the typicality prong requires. See Iosello, 2005 WL 2007147, at *5 (Plaintiffs failed to satisfy typicality requirement where Plaintiffs did not establish that “the allegations of systematic disclosure violations, false or misleading representations, and payment violations apply to the proposed class of all . . . consumers”). “Courts faced with an overbroad class definition may deny certification for want of typicality.” Williams v. Ford Motor Co., 192 F.R.D. 580, 586 (N.D. Ill. 2000) (quoting McGarvey v. Citibank (South Dakota) N.A., 1995 WL 404866, at *4 (N.D. Ill. July 5, 1995). In this case, Plaintiffs’ overbroad class definition warrants denial of class
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certification for lack of typicality. See Ruiz, 167 F.R.D. at 405. D. The Class Definition Creates Antagonism Between the Named Plaintiffs and Potential Class Members. Rule 23(a) also requires that the named Plaintiffs be able to adequately represent the
interests of the entire class, and that their interests not be antagonistic to the class interests. See Retired Chicago Police Ass’n, 7 F.3d at 598. The problem of potential conflicts between class members is of particular concern where, as here, Plaintiffs seek Rule 23(b)(2) certification, because class members are not allowed to opt out of a Rule 23(b)(2) class action. See id.
As noted above, the Court in Olmstead limited the states’ obligation to provide community services to those “persons who do not oppose such treatment.” 527 U.S. at 607. By including in the class definition persons who could oppose community placement, as well as those who have no support from family and friends in the community to assist in providing housing, the proposed class creates antagonism between those named Plaintiffs who want to move from the nursing facilities to community settings, and potential class member who do not want or lack the support to move from their current placements. To grant Plaintiffs’ requested relief could impact negatively on those class members who do not or cannot move to the community because they would not have the support of family and friends to thrive in the community. Given this antagonism, the named Plaintiffs cannot adequately represent the interests of the entire class, and they fail to satisfy the adequacy prong of Rule 23(a). E. Plaintiffs Fail to Show That Defendants Have Acted or Refused to Act on Grounds
Generally Applicable to the Class. Plaintiffs’ Motion to maintain a class action should be denied because they are unable to satisfy the requirements of Rule 23(b)(2). Rule 23(b)(2) requires that “the party opposing the
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class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). Plaintiffs assert that they have satisfied Rule 23(b)(2), because the “proposed class is comprised of Medicaid-eligible individuals with disabilities who seek declaratory and injunctive relief to remedy Defendants’ class-wide civil rights violations.” Pl. Memo in Support of Mot. To Maintain Class at 13. A court may make whatever factual and legal inquiries are necessary in determining whether the requirements of Rule 23 (b)(2) are met. See Szabo, 249 F.3d at 675-676. In this case, the facts do not support Plaintiffs’ conclusion that the requirements have been met.
Plaintiffs fail to state what practice or policy of the Defendants has not been complied with or applied to the proposed class. A review of the records shows that the named Plaintiffs are evaluated and assessed; they are aware of the opportunity to return to the community; they are given assistance to find living arrangements in the community; and some in fact, have been placed in the community where they are provided services. (See the previously marked Exhibits related to the named Plaintiffs.) Based on these records, it is evident that the Defendants have not denied the Plaintiffs the opportunity to be evaluated and be placed in the community. Therefore, it cannot be inferred that the Defendants have not acted or refused to act on grounds generally applicable to the class in violation of Olmstead. As such, this court should deny the Plaintiffs’ Motion to Maintain a Class Action.
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WHEREFORE, the Defendants respectfully request this honorable Court deny the Plaintiffs’ Motion to Maintain a Class Action and grant Defendants all other appropriate relief.

Dated: April 14, 2008
LISA MADIGAN Illinois Attorney General
/s/ Ray J. Koenig III KERRY R. PECK RAYMOND J. KOENIG III TIMOTHY J. RITCHEY Special Assistant Attorneys General Peck, Bloom, Austriaco & Mitchell 105 West Adams, 31st Floor Chicago, IL 60603 (312) 201-0900 Rkoenig@peckbloom.com On Behalf of Defendant Blagojevich

Respectfully submitted,
/s/Andrew L. Dryjanski ANDREW L. DRYJANSKI GLADYS STEVENS MEGHAN O. MAINE PETER C. KOCH RACHEL FLEISCHMANN BRENT D. STRATTON Assistant Attorneys General General Law Bureau 100 West Randolph Street, 13th Floor Chicago, IL 60601 (312) 814-3632 Adryjanski@atg.state.il.us On Behalf of Defendants Blagojevich, Adams, Maram and Whitaker

/s/ Karen Konieczny KAREN KONIECZNY Assistant Attorney General Welfare Litigation Bureau 160 N. LaSalle Street, Suite N-1000 Chicago, Illinois 60601 (312) 793-2380 Karen.Konieczny@illinois.gov On Behalf of Defendant Maram

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LENIL COLBERT, et al., Plaintiffs, v.
ROD R. BLAGOJEVICH, et al., Defendants.

) ) ) No. 07-C-4737 )
) JUDGE LEFKOW ) MAGISTRATE JUDGE VALDEZ ) ) )

PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO MAINTAIN A CLASS ACTION INTRODUCTION
In this action, Plaintiffs have alleged broad, systemic violations of one of their most fundamental civil rights – to not have to cede their liberty and freedom in order to receive longterm care. Defendants’ illegal policies and practices that compel unnecessary segregation affect not just the named Plaintiffs, but also any other nursing home resident who likewise does not, from a treatment perspective, need to receive care and services in an institution. This case is a quintessential civil rights lawsuit appropriate for class certification.
Defendants ignore these common issues and instead try to shift the focus to the merits of Plaintiffs’ claims, via an inappropriate, premature and unreliable “analysis” of Plaintiffs’ selected medical records. Defs.’ Jt. Mem. in Opp. to Pls.’ Motion to Maintain a Class Action (“Opp.”) at 2-4, 9-12. Defendants also re-argue points previously rejected by this Court, and most importantly, fail to recognize that the class definition, the class claims and the injunctive relief sought all flow directly from Defendants’ common policies and practices that effectively compel Plaintiffs’ and class members’ unnecessary and unwanted institutionalization.

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Accordingly, as set forth below, all of the elements of Rule 23 are satisfied and the proposed class should be certified.
ARGUMENT I. CLASS CERTIFICATION DOES NOT DEPEND UPON THE MERITS OF
PLAINTIFFS’ CLAIMS____________________________________________ Plaintiffs have alleged that they and other similarly-situated nursing home residents are subject to unnecessary institutionalization by Defendants. In two cases involving people with disabilities who similarly claimed to be unnecessarily institutionalized, this Court certified a class and rejected many of the same arguments raised by Defendants here. Ligas v. Maram, No. 05-C-4331, 2006 U.S. Dist. LEXIS 10856 (N.D. Ill. Mar. 7, 2006) (residents of large private Intermediate Care Facilities for the Developmentally Disabled (ICFs-DD)); Williams v. Blagojevich, No. 05-C-4673, 2006 U.S. Dist. LEXIS 83537 (N.D. Ill. Nov. 13, 2006) (residents of Institutes for Mental Diseases (IMDs)). Without making any attempt to distinguish Ligas or Williams,1 Defendants challenge class certification here. Their arguments flow almost entirely from their non-expert, lay characterizations of selected portions of the named Plaintiffs’ records. This is not only unreliable, but constitutes a classic merits-based challenge to class certification whose inappropriateness at this stage is well established: “[N]othing in either the language or history of Rule 23 gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” Eisen v. Carlisle &
1 Defendants’ only mention of these cases is an erroneous assertion that the proposed class here overlaps with those in Ligas and Williams. Opp. at 8-9. This is incorrect because, as Defendants know, each class lives in different facilities. The Ligas class is limited to residents of ICFs-DD, which are not “nursing facilities.” Compare 2006 U.S. Dist. LEXIS 10856, at *19, with Compl. ¶ 71. The Williams class is limited to residents of IMDs, which are also distinct from nursing facilities in that they are largely ineligible for Medicaid reimbursement. Compare 2006 U.S. Dist. LEXIS 83537, at *15, with Compl. ¶ 71.
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Jacquelin, 417 U.S. 156, 178 (1974); see also Payton v. County of Kane, 308 F.3d 673, 677 (7th Cir. 2002); Bieneman v. City of Chicago, 838 F.2d 962, 964 (7th Cir. 1988).
Indeed, in Williams, this Court rejected the same type of “review” of the plaintiffs’ medical records by these Defendants in an unsuccessful attempt to defeat class certification. As here, Defendants based their argument on “selected items contained in the medical records of the plaintiffs.” 2006 U.S. Dist. LEXIS 83537, at *9. The Court held:
Defendants’ memorandum is a lay interpretation of parts of records prepared by and for medical professionals. The data goes into the merits of the individual situations and cannot be evaluated by the court at this stage of the proceedings without appropriate foundational and expert testimony. Id. at *10; see also Ligas, 2006 U.S. Dist. LEXIS 10856, at *14 (“At this stage in the litigation, this court may presume based on the pleadings that a PAS agent would find qualified for community services the proposed class because by definition the class members qualify for long-term services and ‘could live in the community.’”); Fields v. Maram, No. 04-C-0174, 2004 U.S. Dist. LEXIS 16291, *22 (N.D. Ill. Aug. 16, 2004) (“While Defendant has submitted evidence it contends supports the conclusion that it does not have a policy which discriminates against disabled nursing home residents … the Court's role in deciding a motion for class certification does not involve deciding the ultimate merits of Plaintiffs’ suit.”) Contrary to Defendants’ contention, Szabo v. Bridgeport Machines does not stand for the proposition that the Court may deny class certification based on the merits of the named Plaintiffs’ claims. 249 F.3d 672, 677 (7th Cir. 2001). See Rahim v. Sheahan, No. 99-C-0395, 2001 WL 1263493, at *10 (N.D. Ill. Oct. 19, 2001) (“We do not believe that Szabo directs district courts to decide class certification questions based on a preliminary assessment of the ultimate merits of the plaintiffs’ claims: to base class certification on a prediction of who will win the case would be at odds with Eisen.”); Yon v. Positive Connections, No. 04-C-2680, 2005
3

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WL 628016, at *1 (N.D. Ill. Feb 2, 2005) (“Szabo does not permit a court to reach the merits of a matter in deciding class certification”).
Importantly, Szabo was not decided in the context of Rule 23(b)(2), the class provision at issue here, but in the context of a Rule 23(b)(3) class action for money damages, where common issues of law and fact must predominate. Szabo, 249 F.3d at 676. The Szabo Court was concerned with “nagging” issues of choice of law, commonality, and manageability, as well as individualized damages, in connection with a nationwide class alleging claims for breach of warranty, fraud and negligent misrepresentation. Id. at 677. These factors distinguish Szabo from this and other cases seeking injunctive relief to remedy systemic civil rights violations. Williams, 2006 U.S. Dist. LEXIS 83537 at *12 (rejecting Szabo and holding that “plaintiffs bringing an action under Rule 23(b)(2) need only show that defendants acted on grounds generally applicable to the class for which they seek declaratory and injunctive relief”)
Not only is Defendants’ representation of Plaintiffs’ medical records irrelevant and premature, but it is also incomplete, inaccurate and misleading. Defendants attempt to show Plaintiffs’ “need” to be segregated in nursing homes by negative implication only; in other words, if there is no assessment or other information concerning community placement, Defendants contend this omission justifies Plaintiffs’ continued institutionalization. See Opp. at 2-3, 12. To the contrary, the absence of professionally-appropriate community evaluations forms part of the basis of Plaintiffs’ claims, see Compl. ¶ 8, and confirm that Defendants have done nothing to evaluate Plaintiffs, prepare them for discharge, or provide them with services in the community.2
2 Defendants’ convenient and contradictory analysis of these records is highlighted by the case of Ernest Reeves, who moved to the community after Plaintiffs moved for class certification. His records also do not indicate whether he could live in the community; in fact, on September 20, 2007, the nursing facility wrote that it “cannot determine” whether Mr. Reeves
4

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As for the desires of the named Plaintiffs, if Defendants doubt the named Plaintiffs’ allegations in the Complaint that they want to live in the community, that is an appropriate subject for fact discovery, not class certification.3 Plaintiffs will show that they strongly oppose their own institutionalization. The evidence will also demonstrate that Plaintiffs felt pressure not to express a preference for community services, and the records nonetheless indicate that at least some of the Plaintiffs were unhappy with their confinement in a nursing facility. See e.g. Def. Ex. D at CGL 00016 (Kenya Lyles has “sad, pained, worried facial expressions” and is withdrawn “from activities of interest”).
Defendants’ review of Plaintiffs’ medical records raise more questions than they answer.4 That is precisely why the Court should not rely on such limited, unsupported, and unreliable lay evidence to make a determination of Plaintiffs’ claims on the merits at class certification, before any discovery or expert opinions. Accordingly, the Court should not deny class certification based on Defendants’ premature challenge to the merits of Plaintiffs’ claims.
II. THE PROPOSED CLASS SHARES COMMON QUESTIONS OF LAW OR FACT There are numerous questions of law and fact common to the class, including:
1) whether Defendants’ conduct violates the integration mandates of the ADA and Section 504; 2) whether Defendants fail to ensure that comprehensive, appropriate assessments of Plaintiffs
was likely to be discharged to a “more independent setting.” Yet Defendants do not appear to be challenging Mr. Reeves’ ability to live in the community.
3 Plaintiffs have never contended that the MDS accurately reflects the true number of people who want to leave nursing homes. The MDS data is collected by nursing homes, which have a financial incentive to prevent residents from leaving. Indeed, although Plaintiffs cite the MDS data on the number of residents who want to leave, they also state that “the actual number may be far higher.” Compl. ¶ 111. The fact that the named Plaintiffs’ nursing homes have inaccurately recorded their desires serves to substantiate this allegation.
4 The records further do not indicate that Plaintiffs were provided with sufficient information to make an educated decision as to whether they would prefer community services, that Plaintiffs are not suitable to obtain community services, or that that Plaintiffs were offered community services and declined them.
5

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and class members are conducted; 3) whether Defendants fail effectively to inform Plaintiffs and class members of community-based long-term care alternatives; and 4) whether Defendants fail to provide nursing facility residents with community long-term care services with reasonable promptness. Defendants do not address any of these questions in their opposition, effectively conceding that there are common questions of law and fact.5
Nevertheless, Defendants make two arguments as to why there are no common questions of law or fact: first, there are individual factual variations among class members; and second, the Court would have to conduct individual inquiries to determine class membership. See Opp. at 9, 10. Neither is persuasive.
First, it is well settled that Plaintiffs and class members need not share the exact same disabilities, medical issues and treatment needs for there to be common questions of law or fact. Rosario v. Lividitis, 963 F.2d 1013, 1017 (7th Cir. 1992) (“The fact that there is some factual variation among class grievances will not defeat a class action.”); Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994) (“[F]actual differences among the claims of the putative class members do not defeat certification”); Marisol A. v. Guiliani, 126 F.3d 372, 375 (2d Cir. 1997); Tonya K. v. Chicago Bd. of Educ., 551 F. Supp. 1107, 1111 (N.D. Ill. 1982) (“[I]t is irrelevant for commonality purposes that class members are variously disabled or need either day or residential placement”). The common questions set forth above relate not to the individual Plaintiffs’ circumstances, but rather the State’s systemic discrimination against Plaintiffs and the proposed class by failing to provide them with long-term care services in the most integrated setting appropriate to their needs.
5 Defendants also do not contest that joinder is impractical or that Plaintiffs’ counsel will adequately represent the class.
6

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The Court in Ligas found common questions of law or fact in a similarly-defined class of
disabled individuals:
The proposed class seeks to require the defendants to enact standardized policies regarding the community placement of eligible developmentally disabled individuals. The proposed class challenges the defendants' failure to provide developmentally disabled individuals with information about the option of community placement, systematically evaluate developmentally disabled individuals that qualify for long-term services to determine whether they are eligible for community placement, place those who are eligible in the community, and maintain a wait list for community placement. The fact that the named plaintiffs and some proposed class members may have learned about the option of community placement or already have been assessed qualified for community placement by a PAS agent relates to the level of the injury suffered and not whether the defendants' conduct was sufficient standardized.
2006 U.S. Dist. LEXIS 10856, at **11-12; see also Williams, 2006 U.S. Dist. LEXIS 83537, at
*8.6
Additionally, because this is a civil rights case for injunctive relief, the Court will not
have to make individualized determinations as to whether a particular person is a class member.7
This is because class membership will be determined post-relief through existing mechanisms
6 J.B. v. Valdez, 186 F.3d 1280 (10th Cir. 1999) and Bill M. v. Neb. Dep’t of Health and Human Servs., No. 4:03CV3189, 2007 WL 2068187 (D. Neb. Jul. 17, 2007) are distinguishable because in each case, the plaintiffs were challenging the state’s evaluation processes themselves. In J.B., the plaintiffs sought to change the state’s “system for evaluating and treating” children with disabilities. 186 F.3d at 1283. Thus, to know whether someone was a class member, the court would have had to determine whether the individual had been improperly assessed. Bill M. challenged the process for allocating community services funding, and the Court was concerned that some class members might lose funding if the process changed. 2007 WL 2068187, at *6.
By contrast, Plaintiffs here are not challenging Defendants’ community placement determinations, but rather seek to enjoin them to do so. Additionally, all class members are capable of living in the community and are accordingly not receiving services in “the most integrated setting appropriate” to their needs. See 28 C.F.R. § 35.130(d). This is a “discrete legal question” shared by class members. See J.B., 186 F.3d at 1289 (“For a common question of law to exist, the putative class must share a discrete legal question of some kind.”)
7 Defendants are forced to reach back to 1974 to find a case where this Court found that a Rule 23(a)(2) class lacked common questions of law or fact. Metcalf v. Edelman, 64 F.R.D. 407 (N.D. Ill. 1974), is easily distinguishable because it involved an exceedingly complex, four-part class whose membership could not be clearly identified and required separate judicial adjudications. No such issues exist here.
7

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for determining community placement. Plaintiffs do not ask this Court to make community placement determinations, but seek to enjoin Defendants to do so in compliance with federal laws, regulations and Olmstead. Ligas, 2006 U.S. Dist. LEXIS 10856, at *17 (“In essence, the plaintiffs are willing to have the defendants make these determinations based on reasonable assessments from their own state treatment professionals in accordance with Olmstead … Because the defendants would be evaluating based on their own criteria whether a potential class member would meet the state's requirements and thus the class definition, [the] court could order the defendants to engage in individual determinations should any relief be granted and not do so itself.”); Fields, 2004 U.S. Dist. LEXIS 16291, at *23 n. 8 (“[G]iven that Plaintiffs are not challenging how Defendant makes medical necessity determinations but are only seeking to ensure that such determinations are made for nursing home residents, the Court will not need to make plaintiff-by-plaintiff medical necessity inquiries and decisions in this case.”); Gomez v. Ill. State Bd. of Educ., 117 F.R.D. 394, 397 n. 1 (N.D. Ill. 1987); Risinger v. Concannon, 201 F.R.D. 16, 18 (D. Me. 2001). II. PLAINTIFFS’ CLAIMS ARE TYPICAL OF THE PROPOSED CLASS’ CLAIMS
Plaintiffs’ claims are typical of the class claims because they arise from the same course of discriminatory conduct by Defendants. In analyzing a class under Rule 23(a)(2), the courts “look to the defendant’s conduct and the plaintiffs’ legal theory.” Rosario, 963 F.2d at 1018 (citing De La Fuente v. Stokely-Van Camp, 713 F.2d 225, 233 (7th Cir. 1983)). Here, Defendants’ conduct with respect to Plaintiffs is typical of its conduct with respect to the class because in both cases, Defendants’ policies and practices have caused the unnecessary segregation and institutionalization of Plaintiffs and class members in nursing homes. Plaintiffs’
8

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legal theories are based on Defendants’ violation of various federal laws through the same discriminatory conduct with respect to Plaintiffs and class members.
Nonetheless, focusing on the different services class members may require, Defendants argue – again based on nothing more than their non-expert, lay review of Plaintiffs’ selected medical records – that the named Plaintiffs’ claims are not typical of those of the class. Opp. at 12. As stated above, this is a merits-based argument that is inappropriate for class certification. But even if Defendants were correct – and they are not – it does not matter if Plaintiffs require different services or have different facts from some of the class members. Ligas, 2006 U.S. Dist. LEXIS 10856, *13 (“The claims of the named plaintiffs and the proposed class, however, only must share the ‘same essential characteristics’; factual differences may still exist.”). What does matter is that the Plaintiffs and the class members were subject to unnecessary institutionalization in nursing homes due to Defendants’ illegal acts and omissions – the “same essential characteristics.” This renders the Plaintiffs’ claims typical of those of the class, regardless of Plaintiffs’ individual circumstances.
The fact that some of the named Plaintiffs have moved into the community following the filing of Plaintiffs’ motion for class certification does not defeat typicality. In Fields, the defendant attempted to defeat class certification by providing the named plaintiffs with the individual relief they sought – motorized wheelchairs – and then argued the named plaintiffs were no longer “typical” of the class. The Court squarely rejected this contention:
In circumstances such as this, where a governmental defendant provides a plaintiff a benefit after the plaintiff filed suit and sought class certification, courts have held that “class certification should be seen as ‘relating back’ to” the outset of the suit or the filing of the motion for class certification with the effect that issues such as the named plaintiff's membership in the class are addressed in terms of the circumstances that existed at that time the complaint or the motion for class certification were filed.
9

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2004 U.S. Dist. LEXIS 16291, at *28 (citations omitted). Accordingly, because all named Plaintiffs were indisputably institutionalized in nursing homes when Plaintiffs filed their motion for class certification on August 30, 2007, their class claims “relate back” to that date and remain typical of those of the class.
Finally, Defendants paradoxically argue that the class is too narrow, and, in the following paragraph, that the class is too broad. Opp. at 12-13. Defendants object to limiting the class to Cook County because other individuals or classes outside the county might later sue Defendants for the same violations. This is simply no reason to deny class certification. This Court has certified and is overseeing a class action case involving the state’s Medicaid program whose class is limited to Cook County. Memisovski v. Maram, No. 92-C-1982, 2004 U.S. Dist. LEXIS 16772, *5 (N.D. Ill. Aug. 23, 2004) (“This case is a class action brought on behalf of minor children in Cook County, Illinois who are or will be eligible for the Medical Assistance Program (‘Medicaid’)”).8 The argument is also absurd. Applying Defendants’ logic, Plaintiffs should also be precluded from filing this lawsuit on their own behalf, because other similarly-situated individuals might then file lawsuits and subject the State to inconsistent rules.9
Defendants’ argument that the class is overbroad is based on a mischaracterization of the class definition. Defendants falsely claim the class would include “individuals who have moved to the community” and “those who may not be ready for discharge to the community.” Opp. at 13. This is not the case. The proposed class, by its own terms, is limited to individuals who are
8 See also Corey H. v. Bd. of Educ., 995 F. Supp. 900, 902 (N.D. Ill. 1998) (class action by Chicago special-education students challenging statewide rules and practices of Illinois State Board of Education).
9 Plaintiffs limited the proposed class to Cook County because 1) the evidence suggests that a greater percentage of nursing home residents in Cook County desire to live in the community, and 2) Plaintiffs’ resource considerations. Although it would certainly be up to Defendants, Plaintiffs would hope that when the Court finds that Defendants have discriminated against Plaintiffs, Defendants will change their policies and procedures to cease such discrimination against all affected individuals, regardless of where they live.
10

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or will be “unnecessarily confined to nursing facilities and with appropriate supports and services may be able to live in a community setting.” Compl. ¶ 71. The named Plaintiffs accordingly share the same claims and essential characteristics as the class.10 III. THERE IS NO ANTAGONISM WITHIN THE CLASS
Defendants argue that Plaintiffs will not adequately represent the class due to their supposed potential antagonism with individuals who cannot or do not want to move into the community. Opp. at 14. This is without merit. Nothing in the relief sought by Plaintiffs would require anyone – class members or not – to accept community services, and the class does not include persons who “cannot” move to the community. Compl. ¶ 71. Plaintiffs seek to provide a choice to nursing home residents by requiring Defendants to provide information, assessments, and the opportunity, if appropriate, to receive long-term care services in the community – relief that would benefit all nursing home residents regardless of whether they ultimately move to the community. See Messier v. Southbury Training Sch., 183 F.R.D. 350, 357 (D. Conn. 1998) (“There can be little disagreement that having the right to choose between institutionalization and community placement will benefit … present and future members of the plaintiff class.”) Defendants have not alleged that any part of Plaintiffs’ requested relief would force nonconsenting residents to accept community placement.
10 Defendants made similar mischaracterizations in Ligas, as the Court there noted: To some extent, the defendants may misunderstand the class definition. In arguing against commonality, the defendants seem to overlook the limitation on the class definition that all members “qualify for long-term care” and “could live in the community.” For example, the defendants' concern that the class would encompass all developmentally disabled living at home is resolved by the class requirement that members “could live in the community.” 2006 U.S. Dist. LEXIS 10856, at *10.
11

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In Williams, where the plaintiffs sought relief similar to that here, Defendants also argued the class should not be certified because some institutional residents might not want to move into the community. The Court rejected Defendants’ demand:
[T]he relief requested does not require that each member of the class be placed in the community. It only requires that a proper evaluation be offered and made and that appropriate support and services be available for those who qualify for and choose community placement. Therefore, it is not a requirement for class membership that the class member be willing to consent to community placement. A decision to consent to the recommended placement need not be made until after an appropriate evaluation is performed and the individual knows what type of placement is being recommended. Consent will not be made a requirement for class membership. 2006 U.S. Dist. LEXIS 83537, at *14; see also Ligas v. Maram, 478 F.3d 771, 774 (7th Cir. 2007) (“Nothing in the complaint, either on its face or as correctly construed by the district court, would require the state to force those who desire institutional care to move out.”). That Defendants would repeat this baseless claim, despite being fully aware that class members would not be forced into the community, betrays the emptiness of their challenge to class certification. Defendants apparently contend that if some nursing home residents do not want to move into the community, those who do should simply forego their civil rights and remain unnecessarily institutionalized. The law is overwhelmingly to the contrary. Imasuen v. Moyer, No. 91-C-5425, 1992 U.S. Dist. LEXIS 1449, *4 (N.D. Ill. Feb. 7, 1992) (“[T]he fact that some class members may be satisfied with an unconstitutional system and would prefer to leave violations of their rights unremedied is not dispositive under Rule 23(a)”); Wyatt v. Poundstone, 169 F.R.D. 155, 161 (M.D. Ala. 1995) (denying class certification where some institutional residents opposed community placement “would, in effect, preclude the use of the class action device in many of the very cases where it could be the most advantageous”); Capitol People First v. Dep’t of Dev. Servs., 155 Cal. App. 4th 676, 699 (Cal. Ct. App. 2007) (“Interveners have
12

Case 1:07-cv-04737 Document 68 Filed 04/28/2008 Page 13 of 16
no legitimate interest in furthering any continuing violations of the law, or in preventing other class members from seeking systemic relief to correct any violations found by the court.”) IV. DEFENDANTS HAVE ACTED AND REFUSED TO ACT ON GROUNDS
GENERALLY APPLICABLE TO THE CLASS_______________________ As Plaintiffs demonstrated in their opening memorandum, Defendants have acted or refused to act on grounds generally applicable to the class because they have engaged in systemic, class-wide discrimination. See Amchem Prods. v. Windsor, 521 U.S. 591, 613 (1997) (citing Advisory Comm.’s Notes on Fed. R. Civ. P. 23, 28 U.S.C. App., p. 697 (1966) (“Illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.”)). Defendants do not appear to dispute that they have acted uniformly with regard to the class; in fact, by stating that “the Medicaid rules generally have to be applied the same way across the state,” Opp. at 12, they effectively concede this point. Instead, Defendants claim they have not violated the law, based again on nothing more than their selective lay review of the named Plaintiffs’ medical records. Opp. at 15. As discussed above, this is the very merits-based argument that courts have rejected at class certification. See e.g. Fields, 2004 U.S. Dist. LEXIS 16291, at *22. It is also not informative or dispositive concerning Defendants’ system for providing long-term care services. To deny class certification on this basis would be to deny the class claims before any Plaintiffs have had any opportunity to present discovery and expert testimony. See Moss v. Lane Co., 50 F.R.D. 122, 126 (W.D. Va. 1970), aff’d, 471 F.2d 853 (4th Cir. 1973) (“[T]o dismiss the class action on the basis of affidavits would be tantamount to determining that the charge of racial discrimination is untrue … [which] would be an improper determination at this stage of the suit.”)
13

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V. THE PROPOSED CLASS IS READILY IDENTIFIABLE Defendants fundamentally misunderstand the requirement that the class definition be “sufficiently definite” or “readily identifiable.” Without any legal authority, they read this requirement as authorizing Defendants to demand definitions of any term in the Complaint, regardless of whether it is in the class definition. Defendants also make the equally unsupported claim that Rule 23 requires that the class definition contain a lengthy description of all of the services and relief sought by Plaintiffs and the class. Opp. at 5-6. Defendants attempted this tactic in their Rule 12(e) motion last year. It was baseless then, and it is baseless now. “A class can be properly identified so long as it is defined by objective criteria, such that it is administratively feasible for the court to determine whether a particular individual is a class member.” Fields, 2004 U.S. Dist. LEXIS 16291, at *38 (quoting Ludwig v. Pilkington N. Am., 2003 U.S. Dist. LEXIS 20240 (N.D. Ill. Nov. 4, 2003)). Accordingly, the class definition must use objective criteria to define the scope of the class “by the activities of the defendants.” Alliance to End Repression v. Rochford, 565 F.2d 975, 978 (7th Cir. 1977). On the other hand, a class is not “definite” if membership is “contingent on the state of mind of the prospective class members.” Id. There is no serious dispute that Plaintiffs’ proposed class meets this requirement. To be a class member, one must be Medicaid-eligible,11 reside in a nursing home, and be capable of living in the community. Compl. ¶ 71. Accordingly, class membership depends on being subjected to unnecessarily institutionalization at the hands of Defendants, and no one can simply “decide” of their own volition to be a class member. Indeed, this Court has certified other classes of institutionalized individuals who seek community services, using similar terms.
11 Defendants do not dispute that the named Plaintiffs are Medicaid-eligible. Answers (Docket Nos. 52, 54) ¶¶ 2, 14, 27, 35, 46, 57, 135.
14

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Williams, 2006 U.S. Dist. LEXIS 83537, at *15 (“It is sufficient to define class members as

persons who, with appropriate support and services, may be able to live in an integrated

community setting. That is a sufficient definition, particularly in a case like this where

defendants' conduct toward the class largely defines the class.”); Ligas, 2006 U.S. Dist. LEXIS

10856, **16-17.

Defendants never allege that class membership turns on an individual’s state of mind.

Instead, they troll through the Complaint, claiming not to understand numerous terms, most of

which do not appear in the class definition and which Defendants commonly use in other contexts, such as “long term care,”12 “disability,” “Medicaid-eligible,”13 and “housing.” Opp. at

6-8. Defendants cite no authority whatsoever for their contention that Plaintiffs must define

these terms to Defendants’ satisfaction, or that the class definition must include this information, before the Court may certify the class.14

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request the Court grant Plaintiffs’

Motion to Maintain a Class Action.

Dated April 28, 2008

RESPECTFULLY SUBMITTED,

s/ Max Lapertosa______________ One of the Attorneys for Plaintiffs

(Full listing of Plaintiffs’ counsel on following page)

12 Defendants’ professed ignorance of this term is particularly disingenuous, given that two of their agencies have a “Bureau of Long-Term Care.”
13 Defendants’ only objection to “disability” and “Medicaid-eligible” is that their inclusion would result in overlap with the Ligas and Williams classes. Opp. at 8. As stated above, this is incorrect. See supra note 1.
14 Further undermining Defendants’ claim for this information is the fact that, after asserting a right to extensive class discovery, they unilaterally refused to provide any class discovery to Plaintiffs, on grounds that such discovery is premature. See e.g. Agency Defs.’ Answers to Pl.’s First Set of Interrogatories, attached hereto as Ex. “A”.

15

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Daniel J. Zollner Regina Ripley ROSS, DIXON & BELL, LLP 55 W. Monroe St., Suite 3000 Chicago, IL 60603 Tel: (312) 759-1920 Fax: (312) 759-1939
Max Lapertosa Kenneth M. Walden ACCESS LIVING 115 W. Chicago Ave. Chicago, IL 60610 Tel: (312) 640-2100 Fax: (312) 640-2139
Edward B. Mullen III MULLEN LAW FIRM 3501 N. Southport Ave, Suite 206 Chicago, Illinois 60657-1435 Tel: (773) 322-8055 Fax: (312) 759-1939

Stephen F. Gold 125 S. Ninth Street, Suite 700 Philadelphia, Pennsylvania 19107 Tel: (215) 627-7100 Fax: (215) 627-3183
Laura A. Miller Karen I. Ward EQUIP FOR EQUALITY 20 North Michigan Avenue, Suite 300 Chicago, IL 60602 Tel: (312) 341-0022 Fax: (312) 341-0295
Benjamin S. Wolf Gail Waller THE ROGER BALDWIN FOUNDATION OF THE ACLU OF ILLINOIS 180 North Michigan Avenue, Suite 2300 Chicago, Illinois 60601 Tel: (312) 201-9740 Fax: (312) 201-9760

 </s> Case 1:07-cv-04737 Document 162 Filed 06/07/10 Page 3 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LENIL COLBERT, et al.,
Plaintiffs,
v.
PATRICK QUINN, in his official capacity as Governor of the State of Illinois, et al.,
Defendants.

)

)

)

No. 07 C 4737

)

)

Judge Joan Humphrey Lefkow

)

)

Magistrate Judge Jeffrey T. Gilbert

)

)

)

)

JOINT STATUS REPORT Plaintiffs and Defendants, through their counsel, hereby submit the following status joint report: 1. This lawsuit involves an already certified class of all Medicaid-eligible adults with disabilities in Cook County, Illinois, who are being, or may in the future be, unnecessarily confined to nursing facilities when, with appropriate supports and services, are or may be able to live in a community setting. Plaintiffs allege that Defendants, various Illinois state officials, are violating the Americans with Disabilities Act, the Rehabilitation Act of 1973, the Social Security Act, and the Nursing Home Reform Act by effectively requiring people with disabilities to enter nursing facilities in order to obtain long-term care and assistance, and thereby forcing them to forego liberty, privacy, independence, and the opportunity to live in the communities of their choice. 2. All Defendants have answered and deny the substantive allegations in the Complaint. No counterclaims or third-party complaints have been filed.

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Case 1:07-cv-04737 Document 162 Filed 06/07/10 Page 4 of 7
3. Plaintiffs seek declaratory and injunctive relief, as well as attorneys’ fees and costs as provided by applicable law. There is no present claim for monetary damages. Plaintiffs seek a declaration that Defendants’ failure to provide Plaintiffs with services in an integrated setting appropriate to their needs violates Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, Title XIX of the Social Security Act, and the federal Nursing Home Care Act. Plaintiffs further request that the Court require Defendants (1) to inform Plaintiffs and class members that they may be eligible for community services and that they have the choice of such services; (2) to provide comprehensive assessments, evaluations and screenings to determine Plaintiffs’ and class members’ eligibility for community services, both prior to and after admission to nursing facilities; and (3) to provide, as appropriate, Plaintiffs and class members with long-term care services and supports in the community and refrain from providing long-term care only in institutions.
4. On February 25, 2009, District Court Judge Joan Humphrey Lefkow referred the case to this Court for purpose of holding proceedings relating to discovery supervision.
5. There are no pending motions in this Court or before Judge Lefkow. 6. Thirty-one depositions have been taken, and hundreds of thousands of pages of documents have been produced by hard copy, on CDs or by identification to websites. There are several additional depositions to be taken, and one deposition to be completed. Expert discovery (exchange of reports and depositions) is scheduled for the fall of 2010. 7. Discovery is set to close on June 30, 2010. There is no scheduled pretrial order or trial dates. 8. The parties have engaged in extensive ESI discovery. There are no current disagreements on any ESI issues.
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Case 1:07-cv-04737 Document 162 Filed 06/07/10 Page 5 of 7

9. The parties do not consent to a trial before a Magistrate Judge.

10. The parties are engaged in active and serious settlement negotiations.

Dated: June 7, 2010

RESPECTFULLY SUBMITTED,

s/ Edward B. Mullen III One of the Attorneys for Plaintiffs

/s/ Andrew L. Dryjanski_____________ Brent D.Stratton Andrew L. Dryjanski Assistant Attorney General General Law Bureau 100 West Randolph, 13th Floor Chicago, IL 60601 bstratton@atg.state.il.us adryjanski@atg.state.il.us
Attorney for Defendants
/s/ Karen Konieczny Karen Konieczny Assistant Attorney General Welfare Litigation Bureau 160 N. LaSalle Street, Suite N-1000 Chicago, Illinois 60601 (312) 793-2380 Karen.Konieczny@illinois.gov
On Behalf of Defendant Julie Hamos

/s/ Stephen D. Libowsky Stephen D. Libowsky (No. 6187081) Greg T. Fouts HOWREY LLP 321 North Clark Street – Suite 3400 Chicago, IL 60654 Telephone: 312.595.2252 Facsimile: 312.264.0372 libowskys@howrey.com foutsg@howrey.com
Edward B. Mullen III Kim Borowicz ACCESS LIVING 155 W. Chicago Avenue Chicago, IL 60610 Telephone: 312.640.2131 Facsimile: 312.640.2139 emullen@accessliving.org
Benjamin S. Wolf AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS 180 N. Michigan Avenue – Suite 2300 Chicago, IL 60601 Telephone: 312.201.9740 Facsimile: 312.253.7001 wolf@aclu-il.org

DM_US:22149985_1

Case 1:07-cv-04737 Document 162 Filed 06/07/10 Page 6 of 7 Karen I. Ward EQUIP FOR EQUALITY 20 N. Michigan Avenue - Suite 300 Chicago, IL 60602 Tel: 312.341.0022 Fax: 312.341.0295 karen@equipforequality.org Stephen F. Gold LAW OFFICES OF STEPHEN F. GOLD 125 South Ninth Street - Suite 700 Philadelphia, PA 19107 stevegoldada@cs.com Attorneys for Plaintiffs and the Class
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Case 1:07-cv-04737 Document 162 Filed 06/07/10 Page 7 of 7 CERTIFICATE OF SERVICE
I, Stephen D. Libowsky, certify that I caused a copy of the parties’ Joint Status Report to be served by e-mail to counsel of record via the ECF system of the U.S. District Court, Northern District of Illinois, Eastern Division, on this 7th day of June, 2010.
/s/ Stephen D. Libowsky Stephen D. Libowsky
7

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Case 1:07-cv-04737 Document 1 Filed 08/22/2007 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHRRN DISTRICT OF JLLlNOIS
EASTERN DIVISION

LENTL COLBERT, CONSTANCE GRAY, )

ERNEST REEVES, KENYA LYLES, ami )

DWIGHT SCOTT, for themselves and all )

others similarly situated,

)

)

Plainti ITs,

)

)

Y.

) CLASS ACTION

)

ROD R. BLAGOJEVTCH, in his official capacity as Goyemor oCthe State of

)

07CV4737

) )

JUDGE LEFKOW

lIIinois; CAROL L. ADAMS, in her

)

ofl1cial capacity as Secretary of the Illinois )

MAG. JUDGE VALDEZ

Deparhnen( oCHuman Services; BARRY )

S. MARAM, in his official capacity as

)

Director ofthc Illinois Departmen( of

)

Healthcare and Family Services; and ERIC )

E. WHITAKER, MD" in his onlcial

)

capacity as Direc10r of the minois

)

Department of Public Health,

)

\,FILED

)

Defendants.

)

AUG 22 2007
8-22-07

COMPLAINT

MICHAEL W. DOBBINS CLERK. U.S. DISTRICT COURT

I, INTRODUCTION

I. This is an action illr declaratory and injunctive relief under the Americans with

Disabilities Act ("ADA"). 42 U.S.c. § 12132, (he Rehabilitation Act of 1973, 29 U.S.c. §

794(a), the Social Security Act, 42 U.S.C. §§ I396-I396v, and the Nursing Home Relorm Act,

42 lJ.S.C. § 1396a(a)(28)(A).

2. Plaintiffs are Medicaid-eligible indiyidllals with disabilities who want to live in

their own homes or apmiments in the community ami could reside in (hem with appropriate

services, but have been unnecessarily and inappropriately institutionalized in skilled nursing

facilities (hereafter "nursing laci]j(j~s") in Cook COlmty, Illinois. Plaintiffs are eligible for,

.'

Case 1:07-cv-04737 Document 1 Filed 08/22/2007 Page 2 of 28

could be appropriately served by, and desire to obtain appropriate long-tenn care services provided by Defendants in the community rather than in institutions segregated from their family and friends, and from community life.
3. Defendants operate a system of\ong-tenn care for eligible individuals with disabilities. Under Defendants' system of care, as a condition of Plaintiffs' receiving long-term ~crvices, Plainti fTs are elTcctively compelled to accept and receive these services in segregated institutional settings.
4. Plaintiffs' plight is shared by many others. According to data maintained by the state and federal gove11lments, over 30% of elderly Cook County nursing facility residents and between 50-60% of non-elderly residents would prefer to receive long-term care services in their own homes, apartments, and community instead of a nursing facility.
5. Plaintiffs' and others' choices and prelerences for integrated, community care have been, and are being, systematically denied or ignored in favor of more expensive institutional nursing facility care to which DelCndants dedicate nearly 80% of minois' long-tern1 care budgel lor adults with disabilities.
6. As a result of Defendants' conditions for receipt of services, people with disabilities must enter nursing facilities in order to receive needed long-term care and assistance, forcing themtn forego liberty, privacy, independence, the opportunity to attend churches of their choice, and their housing.
7. Under the "integration mandates" of the ADA, 42 U.S.c. § 12132, its implementing regulations, 28 C.F.R. § 35.130(d), and Section 504 of the Rehabilitation Act,
* 29 U.S.C. § 794(a), and its implementing regulations, 28 C.F.R. 41.51 (d), Oefendants must
adlninistcr their 10ng-tenn care program for people with disabilities in a manner that provides services to individllals with disabilities in the most integrated setting appropriate to their

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individual needs. The unnecessary and unwanted segrcgation and isolation of people with disabilities in institutions constitutes discrimination on the basis of disability. Olmstead v. L C, 527lJ.S. 581,587 (\999).
8. Defendanls have violated PlaintHIs' and others' rights under federal law by: (a) conditioning reccipt oCiong-lenn care serviccs on people with disabilities entcring and remaining in unnccessarily segregated and institutionali:ced settings; (b) failing to ensure that nursing facility residents are assessed lor community long-tcrm care services, both at admission and rcgularly thereafter; (c) failing to infonn nursing facility residents ofhomc- and communitybascd 10ng-tenll care options and altematives; and (d) failing to provide nursing facility residents with sufficient, meaningful commLLI1ity-based long-term care, services and supports to reasonably accommodate those residents who can bcnelit Ii-om community life.
9. As a result ofthcsc violations, Plaintitfs and others have needlessly languished in institulions and have been denied long-tenn care in thc community.
10. On hehalfofthemsc\vcs and a class of similarly situated persons, Plaintiffs seek declaratory and iujunctive rc\icrto remedy these civil rights violations. II. JURISDICTION AND VENUE
11. This Court has jurisdiction over the subjcct matter ofthis action pursuant to 28 U.S.c. 9 1331 and 28 U.S.c. § 1342. Plaintins' claims fordcclaratoTY and injunctive relief are authorized under 28 U.S.c. 992201-02 and 42 U.S.c. § 1983. At all times relevant to this action, Defcndants have actcd under color of state law.
12. Venue is proper in the Northem District oJ'lIlinois under 28 U.S.c. § 139I(b) because a substantial part of the events or omissions giving rise to Plaintiffs' claims arose there.
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ITT. PARTIES 13. PlaintiffLENTL COLBERT is a thirty-Civc-ycar-old man who curren(1y resides at
Oak Park llealthcare Center, a nursing facility located in Oak Park, Illinois. 14. Mr. Colbert has seizures, is partially paralyzed, and uses a wheelchair. He is
eligible for and receiv~s Medicaid. 15. Despite his disabilities, Mr. Colbert does not require extensive nursing care or
oversight. The healthcare and personal assistance servic~s he receives in the nursing l"acility could be provided in the community. Defendants provide funding for disability services in the community I')f a limited number ofpeople situated similarly to Mr. Colbert without conditioning receipt ol" such services on placement in a nursing facility.
16. Before moving to the nursing facility, Mr. Colbert worked in a variety ofjobs, including drill press operator, factory worker and delivery company driver.
17. Tn February 2005, Mr. Colbert had a s(wke resulting from surgery to remove a blood clot. The stroke paralyzed him on the len sidc of his body and preventcd him from working.
18. Tn mid-January 2006, Mr. Colbert was living in Chicago with his mother. During lhallime, Mr. Colbert had several seizures. Mr. Colbert went to the hospital for evaluation ol" his seizures, where he was referred to a nursing facility. Hc was subsequently admitted to Oak Park Healthcare Center in February 2006, where he has resided ever since.
19. At the nursing lacility, Mr. Colbert must share a room with three other adults and accordingly has lillie personal privacy or any space to call his own.
20. l.ike other residents of the nursing lacility, Me. Colbert is subject to a 10:00 p.m. curfew, aner which the nursing facility's doors are locked. Residents who arrive later risk being lockcd out oCthe facility.
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21. Furthermore, Mr. Colbert and other residents are confined to their rooms after 10:00 p.m. Watching television in common areas and walking in the halls after that time are forbidden. Mr. Colbert has been reprimanded for walking in the hallway of Oak Park llealthcare Center aftcr 10:00 p.m. while exercising his disabled log.
22. Mr. Colbert and all residents or Oak Park HeaHhcare Center are relegated to the usc 0 ra single pay phone in the nursing facility, l11aking outside communication difficult and
dependcnt upon the nursing facility starr 23. Although Mr. Colhert has requested community-based servioes, to his knowledge
no one at Oak Park Healtheare Center has followed up on his requests. 24. Mr. Colhert wishes to live independently in the community with periodic nursing
services and otller appropriate supports. His family supports his desire to live in tile community. 25. Mr. Colbert is capable of living in the community, which is, for him, the most
integrated setting appropriate to his necds. However, under Defendants' system of care, Mr. Colbel1 has only been offered long-tenn care in an institutional, nursing f;lcility setting.
26. Plaintiff CONSTANCE GRAY is forty-nine-year old woman who currently resides at California Gardens Nursing and Rehabilitation Center ("Cal ifOfllia Gardens"), a nursing facility located in Chicago, lllinois.
27. Ms. Gray has asthma and chronic obstmetive pulmonary disease ("COPD"). She also sometimes uses a wheelchair for mohility. She is digible Ii)r and receives Medicaid.
28. Despite her disabilities, Ms. Gray does not require extensive nursing care or oversight. The healthcare and personal assistance services she receives in tho nursing facility could he provided in the eOlllmunity. Defendants provide funding for disability services in the eomlllunity for a limited number oJ'people situated similarly to Ms. Gray without conditioning receipl of such services <)n placement in a nursing facility.
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29. Ms. Gray graduated from Kennedy-King College with an associate's degree. Prior to becoming disablcd, Ms. Gray worked as a caregiver and personal assistant.
30. Tn early 2003, Ms. Gray had three brain aneurysms for which she was treated at University of Chicago Hospital. She was later transferred to Mount Sinai Hospital for rehabilitative treatment ofher aneurysms. In February 2003, Ms. Gray was transferred to California Gardens, her current nursing facility. Defendants did not offer, infonn or provide to Ms. Gray any other options such as home- or community-based healthcarc.
31. Residents of California Gardcns arc typically required to obtain passes from the nurses, sign in and out upon departure and retum, and notify the nursing home of their intendcd destinations and estimated times of rcturn. Residents may not slay overnight elsewhere.
32. Ms. Gray has encountered abusc at the hands of other residents at California Gardens. Another residcnt, without cause or provocation, physically attackcd and punched Ms. Gray. She was hospitalized for one week to recover from her injuries.
33. Ms. Gray secks to live in the community, preferably with a fricnd and caretaker, or with periodic nursing services. She is capablc ofliving in the community with appropriate sLLpports and services. Howevcr, under Defendants' system of care, Ms. Gray has only been offered long-term carc in an instilLLtional, nursing facility selling.
34. Plaintiff ERNEST REEVES is a fifly-six-year-old man who currently resides at Renaissance at Midway, a nLLrsing facility located in Chicago, Tllinois.
35. Mr. Reeves is paralyzed due to a spinal cord injury and uses a wheelchair for mobility. He is eligible for and rcceives Medicaid.
36. Despite his disabilities, Mr. Rcevcs does not require extensive nursing care or oversight. The heallhcare and personal assistance services he rcccivcs in the nursing facility could he provided in the community. Defendants provide funding for disability services in the
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community for a limited number of people sitnated similarly to Mr. Reeves without conditioning receipt of such ~erviccs on placement in a nursiug facility.
37. Before moving to the nUTsing facility, Mr. Reeves worked as a window cleaner On high-rise officc buildings in downtown Chicago, and eventually owned and operatcd a window cleaning busincss. More recently, Mr. Reeves wOTked on renovating residential propel1ies. In the course of that wOTk, Mr. Reeves fc1lthrough the roof of a two-story pToperty and broke his spinal cord, resulting in paralysis.
38. Mr. Reeves received treatment at several hospitals and rehabilitation facilities. Evcntually, hc moved to International Village, locatcd in Chicago, where he resided for approximately six months. Mr. Reeves developed bed sores and other ailments at International Village due (0 lack ofpropcr health care.
39. Approximately four years ago, Mr. Reeves transferred from International Village to Renaissance at Midway, his currcnt nursing facility.
40. Although Mr. Reeves is allowed to leave the nursing facility, he is required to receive pennission beforehand and generally must retum by 9:00 p.m.
4 I. Mr. Reeves has had numerous personal items stolen Ii'om him at the nursing facility, including cash from his wallet, clothing, and c1eclronies. The nursing facility compensated Mr. Reeves $200 tor stolen clothing, but did not compensate him for any other stolen items.
42. At no time did the Defendants offer, inform, or provide to Mr. Reeves his options for community-based services upon his admission to the nursing facilities. Beginning roughly one year ago, Mr. Reeves began asking the staff at Renaissance at Midway to inqLlire abocl! the possibility of moving to the coml11unity. Allhough staff promised to do so, they never followed up with Mr. Reeves.
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43. Mr. Reeves believes his life would improve ifhe were able to live in the communityaguin. Mr. Reeves would like to work, live on his own and become economically sel f-sumei ent.
44. Mr. Reeves is capable of living in the community, which is, for him, the most integrated setting appropriate to his needs. However, under Defendants' system of care, Mr. Reeves has only been offered long-term care in an institutional, nursing facility setting.
45. Plaintiff KENYA LYLES is a thirty-two-year-old woman who is a resident of the Califomia Gardens Nursing and Rehabilitation Center in Chicago, Illinois.
46. Ms. Lyles hag seizures, high blood pressure, kidney failure for which she receives dialysis. She is eligible for and receives Medicaid.
47. Despite her disabilities, Ms. Lyles does not require extensive nursing care or oversight. The health care and personal assistance services she receives in the nursing facility could he provided in the community. Defendants provide funding fi.Jr disability services in the commlmity for a limited number of people situated similarly 10 Ms. Lyles without conditioning receipt of such services on placement in a nursing facility.
48. Ms. Lyles is from Chicago. She graduated Irom Philips High School and attended Southem lllinois University.
4<). Ms. Lyles was admitted al Califol1lia Gardens following a stay at South Shore Hospital, where she had been tr<!ated for a kidney-rdated condition. Upon admission, Ms. Lyles was told she would be in the nursing facility f'Jr only one or Iwo w<!eks.
50. Aller one or two weeks, Ms. Lyles was ready to leave Califomia Gardens, and her sister had come to the premises 10 pick her up and take her home. However, Ihe on-site nursing home social worker told Ms. LyiO!s that if she left, she would no longer receive necessary medications. Against her personal desires, Ms. Lyles remained in the facility.
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51. Ms. Lyles linds living at California Gardens to be "hectic," and is uncomfortable with the number of people. She has Jound random persons going through her room and looking tiu-ough her personal items and has also had personal items stolen.
52. Ms. Lyles must share a room and bathroom with three roommates. There is a communal shower down the hall which Ms. Lyles docs not usc heeause other residents sometimes urinate and defecate in tile shower. Instead, she washes herself in her bathroom and showers only when she visits her family.
53. During tile day at California Gardens, Ms. Lyles sits in her room and watches television. She does little else there.
54. No one at California Gardens has ever discussed community living options with Ms. Lyles, either upon admission or aflerwards.
55. Ms. Lyles is capable of living in the community, which is, Jor her, the most integrated setting appropriate to her needs. However, under Defendants' system or care, Ms. Lyles has only been offered long-tern1 care in an institutional, nursing facility setting.
56. Plaintiff DWIGHT SCOTT is a lilty-four-year-old man who currently resides in Glenshire Nursing and Rehabilitation Center, a nursing facility located in Richton Park, II1inois.
57. Mr. Scott has paral ysis on his left side 0 I' his body as a resnlt 0 ra stroke and nses
a wheelchair. He is eligible for and rec",ives Medicaid. 58. Despite his disabilities, Mr. Scott does not require extensive nursing care or
oversight. The healthcare and personal assistance services he receives in the nursing facility could be provided in tile community. Defendants provid" funding for disahility services in the community for a limited numher of people situated similarly to Mr. Scot( without conditioning receipt of such services on placemcnt in a nursing facility.
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59. Before entering the nursing facility, Mr. Scott worked as a regional supervisor at a medical supply company. Mr. Scott managed delivery operatioll~ for the region and was based in Hammond, Indiana. Hc attcndcd high school in Chicago and graduated from Washhurn Trade School.
60. On or ahout Fchruary 15,2006, Mr. Scott had a stroke while driving on the highway. Mr. Scott was treated at various hospitals and ultimately referred to Schwah Rehabilitation Hospital in Chicago. At Schwab, Mr. Scott began to undergo physical therapy treatment for paraly~is (hat resulted fTOlll his stroke.
61. Following rehabilitation, Mr. Scott was admitted to Glenshire Nursing and Rchabilitation Center, where he has lived ever sincc.
62. Defendants did not ofrer, inlbrm, or provide to Mr. Scott his options Ibr C()lllllllllli(y-based services upon admission to the nursing facility.
63. When Mr. Scott arrivcd at Glcllshirc, he was assigned a room on the second floor in a wlit for residents recovering from strokes. When the unit began undergoing renovations,
Mr. Scott was moved to thc Iburth 1100r or (he facility, which houses residents with psychiatric
disahilities and Alzheimer's, even though Mr. Scott has no such disabilities. 64. While at Schwab Rehabilitation Hospital, Mr. Scot( was progressing well under
an aggressive regimen of physical therapy. He has since languished at the nursing facility and his joints are becoming stiff, making mobility increasingly di rricult.
65. Mr. Scott seeks Lo live in a community setting in his own apartment, preferably in a cOlllmunity for senior citizcns, with petiodic nursing services, so he could maintain his indep"mdence.
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66. Mr. Sco(l is capable oCliving in the community, which is, for him, the most integrated setting appropriate to his needs. However, under Defendants' system of care, Mr. Scott has only been offered long-term care in an institutional, nursing ('aeility setting.
67. Defendant ROD R. BLAGOJEVICH is the Govcrnor and chief executive officer o('the State 0(' 1IIinois. He is responsible for directing, supervising and controlling the executive departments of state governmenl. Govemor 8lagojevieh is ultimately responsible for ensuring that I11inois operates its long-term care system for people with disahilities in conlonnancc with federal law. He is sued in his onicial capacity and only for prospective injunctive relief.
68. Defendant CAROL L. ADAMS is the Secretary of the Illinois Deparlmenl of Human Services ("DHS"), the slate agency responsible lor administering I1linois' long-term earc system I()f peoplc with disabilitics. Secretary Adams is responsible for the oversight, supervision and control o(,DHS and its divisions and is ultimately rcsponsible for cnsuring that DHS' services for people with disabilities are provided in cOnfOrnlallCe wilh federal law. She is sued in her onidal capacity and only for prospective injunctive relief:
69. Defcndant BARRY S. MARAM is the Dircetor ofthc lllinois Dcpartment of Healtheare and Family Services, the "single state agency" that operates JIlinois' Medicaid program. See 42 U.S.c. § I 396a(a)(5). Defendant Maram is responsible for oversight, supervision, control and implcmcntation 01' Illinois' Medicaid program and assuring its compliance with federal law. He is sued in his official capacity and only for prospective injunctive relief.
70. Defendant ERIC E. WHITAKER, M.D., is the Director of the Illinois Department of Public Hcalth, the state agency responsible for licensing, regulating, and inspecting all nursing facilitics in I11inois to delennine compliance of Illinois' long-tenn care
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program with federal law, including M~dicaid. See 42 U.S.C. § !396a(a)(9). He is sued in his official capacity and only for prospective injunctive relief. IV. CLASS ACTION Al.LEGATIONS
71. Pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure, Plain(iffs bring this action as a class action on bchalfofall Medicaid-eligible adults with disabilities in Cook County, l1Iinois, who arc being, or may in tbe future be, unnecessarily conJilled (0 nursing facilities and with appropriate supports and scrvices may be able to live in a community setting.
72. The size ofthe class is so numerous that joinder is impracticable. Over 20,000 Medicaid-eligible IHlrsing facility residents live in Cook County. According to (he Centers for Medicare and Medicaid Services, over 7,000 Cook County nursing facility residents have said they would rather live in the community, and Plaintiffs believe (he actual number may be higher. Joinder is also impracticable because the class is not static and becallse class members lack the knowkdge and financial means to maintain individual actions.
73. There arc qLlestions onaw and fact common to the class, and the claims of the named Plaintiffs are typical of those oftlIe class. These claims include:
a. whether Defendants violate (he integration mandates or (he ADA and Section 504 by
requiring Plaintiffs and class members to be segregated and confined to nursing facilities in order to receive long-ternl care services, rather (han providing those services ill appropliate, integrated settings in their homes and eoml1111nities; b. whether Defendants fail to ensure (hat comprehensive, appropriate assessments including those required under the Nursing Home Reform Act and Medicaid - are conducted to determine the need for institutionalization for class members at risk of institutionalization or class members' discharge potential;

Case 1:07-cv-04737 Document 1 Filed 08/22/2007 Page 13 of 28
•
e. whether Derendants fail effectively to inform Plaintiffs and class members of community-based long-ternl care alternatives to nursing facilities; and
d. whether Defendants fail to provide nursing facility residcnts with community longtenn care services with reasonable promptness, as required under federal Medicaid law.
74. The representative parties will fairly and adequately protect the interests of the class. The named Plaintiffs will vigorously represent the interests of unnamed class members, and allmemhers of the proposed class will bencl1t from the efforts of the named Plaintins. The interests orthe proposed class and the named Plaintiffs aTe identical.
75. Defendants, their agents, employees, and predecessors and successors in office have acted or will act on grounds generally applicable to the class, therehy making injunctive or declaratory relief appropriate to the class as a whole. V. STATEMENT OF FACTS
A, History ofthe "integration Mandates" ofthe Americans with Disabilities Act and Section 504 of the Rehabilitation Act
76. On July 26, 1990, President George H.W. BlLsh signed the ADA, 42 U.S.c. §§ 121 OI-121~ I, estahlishing the most important civil rights laws for persons with disabilities in our nation's history.
77. In enacting the ADA, Congress was particularly concerned about the unnecessary segregation and institutionalization of people with disabilities and the resulting lack or full participation in and access to community services and activities. 11 found that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such fonns of discrimination continue to be a serious and pervasive social problem" 42 U.S.C. § 12 I 01 (a)(2).
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•
78. Congress further found that "discrimination against individuals with disabilities persists in ... institutionalization ... and access to public services." 42 U.S.c. § 12101(a)(3).
79. Tille IT oflhe ADA prohibits public entities, including Defendants, from discriminating against persons with disabilities whom they serve. 42 lJ.S.c. §§ 12131-32.
80. Regulations inlplementing the ADA require that "a public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs 01" people with disabilities. 28 C.F.R. § 35.130(d). Section 504, on which the ADA is modeled,
contains an identical requirement. 28 c.r.R. § 4I.SI(d).
81. Segregation oCpersons with disabilities from society as a result of unnecessary institutionalization constitutes discrimination under Title II. Olmstead, 527 U.S. at 587. Unnecessary institutionalization is discriminatory because, the Supreme Court noted, "institLLtional placement oCpcrsons who can handle and bcncl1t from community settings perpetuates unwarranted assumptions that persons so isolated are incapahle and unwortby of participating in community life" and "confinement in an institution severely diminishes the everyday life activities of individuals, including family options, social contacts, economic independence, educational advancement, and cultural enrichment" Ttl at 600.
S. The Statc-F'edera.l Medicaid Program 82. Medicaid is ajoint federal and state program that provides medical services to low-income persons pursuant to Title XTX of the Social Security Act. 42 U.S.c. §§ 13961396v. 83. States are not required to participate in Medicaid, but ifthey do, they must comply with the requirements of Title XIX and its implemcnting rcgulations promulgated by the U.S. Department of Health & Human Services ("HHS"). States who participate must further
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~ubmitto HHS a state Medicaid plan that fulfills the requirements or Title XIX. 42 U.S.C. ~ 1396a(a).
84. One of the primary purposes of Medicaid is "to fumish ... rehahilitation and other services to help families and individuals attain or retain capability for independence and self care ...." 42 U.S.c. § 1396. Each participating Stale's Medicaid plan must contain reasonable standards to determine the extent of services needed to obtain these objectives. 42 U.S.C. § 1396a(a)(l7).
85. Individuals are eligible for Medicaid ifthey are either "categorically needy" or "medically needy." Individuals who, for example, receive Supplemental Security Income ("SST") henefit~ are deemed "categorically needy."
86. Certain services are mandatory under Title XIX and must he provided to all persons considered "categorically needy" 42 U.S.C. § I396a(a)(1 O)(A)(i) (incorporating 42 U.S.C. ~ I396d(a)(IH5), (17), (21». "Mandatory" services include services in a skilled nursing f"aci1ity. Til.
87. Medicaid also allows states to provide, at their option, in-home and community services, including home healtheare services, private-duty l1L(rsing, home and community care for functionally disabled elderly individuals, personal care services, and any other medical and remedial care recognized under state law. 42 U.S.c. § 1396d(a). Once a state elects to provide an optional service, it becomes part of the state's Medicaid plan and is subject to the requirements of Title XIX. 42 U.S.c. § 1396a(a)(I). TiUe XIX also requires that states ensure "the inclusion ofh(lme health services for any individual who, under the state plan, is entitled to nur~ing facility services." 42 U.S.C. § 1396a(a)(I0)(D).
~8. Additionally, Medieaid allows states to waive certain requirements in order to enable people with disahilities to avoid institutionalization and receive long-term care services in
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the community. 42 U.S.c. § 1396n(c). These programs are known as Home and Community Based Services "waivers."
C. The Nursiug Home Reform Act 89. The Nursing Home Refonn Act ("NHRA"), which is part of Til1e XIX, was enacted in 1987 to address the widespread prohlem of warehousing people with disabilitics in nursing facilities. As part of their Medicaid plans, States must ensure that the care and serviccs provided hy nursing facilitics to Medicaid-eligible individuals are consistent with thc NHRA's
requirements. 42 U.Sc. &1396a(a)(28)(A).
90. Under the NHRA, eaeh nursing racility resident, upon admission and periodically thereafter, must be provided with a comprehcnsive assessmcnt of his or her functional capacity, including the resident's potential for dischargc to the c(Jmmunity. The resident mllst he involved
in the assessment process, and the asscssment must he updated quarterly. 42 U.s.c. &1396r;
42 C.F.R. § 483.20. Residents mnst also, when appropriate, receive "sufflcient preparation" to cnsure their "safe and orderly transfer or dischargc" from the nursing facility. 42 C.F.R. ~ 483.12(a)(7).
91. The NHRA further addresses the prohlem of unnecessary institutionalization or wareh(Jllsing of people with psychiatric or dcvelopmental disabilities innllrsing homes. To this end, special pre-admission screening and resident reviews are required for all individuals believed to have a psychiatric or developmental disability to detcrmine whether a nursing facility level of care is needed, and whether these samc services could be provided in thc community. 42 U.S.c. ~~ 1396r(b)(3)(F)(i), 1396r(e)(7)(A) & (8); 42 C.F.R. §~ 483.112, 483.12R, 483.132, 483.134, 483.136.
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D. Illinois' Long-Term Care System for People with Disabilities 92. lllinois participates in Medicaid and, as such. offers and provides nursing facility servic~s to Medicaid-eligible peopk with disabilities who qualify for long-tellli care. Defendants provide these services through privately owned and operated nursing facilities, many of which are for-profit businesses. 93. Defendants also provide in-home and community services to persons who would otherwise qualify for nursing facility services. These programs are also funded under Medicaid, either Lmder the HOllie Health option or through a HOllie and Community Based Services waiver. Under these programs, people with disabilities live independently with community-based supports and services, including healthcare, personal allendant care, and other long-tenn care services otherwise found in nursing facilities. 94. For sOllie people with disabilities served ill the community, Defendants contract with private home health agencies to provide in-home community long-term care. Other people with disabilities served in the community hire their own caregivers and attendants, whose wages arc paid by Defendants. DHS has recognized that the cost of these community programs is "far below the average annual nursing home cost." 95. Despite the fact that many, perhaps most, seniors and people with disabilities prefer to live in the community, Defendants have dedicated the vast majority of Illinois' longteml care funding - nearly 80% - to nursing facility and other institutional services - one of the highest rates in the nation. For people with physical disabilities, Tllinois' per capita spending on nllrsing (acilities is nearly four times that for home and community care. As a reSLll!, community services are chronically unavailahle to many who need and want them, effectively compelling institutionalization ofpeople with disabilities.
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R. Nursing Facilities in Cook County 96. According to the J1Iinois Department orpublic Health, 241 nursing facilities operate in Cook County, of which 190 are certified to serve Medicaid long-term care recipients. Four of these facilities have bdween 300-400 residents, another 38 have between 200-300 residents, and 112 have bdween 100-200 residents. 97. Over 31,000 people in Cook County live in nursing facilities. Over 20,000 have Mcdicaid as their primary payment source and over 7,400 -nearly 24% - are under age 65. Tn six oJ'the len largest facilities, the majority of residents are not elderly. 98. Most nursing facility residents arc admitted fi-om acute care hospitals or from their own hOlTItls because they lack access to in-home heallhcare. Most individuals are not assessed upon admission to ddennine whether services could be provided in their existing homes Or in the cOl1ll1llLllity. 99. Once Medicaid-eligible individuals are admitted to nursing facilities, they must turn over most oi'their assets and income, including Supplemental Security Income from Social Security, to the state and nursing facility. Residents receive an allowance of $30.00 per month. As a reslllt, residents are oft.en unable to continue paying rent or mortgages and accordingly lose the home they had before cntering the nursing facility. Residents also lack resources to obtain community services and housing on their own. They orren cannot alTord even hasic transportation costs to leave the facility, whether to pursue community services or for any other purpose. 100. Nursing fa.cilitics are not real homes or even home-like, but rather are segregated institutions housing large numbers ofunrelated persons, both elderly and non-elderly, in congregate settings, wherc residents must share bedrooms, bathrooms and living spaces with strangtlrs. A June 12,2000 DRS mcmorandum reported that fOlmer nursing facility residents

Case 1:07-cv-04737 Document 1 Filed 08/22/2007 Page 19 of 28
"almost universally describeldJ their transition from these institutions back into the community as 'being freed from jail'"
101, Although the majority of nursing facility residents have primarily physical disabilities, many rcsidents have mental illness as their primary diagnosis, and some are primarily developmentally disabled, Nursing facilities ncither provide, nor arc dcsigned to provide, significant treatmcnt, rehabilitation and therapy for these individuals, Their care is primarily custodial, despite the residents' need for treatment or rehabilitation,
102, Many nursing facility residents are, for the most part, neither integrated into nor Palt of the communities in which they live. Residents have limited access to the community and it is difficult, ifnot impossible, for them to participate in community activities such as government, churches or cl ubs,
103, Nursing facility residents arc ollen denied meaningful access to educational and employment opportunities by virtue of the congregate environments in which they live and the limited supports that arc provided to them.
104, MallY nursing facilities resemble hospitals. They have nurses' stations and often have locked doors, curfews and, at times, guards posted to monitor persons entering and leaving the facility.
105_ There is little, if any, privacy for nursing facility residents who share rooms and bathrooms with up to JIve residents whom they did not know previously and with whom they did not choose to live. In some facilities, entire wards share bathrooms and shower facilities, Medications are often dispensed publicly, with residents waiting in line,
106_ Nursing facility residents (lften lack their own telephones, and are often restricted in the use of the nursing facility telephones.
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107. Nursing facilities olTer few places for residents to gather or safeguard their personal bclongings. Many residents report that their personal property has been stolen or damaged.
108. Nursing facility residents have little, ifany, choice on what to eat, when to eat, or with whom to cat.
109. Nursing facilities often cmploy restrictive practices SllCh as limiting telephone use hy rcsidents, limiting rcsidents' ability to come and go from the facility, confining residents to locked floors or wards, and utilizing mcdically-inappropriate referrals for short-term inpaticnt psychiatric admission.
F, Residents' Desire and Ability to Live in the Community 110. The Centcrs for Medicare and Medicaid Services of the U.S. Department of Health and Human Scrviees ("eMS") publishes quarterly data on nursing facility residents. This data, called the "Minimum Data Set" ("MUS"), is collected by nursing facilities and sent to each state's Medicaid single state agency, which then sends it to eMS. See 42 C.F.R. ~ 483.20(c). 111. The MDS reports that in Cook County, 60.9% ofresidents under age 65, and whose care is not paid fbr by Medicare, have expressed or indicated to their nursing facility that they want to live in the community instead of a nursing facility. For such residents over age 65, 31.4% have told their nursing facility they desire to livc in thc community. There is reason to believe the actual number may be far higher. The majority ofthcsc residents are Medicaideligible. 112. Many nursing facility residents could he served safely and appropriately in the community irlong-term care and services were available there. When appropriate supports and services have been provided, persons with disabilities, of all ages and multiple levels of
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disability, have succcssfully moved into or remaincd in thc community in order to live more independently,
G. Defendants' Failure to Serve Class Members in the Community 1J3. Defendants have not ensured that nursing facility residents are properly evaluated, whether prior to admission or thereailcr, to dctennine whether they could be served adequately and sa rely in the community. The nursing facilities with which Defendants contract to provide long-tenll care serviecs routinely fail to conduct any meaningful evaluation or residents' ability to live in the community or any meaningful discharge planning. 114. Defendants, and the nursing facilities with whom they contract, routinely fail to provide residents with ill formation and choices on integrated, home- and cOJ11munity-hased long-tern) carc altematives. 115. Defendants have failed (0 provide Plaintim: and class members with integrated long-tern) care services in the eOll1ll) unity. Instead, Defendants administer Illinois' long-tenn care system in a manner (hat requires Plaintiff's and class members to submit (0 unnecessary, segregated nursing facility placement as a condition ofreceiving long-tenD care services. VI. CAUSES OF ACTION
Count I: Violations of the Americans with Disabilities Act 116. Plaintifls re-allege and incorporate Paragraphs 1-115 as if fully set forth berein. 117. Title II of the Americans with Disabilities Aet provides that "no qualified individual with a disability shall, hy reason of 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 such entity" 42 U.S.c. § 12132. 118. Each Plaintiff and class member is a "qualified individual with a disability" within the meaning of the ADA in that he or she has a physical and/or mental impaimlent that
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substantially limits one or more major Ii fe activities. Plaintiffs and class members meet the essential eligibility requirements for long-term care under Illinois' Medicaid program and are thus "qllalified."
119. Defendants arc pllblic agency directors responsible for operation of a public entity, pursuant to 42 U.S.c. §§ I213 I (l)(A) & (8).
120. Regulations implementing Title IT of the ADA require that a public entity administer its services, programs and activities in "the most integrated setting appropriate" to the needs of quaIi lied individ~lals with disabilities. 28 C.F.R. § 35.130(d).
121. The ADA's implementing regulations further provide that "a public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) that have the effect of suhjecting qualified individuals with disabilities to
discriminati on on the basis of disability; lor1(ii) that have the purpose or effect of defeating or
substantially impairing accomplishment ofthe objectives of the entity's program with respect to individuals with disabilities ...." 28 C.F.R. § 35.130(b)(3).
122. Defendants have required that Plaintiffs and class members be confIned 1lI11lecessarily in institutions, i.e., nursing facilities, rather than pemlit them to reside in the community in order to obtain long-term care services in violation ofthe ADA's integration mandate.
123. Further, Defendants have utilized eritelia and methods of administration that subject Plaintiffs and class members to discrimination on the basis of disability, including llllneeessary institutional.ization, by (I) failing to assess properly the services and supports (hat would enable Plaintin~ and class members to live in the community, (2) Jailing to inform Plaintiffs and class members, upon admission and thereafter, of community long-term care
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Case 1:07-cv-04737 Document 1 Filed 08/22/2007 Page 23 of 28 •
options, and (3) allocating resources for institutionallong-tenn care contrary to the desires and needs of people with disabilities.
124. Defendants' actions arc in violation of Title II of the ADA. Count II: Violations of Section 504 of the Rghabilitation Act
125. Plaintiffs re-allege and incorporate Paragraphs 1-124 as iffully set fortb herein. 126. Section 504 of the Rehabilitation Act states that "[n]o otherwise qualified person with disabilities shall, solely by reason of his or her disahility, he exchlded from participation in, be denied benefits ot: or be subjected to discrimination under any program or activity receiving fcdcral financial assistance." 29 U.S.c. § 794(a). 127. Defendants direct statc agencies that receive federal financial assistance. 128. Each Plaintiff and class member is a "qualified person with disabilities" within the meaning of Section 504, hecause they have physical and/or mental impairments that suhstantially limit one or more major life activities. Plainti ITs and class members meet the essential eligibility requirements for long tcrm care under Illinois' Medicaid program and arc thus "quali fled" 129. Regulations implementing Section 504 require that a puhlic entity administer its scrvices, programs and activities in "the most integrated setting appropriate" to the needs or qualified individuals with disahilities. 28 C.F.R. § 41.51(d). 130. Section 504's regulations prohihit recipients of federal financial assistance from "utili4ing] cliteria or methods of' administration ... (i) [tlhat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap [orl (ii) that have the purpose or erred of defeating or substantially impairing accomplishment or the objectives of the recipient's program with respect to handicapped persons." 45 C.F.R. § 84.4(h)(4); 28 c.P.R. § 41.51(b)(3)(I).
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131. Defendants have required that Plaintiffs and class members be confined. unnecessarily in institutions, i.e., nursing facilities, rather than the community in order to obtain long-term carc scrvices, in violation of Section 504's integration mandate.
132. Further, Defendants have utilized. criteria and. methods of administration that subject Plaintiffs and class mcmbcrs to discrimination on the basis of disability, including unnecessary institutionali"ation, by (1) failing to assess properly the services and supports lhal would cnable Plaintiffs and class members to live in the community, (2) failing to infonll Plaintiffs and class members, upon admission and tl1ereaHer, of community long-tenn care options, and (3) allocating resources for institutional long"tcrm carc contrary to thc desircs and needs of people with disabilities.
133. Dcfcndants' actions arc in violation of Seclion 504 of the Rehabilitation Act. Count III; Violations of Title XIX oCtile Sodal Security Act
134. Plaintiffs re-allcge and incorporate Paragraphs 1.133 as if fully set fllrth herein. 135. Plaintiffs and class members a.re eligible for Medicaid. 136. As participants in the federal-state Medicaid program, Defendants must comply with all applicable provisions of TitJe XTX of the Social Security Act, 42 U.S.c. §§ 1396-1396v, in (heir administration of Illinois' Mcdicaid program. A. Violations of the Nllrsing Home Reform Act 137. Title XiX ofthc Social Sccurity Act requires that each state's Medicaid plan "provide ... that any nursing /acility receiving payments under such plan must satisfy all the requirements of [(he Nursing Home Reform Act]." 42 U.S.C. § 1396a(a)(28)(A). 138. The Act requircs nursing facilities (0 conduct and implement comprehcnsivc assessmcnts and "sunicien( preparation" for residcnts' discharge /I'om (he facility if
* professionally appropriate. 42 U.S.C. 1396r(b)(3)(A); 42 C.F.R. §§ 483.12, 483.20.

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•
139. The Act further mandates special pre-admission screening and resident reviews for residents with mental illness or developmental disahilities. These cvaluations. which must hc conducted at admission and annually thercafter, must determine whether nursing facility level of care is required and whether such services could he provided in the community. 42 U.S .C. §§ 1396r(b)(3)(F), 1396r(e)(7)(A)&(B); 42 C.F.R. §§ 483.128, 483.132, 438.134 & 483.136.
140. Defendants have violatcd the rights of Plaintiffs and class members under the Act by railing to providt' or ensnrc provision of timely and comprehensive asscssments and quarterly reviews to de(ennine discharge potential and the approprialeness of community-based long-term care options.
B. Fa.ilure to Provide Services with Reasonable Promptness 141. Title XIX ofthc Social Security Act requircs thal Medicaid services be furnished to eligible individuals, and without dclay caused by the slale agency's a(lininistrative procedures. 42 U.S.C. § l396a(a)(8); 42 C.F.R. § 435.930(a). 142. Defendants' policies, practices, acts and omissions concerning administration of Illinois' long-term care progranl have denied or extensively delayed provision of medieallynccessary long-tcrm care scrvict's in the community that are otherwise available nnder the state Medicaid plan. As a result, Defendants have denied Plaintins and class members thc reasonably prompt provision of community long-term care services, in violation of the Social Security Act. C. I<'ailure to Provide Timely and Adequate Notice and Choice of Community
Care 143. Title XIX ofthe Social Security Act requires that any individual determined to need the level of care provided by a nursing facility must he infornlcd of feasible aItemativcs under the Slate's Home and Community Based Services ("HOBS") waiver and be given a choice between nursing facility or waiver services. 42 U.S.c. § 1396n(c)(2)(C).
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144. Illinois has HeBS waivers that provide a variety offeasihle alternatives to nursing facility care, including home-based and community long-ternl care.
145. Defendants have failed to infoml nursing facility residents, or ensure that residents are informed, of' feasible, integrated, community-based alternative services under the HeBS waivers, and have failed to provide residents a choice between such services, in violation ofTi(le XIX.
vn. RRQURSTRD RELIEF
WHEREFORE, Plaintirfs, individually and on hehalfofthe class, respectfully request that the Court:
A. Enter an order certifying the Plaintiff class; B. Declare that Defendants' failure to provide Plaintiffs with services in the mos(
integrated selling appropriate (0 their needs violates Tille IT or the Americans with Disahilities
Act, Section 504 of the Rehabilitation Act, Title XIX of the Socia.! Security Act, and the fcderal Nursing Home Care Act;
C. Enjoin Defendants to: (f) infonn Plaintiffs and class members (ha( they may he eligible f(lr community services and that they have the choice of such services; (2) provide comprehensive assessments, evaluations and screenings to determine Plaintiffs' and class members' eligibility for community services, both prior to and after admission to nursing facilities; (3) provide, as appropriate, Plaintiffs and class members with long-term care services and supports in the community and refrain from providing long-term care only in institutional sellings.
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Case 1:07-cv-04737 Document 1 Filed 08/22/2007 Page 27 of 28

D. and
E.

Award Plaintiffs their reasonable attorneys' fees, litigation expenses and costs; Grant such other relief as the Court deems just and proper.

Dated: August 22, 2007.

Respcc1fldJy submitted,
""""-;7:. /_ £.~

Daniel J. Zollner David Curkovie Regina A. Ripley ROSS, DIXON & BELL, LLP 55 West Monroe St, Suite 3000 Chicago, Illinois 60603 Tel: (312) 759-1920 Fax: (312) 759-1939
Max I.apertosa Kenneth M. Walden ACCESS LIVING OF METROPOLITAN CHICAGO 115 West Chicago Avenue Chicago, Illinois 60610 Tel: (312) 640-2100 Fax: (312) 640-2131

Edward B. Mullen ITT 3501 N. Southport Ave, Suite 206 Chicago, Illinois 60657-1435 Tel: (773) 322-8055 Fax: (312) 759-1939

Stephen F. Gold 125 S. Ninth Street, Suite 700 Philadelphia, Pennsylvania 19107 Tel: (215) 627-7100 Fax: (215) 627-3183

Laura A. Miller Karen T. Ward EQUIP FOR EQUALITY 20 North Michiga.n Avenue, Suite 300 Chicago, II. 60602 Tel: (312) 341-0022 Fax: (312) 341-0295

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Case 1:07-cv-04737 Document 1 Filed 08/22/2007 Page 28 of 28

Benjamin S. Wolf Gail Waller
THE ROGER BALDWIN FOUNDATlON OF THE AMERICAN CIVIL UBERTIES UNION OF lLUNOTS
180 North Michigan Avenue, Suite 2300 Chicago, Illinois 60601 Tel: (312) 201-9740 Fax: (312) 201-9760

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 </s> Case 1:07-cv-04737 Document 10 Filed 08/30/2007 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LENIL COLBERT, et al., for themselves and all others similarly situated,
Plaintiffs, v.
ROD R. BLAGOJEVICH, et al., Defendants.

) ) ) ) No. 07-C-4737 ) ) JUDGE LEFKOW ) MAGISTRATE JUDGE VALDEZ ) ) )

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION TO MAINTAIN A CLASS ACTION

I. INTRODUCTION

Plaintiffs, on behalf of themselves and all those similarly situated, bring this action

seeking declaratory and injunctive relief under the Americans with Disabilities Act (“ADA”), 42

U.S.C. § 12132, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), and the

Medicaid provisions of the Social Security Act, 42 U.S.C. §§ 1396-1396v, including the Nursing

Home Reform Act, 42 U.S.C. § 1396a(a)(28)(A). Plaintiffs seek this relief because they have

been needlessly and systemically institutionalized and isolated in nursing facilities and denied

the opportunity to live in integrated settings in their communities, in violation of federal law. As

the U.S. Supreme Court held in Olmstead v. L.C., 527 U.S. 581 (1999), the unnecessary

institutionalization of people with disabilities is discrimination under the ADA because

“institutional placement of persons who can handle and benefit from community settings

perpetuates unwarranted assumptions that persons so isolated are incapable and unworthy of

participating in community life” and because “confinement in an institution severely diminishes

the everyday life activities of individuals, including family options, social contacts, economic

independence, educational advancement, and cultural enrichment.” Id. at 600.

Case 1:07-cv-04737 Document 10 Filed 08/30/2007 Page 2 of 15
Plaintiffs seek certification of a class consisting of all Medicaid-eligible adults with disabilities in Cook County, Illinois, who are being, or may in the future be, unnecessarily confined to nursing facilities and with appropriate supports and services may be able to live in a community setting. See Compl. ¶ 71. For the reasons set forth below, the Court should certify this class under Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure. II. ARGUMENT: CLASS CERTIFICATION IS APPROPRIATE
A. PLAINTIFFS MEET THE REQUIREMENTS OF RULE 23(a) Under Rule 23(a), a class is appropriate when 1) its members are so numerous that joinder of claims is impracticable, 2) there are questions of law or fact common to the class, 3) the claims of the representative parties are typical of the class claims, and 4) the representative parties and their counsel will fairly and adequately protect the interests of the class. Fed. R. Civ. Proc. 23(a). In addition, the Seventh Circuit has recognized two additional implied requirements under Rule 23(a): the class must be readily identifiable and the named plaintiffs must be part of the class. Alliance to End Repression v. Rochford, 565 F.2d 975, 977-78 (7th Cir. 1977); Gomez v. Illinois State Bd. of Educ., 117 F.R.D. 394, 397 (N.D. Ill. 1987). In determining class certification, courts “recognize[] that Rule 23(a) should be liberally construed to support its policy of favoring the maintenance of class actions.” Wallace v. Chicago Hous. Auth., 224 F.R.D. 420, 423 (N.D. Ill. 2004) (citing King v. Kansas City S. Indus., 519 F.2d 20, 25-26 (7th Cir. 1975)). Additionally, courts must accept the Plaintiffs’ claims as true and do not look to the merits of the case. Pope v. Harvard Bancshares, 240 F.R.D. 383, 387 (N.D. Ill. 2006) (citing Hardin v. Harshbarger, 814 F. Supp. 703, 706 (N.D. Ill. 1993) (citing inter alia Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974))); see also Gomez, 117 F.R.D. at 397. As shown below, the proposed class easily satisfies each of these requirements. See
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generally Ligas v. Maram, No. 05-C-4331, 2006 U.S. Dist. LEXIS 10856, *18 (N.D. Ill. Mar. 7, 2006) and Williams v. Blagojevich, No. 05-C-4673, 2006 U.S. Dist. LEXIS 83537 *8 (N.D. Ill. Nov. 13, 2006) (certifying plaintiff classes under claims and facts comparable to those here).
1. Joinder Would be Impracticable Although commonly referred to as the “numerosity” requirement, “the crux of the numerosity requirement is not the number of interested persons per se, but the practicality of their joinder into a single suit.” Arenson v. Whitehall Convalescent & Nursing Home, 164 F.R.D. 659, 663 (N.D. Ill. 1996) (quoting Small v. Sullivan, 820 F. Supp. 1098, 1109 (S.D. Ill. 1992)). While the number of class members is an important factor, others include “judicial economy, geographic diversity of class members, and the ability of individual class members to institute individual lawsuits …” Id.; see also Riordan v. Smith Barney, 113 F.R.D. 60, 61 (N.D. Ill. 1986) (“[T]he test for impracticability of joinder is not simply a test for the number of class members.”) Under these guidelines, this Court has certified classes with as few as 29 members. Riordan, 113 F.R.D. at 61; see also Swanson v. American Consumer Industries, 415 F.2d 1326, 1333 (7th Cir. 1969) (40 members sufficient); Pope, 240 F.R.D. at 387 (“where the membership class is at least 40, joinder is impracticable and the numerosity requirement is met.”) Additionally, in determining the number of the members in the proposed class, “it is appropriate for the Court to make [. . .] common sense assumptions[.]” Fields v. Maram, No. 04-C-0174, 2004 U.S. Dist. LEXIS 16291, *13 (N.D. Ill. Aug. 16, 2004) (Minimum Data Set of the Centers for Medicare and Medicaid Services of the U.S. Department of Health and Human Services (“CMS”) established numerosity of class); Murray v. E*Trade Fin. Corp., 240 F.R.D. 392, 396 (N.D. Ill. 2006). The proposed class here is clearly too numerous to make joinder practicable. According
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to the Illinois Department of Public Health, over 20,000 people live in nursing facilities in Cook
County under the State’s Medicaid program.1 According to the Minimum Data Set (MDS)
maintained by CMS,2 over 7,400 nursing home residents in Cook County have stated they would
rather live integrated in the community.3 See http://www.cms.hhs.gov/states/mdsreports/res2.asp
(visited Aug. 9, 2007). It is appropriate for the Court to assume that a majority of these residents
receive Medicaid, commensurate with the nursing facility population as a whole. Although not
all Medicaid-eligible nursing facility residents may be capable of living in the community, on
motion for class certification, the Court may infer from the number of residents who have
expressed an interest in being integrated in the community that the number of residents who are
appropriate for community services makes joinder impracticable. See Fields, 2004 U.S. Dist.
LEXIS 16291, *13; Ligas, 2006 U.S. Dist. LEXIS 10856, at *18 (noting that while “not all of
1 The Illinois Department of Health website, www.idph.state.il.us, lists each nursing facility and the number of its residents who receive Medicaid. Plaintiffs calculated this number by adding the total number of Medicaid recipients for each facility in Cook County.
2 The CMS website describes the Minimum Data Set as follows:
The Minimum Data Set (MDS) is part of the federally mandated process for clinical assessment of all residents in Medicare or Medicaid certified nursing homes. This process provides a comprehensive assessment of each resident's functional capabilities and helps nursing home staff identify health problems. Resident Assessment Protocols (RAPs), are part of this process, and provide the foundation upon which a resident's individual care plan is formulated. MDS assessment forms are completed for all residents in certified nursing homes, regardless of source of payment for the individual resident. MDS assessments are required for residents on admission to the nursing facility and then periodically, within specific guidelines and time frames. In most cases, participants in the assessment process are licensed health care professionals employed by the nursing home. MDS information is transmitted electronically by nursing homes to the MDS database in their respective States. MDS information from the State databases is captured into the national MDS database at CMS.
http://www.cms.hhs.gov/states/mdsreports/res3.asp (visited Aug. 28, 2007.) 3 Given that these figures are based on facility self-reporting, see supra note 2, supra, Plaintiffs believe the actual number of residents who want to live in the community may be higher.
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these individuals could live or wish to live in the community, this court may infer based on common-sense that there are enough individuals [. . .] who qualify for long-term care, could live in the community, and want to do so as to make joinder impractical.”). Therefore, based on class size alone, joinder is clearly impracticable. Wallace, 224 F.R.D at 427 (“the numbers alone are dispositive of the impracticability of joinder.”) (quoting Thilllens, Inc. v. Community Currency Exchange Ass’n, 97 F.R.D 668, 677 (N.D. Ill. 1983)).
Other factors indicate impracticability of joinder. First, the proposed class members are Medicaid recipients and, as such, do not have the ability or means to bring individual lawsuits. Arenson, 164 F.R.D. at 663 (citing Tenants Ass’n for a Better Spaulding v. U.S. Dep’t of Hous. and Urban Dev., 97 F.R.D. 726, 729 (N.D. Ill. 1983) (“Class members who are residents of a nursing home may also lack the ability to pursue their claims individually.”)). In addition, this case includes future class members who, by their very nature, cannot be readily identified at the present time. Gomez, 117 F.R.D. at 399 (“[N]umerosity is met where, as here, the class includes individuals who will become members in the future.”) (emphasis in original). Accordingly, Plaintiffs easily meet the requirements of Rule 23(a)(1).
2. There are Questions of Law and Fact Common to the Class To satisfy the commonality requirement of Rule 23(a)(2), it is sufficient to have “[a] common nucleus of operative fact” between the class members’ claims. Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). As such, a class action will not be defeated simply because there is some variance in facts alleged among class members. Id. at 1017. Additionally, “[w]here a defendant’s standardized conduct is at issue, this court does not require that the putative class members all suffer the same injury[.]” Ligas, 2006 U.S. Dist. LEXIS 10856 at *11 (citing Rosario, 963 F.2d at 1018); see also Williams v. Blagojevich, No. 05-C-4673, 2006 U.S.
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Dist. LEXIS 83537, at *8 (N.D. Ill. Nov. 13, 2006).4 Instead, the court looks at “the uniformity of the defendant’s conduct toward the potential members and the plaintiff’s legal theory.” Ligas, 2006 U.S. Dist. LEXIS 10856 at *11 (citing Rosario, 963 F.2d at 1018).
The proposed class members are Medicaid-eligible adults with disabilities who, as a result of Defendants’ system-wide practices, are or in the future may be unnecessarily and unlawfully confined to nursing facilities. As a result of this common predicament, there are questions of law and fact that are common to the class, and Defendants have committed common legal violations against members of the proposed class. These include: violations of the integration mandates of the ADA and Section 504; failing to ensure that comprehensive, appropriate assessments – including those required under the Nursing Home Reform Act and Medicaid – are conducted to determine whether class members require institutionalization; failing effectively to inform Plaintiffs and class members of community-based long-term care alternatives to nursing facilities; and failing to provide nursing facility residents with community long-term care services with reasonable promptness, as required under Medicaid. In a case raising similar claims on behalf of institutionalized residents with disabilities, this Court held that “standardized conduct toward proposed class members [. . .] has been considered sufficient to satisfy commonality.” Ligas, 2006 U.S. Dist. LEXIS 10856 at *11. The same result should obtain here.
Additionally, the discriminatory nature of Defendants’ conduct supports class certification. Discrimination is often inherently class-based. See Robert E. v. Lane, 530 F. Supp.
4 See also Lightbourn v. County of El Paso, 118 F.3d 421, 425 (5th Cir. 1997) (“The commonality test is met when there is at least one issue, the resolution of which will affect all or a significant number of the putative class members.”) (citations omitted); Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1994) (commonality met where “named plaintiffs share at least one question of fact or law with the grievances of the prospective class.”); Marisol A. v. Guiliani, 126 F.3d 372, 375 (2d Cir. 1997) (class must “share a common question of law or fact.”)
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Case 1:07-cv-04737 Document 10 Filed 08/30/2007 Page 7 of 15
930, 944 (N.D. Ill. 1980) (case alleging civil rights violations represents a “prototypical candidate” for class certification). Thus, where it is alleged that defendants have engaged in broad discriminatory policies affecting numerous persons, “courts have held that the commonality requirement is satisfied.” Fields, 2004 U.S. Dist. LEXIS 16291 at *21.
Defendants’ policies and practices here are the very type of conduct for which class certification is appropriate. The U.S. Supreme Court has held that the unnecessary and unwanted segregation and isolation of people with disabilities in institutions constitutes disability-based discrimination under the ADA. Olmstead, 527 U.S. at 587. Defendants have engaged in broad discriminatory policies and practices that serve to isolate individuals with disabilities unnecessarily in nursing facilities. And “[w]here ‘broad discriminatory policies and practices constitute the gravamen of a class suit, common questions of law or fact are necessarily presumed.’” Hispanics United of DuPage County v. Vill. of Addison, 160 F.R.D. 681, 688 (N.D. Ill. 1995) (quoting Midwest Cmty. Council v. Chicago Park Dist., 87 F.R.D. 457, 460 (N.D. Ill. 1980)). See also Fields, 2004 U.S. Dist. LEXIS 16291 at *22; Gomez, 117 F.R.D. at 399 (quoting Edmondson v. Simon, 86 F.R.D. 375, 380 (N.D. Ill. 1980) (“Where an across-the-board or permeating policy of discrimination is alleged in a class action, commonality is satisfied.”) Therefore, the proposed class easily satisfies the commonality requirement.
3. The Named Plaintiffs’ Claims are Typical of Those of the Class Rule 23(a)(3), known as the “typicality” requirement, is met when the named plaintiffs’ claims “arise[] from the same event or practice or course of conduct that gives rise to the claims of other class members and … [are] based on the same legal theory.” In Re Sulfuric Acid Antitrust Litig., No. 03-C-4576, 2007 U.S. Dist. LEXIS 20380 at *12 (N.D. Ill. March 21, 2007) (quoting De La Fuente v. Stokely-Van Camp, 713 F.2d 225, 232 (7th Cir. 1983)). To satisfy this requirement, the proposed class members need not have suffered precisely the same injury as the
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Case 1:07-cv-04737 Document 10 Filed 08/30/2007 Page 8 of 15
named plaintiffs. Rosario, 963 F.2d at 1018 (citing De La Fuente, 713 F.2d at 232). See Pope, 240 F.R.D. at 389 (quoting Gaspar v. Linvatec, 167 F.R.D. 51, 57 (N.D. Ill. 1996) (“Typical does not mean identical, and the typicality requirement is liberally construed.”)). Therefore, in analyzing a class under Rule 23(a)(3), the courts merely “look to the defendant’s conduct and the plaintiffs legal theory.” Rosario, 963 F.2d at 1018 (citing De La Fuente, 713 F.2d at 233).
Here, the named plaintiffs are Medicaid-eligible adults in Cook County who reside in nursing facilities in order to receive long-term care and services, regardless of the fact that they are able to live in the community – just as are members of the proposed class. Accordingly, the named plaintiffs and the proposed class members are being subjected to the same discriminatory practice and share the same deprivation of federal rights. As such, Plaintiffs have met Rule 23(a)’s typicality requirement.
4. The Named Plaintiffs and their Counsel Will Fairly and Adequately Protect the Interests of the Class______________________________
Rule 23(a)(4) contains two requirements: first, that the named plaintiffs adequately and fairly represent the interests of the proposed class (including that the named plaintiffs’ interests not be antagonistic to those of the class); and second, that the named plaintiffs’ counsel adequately represent the class. As long as the above requirements are met, “[t]he adequacy threshold is a low one.” Wallace, 224 F.R.D. at 429.
a) The Named Plaintiffs’ Interests are not Antagonistic to Those of the Class___________________________________________
In analyzing the ability of the named plaintiffs to represent the class, courts look to whether the named plaintiffs have “sufficient interest in the outcome to ensure vigorous advocacy,” Rosario, 963 F.2d at 1018, as well as any interests “antagonistic to the interests of the class.” Riordan v. Smith Barney, 113 F.R.D. 60, 64 (N.D. Ill. 1986). In essence, “the interests of
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Case 1:07-cv-04737 Document 10 Filed 08/30/2007 Page 9 of 15
the named plaintiffs must be coextensive with those of the absentee class members.” Gomez, 117 F.R.D. at 402. Courts may deny certification based on grounds of antagonism only if that antagonism “goes to the subject matter of the litigation.” Riordan, 113 F.R.D. at 64. Potential conflicts that are remote or speculative will not defeat class certification. Hispanics United, 160 F.R.D. at 689.
In this case, the named plaintiffs’ interests are entirely coextensive with those of the class. The named plaintiffs, Cook County residents who have been placed in nursing facilities despite their ability to live in the community, have a genuine concern with the outcome of this class action. They share the same claims as the class members as well as a strong interest in securing declaratory and injunctive relief. This relief will benefit all members of the class. There are no conflicts or antagonism, whether actual or apparent, between the named plaintiffs and the class. The named plaintiffs will therefore adequately and vigorously protect the interests of the class.
b) Plaintiffs’ Counsel are Qualified to Maintain this Action The next requirement is that the named Plaintiffs’ counsel be “qualified, experienced, and able to conduct the proposed litigation.” In Re Sulfuric Acid Antitrust Litig., 2007 U.S. Dist. LEXIS 20380 at *16 (citing Rosario, 963 F.2d at 1018). In past cases, courts, including this Court, have certified Plaintiffs’ counsel to represent classes of plaintiffs in class action suits. This fact constitutes “persuasive evidence” that they will be qualified to serve as counsel in the case at bar. Gomez, 117 F.R.D. at 401. Stephen F. Gold is one of the nation’s most experienced disability civil rights litigators. He has represented both individuals and classes of people with disabilities in numerous civil rights cases, including: Fields v. Maram, No. 04-C-0174, 2004 U.S. Dist. LEXIS 16291 (N.D. Ill. Aug. 16, 2004); Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (10th Cir. 2003);
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Case 1:07-cv-04737 Document 10 Filed 08/30/2007 Page 10 of 15
Barthalemy v. Louisiana Dep’t of Health & Hosps., No. 00-1083, 2003 U.S. Dist. LEXIS 5238 (E.D. La. Mar. 31, 2003); Liberty Resources v. Southeastern Pa. Transp. Auth., No. 01-3702, 2002 U.S. App. LEXIS 27344 (3rd Cir. Dec. 23, 2002); National Org. on Disability v. Tartaglione, No. 01-1923, 2001 U.S. Dist. LEXIS 16932 (E.D. Pa. Oct. 22, 2001); ADAPT v. Philadelphia Hous. Auth., No. 98-4609, 2000 U.S. Dist. LEXIS 11052 (E.D. Pa. Jul. 26, 2000); Kathleen S. v. Dep’t of Pub. Welfare, No. 97-6610, 1999 U.S. Dist. LEXIS 19498 (E.D. Pa. Dec. 23, 1999), 1998 U.S. Dist. LEXIS 2027 (E.D. Pa. Feb. 26, 1998); Anderson v. Dep’t of Pub. Welfare, 1 F. Supp. 2d 456 (E.D. Pa. 1998); Warrick v. Snider, 2 F. Supp. 2d 720 (W.D. Pa. 1997); Metts v. Houstoun, No. 97-4123, 1997 U.S. Dist. LEXIS 16737 (E.D. Pa. 1997); Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995); Bacal v. Southeastern Pa. Transp. Auth., No. 94-6497, 1995 U.S. Dist. LEXIS 6609 (E.D. Pa. May 16, 1995); Gottlieb v. American Airlines, No. 944933, 1995 U.S. Dist. LEXIS 1202 (E.D. Pa. Feb. 2, 1995); Engle v. Gallas, No. 93-3324, 1994 U.S. Dist. LEXIS 7935 (E.D. Pa. June 10, 1994); Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993); Disabled in Action v. Sykes, 833 F.2d 1113 (3d Cir. 1987); Benton v. Bowen, 820 F.2d 85 (3d Cir. 1987); Clark v. Cohen, 794 F.2d 79 (3d Cir. 1986); Disabled in Action v. Pierce, 789 F.2d 1016 (3d Cir. 1986); Dennis v. Heckler, 756 F.2d 971 (3d Cir. 1985); L. v. Thomas, 557 F.2d 373 (3d Cir. 1977); White v. Beal, 555 F.2d 1146 (3d Cir. 1977).
Access Living has served as class counsel in Access Living v. Chicago Trans. Auth., No. 00-C-0070, 2001 U.S. Dist. LEXIS 6041 (N.D. Ill. May 9, 2001), Fields v. Maram, No. 04-C0174, 2004 U.S. Dist. LEXIS 16291 (N.D. Ill. Aug. 16, 2004),5 Ligas v. Maram, No. 05-C-4331, 2006 U.S. Dist. LEXIS 10856 (N.D. Ill. Mar. 7, 2006), Williams v. Blagojevich, No. 05-C-4673,
5 The Court in Fields described Access Living and Mr. Gold as “some of the most distinguished disability rights attorneys in the country, and they – as well as the attorneys who represented the Defendant – all performed in a first-rate manner.” Fields v. Maram, No. 04-C0174 (N.D. Ill.), slip op. at 4 (Feb. 27, 2007) (approving consent decree).
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Case 1:07-cv-04737 Document 10 Filed 08/30/2007 Page 11 of 15
2006 U.S. Dist. LEXIS 83537 (N.D. Ill. Nov. 13, 2006), and also regularly litigates cases on behalf of individuals with disabilities. In addition, Max Lapertosa of Access Living has served as class counsel in the following disability rights cases: Gaskin v. Pennsylvania, No. 94-CV4048 (E.D. Pa.) (see 389 F. Supp. 2d 628 (E.D. Pa. 2005) (approving consent decree)) and Messier v. Southbury Training Sch., No. 94-CV-1706 (D. Conn.) (see 183 F.R.D. 350 (D. Conn. 1998)).
Equip for Equality is the state-designated Protection and Advocacy agency for people with disabilities. See 42 U.S.C. § 15043. It served as class counsel in Access Living v. Chicago Trans. Auth., No. 00-C-0070, 2001 U.S. Dist. LEXIS 6041 (N.D. Ill. May 9, 2001), and serves as class counsel Ligas v. Maram, No. 05-C-4331, 2006 U.S. Dist. LEXIS 10856 (N.D. Ill. Mar. 7, 2006) and Williams v. Blagojevich, No. 05-C-4673, 2006 U.S. Dist. LEXIS 83537 (N.D. Ill. Nov. 13, 2006). Karen Ward of Equip for Equality has more than 30 years’ experience in federal court litigation, has participated in more than 60 cases with reported decisions, and has served as lead counsel in numerous disability civil rights cases, including two before this Court raising similar community-integration claims to those presented here: Fisher v. Maram, No. 06-C-4405 (N.D. Ill.) and Grooms v. Maram, No. 06-C-2211 (N.D. Ill.). Laura Miller of Equip for Equality also has extensive experience and has served as class counsel in the following disability rights cases: Corey H. v. Board of Educ., No. 92-C-3409 (N.D. Ill.) (see 995 F. Supp. 900 (N.D. Ill. 1998)) and Calvin G. v. Board of Educ., No. 90-C-3248 (N.D. Ill.).
Benjamin Wolf of the American Civil Liberties Union of Illinois has over twenty years’ experience representing institutionalized children and people with disabilities. He has served as class counsel in the following civil rights cases: Ligas v. Maram, No. 05-C-4331, 2006 U.S. Dist. LEXIS 10856 (N.D. Ill. Mar. 7, 2006); Williams v. Blagojevich, No. 05-C-4673, 2006 U.S. Dist.
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Case 1:07-cv-04737 Document 10 Filed 08/30/2007 Page 12 of 15
LEXIS 83537 (N.D. Ill. Nov. 13, 2006); B.H. v. McDonald, No. 88-C-5599 (N.D. Ill.) (see 49 F.3d 294 (7th Cir. 1995) and 856 F. Supp. 1285 (N.D. Ill. 1994)); K.L. v. Edgar, No. 92C-5722 (N.D. Ill.) (see 2000 U.S. Dist. LEXIS 15404 (N.D. Ill. Oct. 6, 2000)); A.N. v. Kiley, No. 86-C-9486 (N.D. Ill.) (see 1995 U.S. Dist. LEXIS 13993 (N.D. Ill. Sept. 22, 1995)); and A.T. v. County of Cook, No. 85-C-0325 (N.D. Ill.) (see 613 F. Supp. 775 (N.D. Ill. 1985)).
Finally, Ross Dixon & Bell is a national law firm with extensive experience in litigation and counseling. The firm has extensive litigation experience on behalf of pro bono civil rights clients, including the elderly, children and victims of religious discrimination. Partner Daniel J. Zollner has over 25 years’ experience in complex litigation, and been counsel in more than 20 class action cases, including Ball v. Nationscredit Fin. Servs. Corp., No. 95-C-7248 (N.D. Ill.), Honore v. Nationscredit Fin. Servs. Corp., 96-C-7243 (N.D. Ill.), Taylor v. Rollins, Inc., 97C-4156 (N.D. Ill.), Polis v. Getaways, Inc., 98-C-1808 (N.D. Ill.), Bauer v. Sears Roebuck & Co., 98-C-6784 (N.D. Ill.), and Sollberger v. CIB Marine Bancshares, 05-CV-2090 (C.D. Ill.).
5. The Class is Readily Identifiable An implied requirement under Rule 23(a) is that a class must be “readily identifiable.” An identifiable class is defined as one whose “members can be ascertained by reference to objective criteria.” Gomez, 117 F.R.D. at 397 (citing Alliance to End Repression, 565 F.2d at 977). The proposed class consists of all Medicaid-eligible adults with disabilities in Cook County, Illinois, who are being, or may in the future be, unnecessarily confined to nursing facilities and with appropriate supports and services may be able to live in a community setting. This definition is appropriately based on objective, identifiable criteria. See e.g. Fields, 2004 U.S. Dist. LEXIS 16291 at **38-40; Hispanics United, 160 F.R.D. at 688 (loss of benefits from living in an integrated community does “not involve an injury requiring examination of the
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Case 1:07-cv-04737 Document 10 Filed 08/30/2007 Page 13 of 15
individual plaintiffs’ state of mind.”) As such, the class is readily identifiable. 6. Plaintiffs are Members of the Proposed Class
Finally, the named plaintiffs must belong to the class they seek to represent. Gomez, 117 F.R.D. at 397; see also Hendrix v. Faulkner, 525 F. Supp. 435, 442 (N.D. Ind. 1980), aff’d sub nom. in relevant part, Wellman v. Faulkner, 715 F.2d 269 (7th Cir. 1983), cert. denied, 468 U.S. 1217 (1984). The named plaintiffs in this case are Medicaid-eligible individuals with disabilities residing in Cook County who have been unnecessarily institutionalized in nursing facilities. There is no question they belong to the proposed class.
B. PLAINTIFFS MEET THE REQUIREMENTS OF RULE 23(b)(2) In addition to satisfying Rule 23(a), Plaintiffs must meet one of the requirements of Rule 23(b) to certify a class. See e.g. Rosario, 963 F.2d at 1017. Plaintiffs move here under Rule 23(b)(2), which allows courts to certify a class if the defendant “has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R. Civ. Proc. 23(b)(2). The U.S. Supreme Court has noted that “[c]ivil rights cases against parties charged with unlawful, class-based discrimination are prime examples” of class actions under Rule 23(b)(2). Amchem Products v. Windsor, 521 U.S. 591, 613 (1997) (citing Advisory Comm.'s Notes on Fed. Rule Civ. Proc. 23, 28 U.S.C. App., p. 697 (1966) (“Illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.”)) Consequently, the proposed class in this case is clearly one that should be certified under Rule 23(b)(2). This is because the proposed class is comprised of Medicaid-eligible individuals with disabilities who seek declaratory and injunctive relief to remedy Defendants’ class-wide civil rights violations. See Fields, 2004 U.S. Dist. LEXIS 16291 at *40-42; Ligas, 2006 U.S.
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Case 1:07-cv-04737 Document 10 Filed 08/30/2007 Page 14 of 15 Dist. LEXIS 10856 at *18; Williams, 2006 U.S. Dist. LEXIS 83537 at *8. Furthermore, it is common for courts to certify classes under Rule 23(b)(2) in cases “where Medicaid recipients have sought to enforce their rights to benefits.” Fields, 2004 U.S. Dist. LEXIS 16291 at *41 (citing Marisol v. Giuliani, 126 F.3d 372, 378 (2d Cir. 1997)); Baby Neal v. Casey, 43 F.3d 48, 64 (3d Cir. 1994); Hillburn v. Maher, 795 F.2d 252, 255 (2d Cir. 1986); Raymond v. Rowland, 220 F.R.D. 173, 181 (D. Conn. 2004); Verdow v. Sutkowy, 209 F.R.D. 309, 313 (N.D.N.Y. 2002); Rancourt v. Concannon, 207 F.R.D. 14, 16 (D. Me. 2002); Boulet v. Cellucci, 107 F. Supp. 2d 61, 81 (D. Mass. 2000)).
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Case 1:07-cv-04737 Document 10 Filed 08/30/2007 Page 15 of 15

III. CONCLUSION

For the reasons stated above, Plaintiffs respectfully request that this Court grant its

Motion to Maintain a Class Action.

Dated August 30, 2007

RESPECTFULLY SUBMITTED,

s/

Max Lapertosa______________

One

of the Attorneys for Plaintiffs

Daniel J. Zollner David Curkovic Regina Ripley ROSS, DIXON & BELL, LLP 55 West Monroe Street, Suite 3000 Chicago, IL 60603 Tel: (312) 759-1920 Fax: (312) 759-1939
Max Lapertosa Kenneth M. Walden ACCESS LIVING 115 West Chicago Avenue Chicago, IL 60610 Tel: (312) 640-2100 Fax: (312) 640-2139
Edward B. Mullen III 3501 North Southport Avenue, Suite 206 Chicago, IL 60657-1435 Tel: (773) 322-8055 Fax: (312) 759-1939

Stephen F. Gold 125 South Ninth Street, Suite 700 Philadelphia, PA 19107 Tel: (215) 627-7100 Fax: (215) 627-3183
Laura A. Miller Karen I. Ward EQUIP FOR EQUALITY 20 North Michigan Avenue, Suite 300 Chicago, IL 60602 Tel: (312) 341-0022 Fax: (312) 341-0295
Benjamin S. Wolf Gail Waller THE ROGER BALDWIN FOUNDATION OF THE ACLU OF ILLINOIS 180 North Michigan Avenue, Suite 2300 Chicago, IL 60601 Tel: (312) 201-9740 Fax: (312) 201-9760

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 </s> Case: 1:07-cv-04737 Document #: 77 Filed: 09/29/08 Page 1 of 18 PageID #:435

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LENIL COLBERT, CONSTANCE

)

GRAY, ERNEST REEVES, KENYA )

LYLES, and DWIGHT SCOTT, for

)

themselves and all others similarly

)

situated,

)

)

Plaintiffs,

)

)

v.

)

)

ROD R. BLAGOJEVICH, in his official )

capacity as Governor of the State of

)

Illinois; CAROL L. ADAMS, in her

)

official capacity as Secretary of the

)

Illinois Department of Human Services; )

BARRY S. MARAM, in his official

)

capacity as Director of the Illinois

)

Department of Healthcare and Family )

Services; and ERIC E. WHITAKER, )

M.D., in his official capacity as Director )

of the Illinois Department of Public

)

Health,

)

)

Defendants.

)

No. 07 C 4737 Judge Joan H. Lefkow

MEMORANDUM OPINION AND ORDER This putative class action was brought by five Medicaid-eligible individuals who allege that Illinois officials have violated portions of the Americans with Disabilities Act, the Rehabilitation Act of 1973, the Social Security Act, and the Nursing Home Reform Act by failing to adequately provide them with long-term care services in an integrated, community setting. Before the court is plaintiffs’ motion for class certification pursuant to Rules 23(b)(2) and 23(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, the motion [#9] is granted.

Case: 1:07-cv-04737 Document #: 77 Filed: 09/29/08 Page 2 of 18 PageID #:436
BACKGROUND Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12111 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, prohibit public entities from discriminating against individuals with disabilities in providing public services, programs, or activities. The ADA instructs the Attorney General to issue regulations implementing Title II’s discrimination prohibitions. 42 U.S.C. § 12134(a). One such regulation mandates that a public entity “administer . . . programs . . . in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). Additionally, in construing the anti-discrimination provisions of the ADA, the Supreme Court has held that disabled individuals should be placed in community settings, rather than state institutions, provided the following conditions are met: the state’s treatment professionals have determined that community placement is appropriate; the transfer out of institutional care is not opposed by the affected individual; and the placement can be reasonably accommodated, taking into account the available state resources and the needs of others with disabilities. Olmstead v. L.C., 527 U.S. 581, 587, 119 S. Ct. 2176, 144 L. Ed. 2d 540 (1999). The five named plaintiffs in this case are Medicaid-eligible Cook County, Illinois residents with disabilities. All plaintiffs are, or were at the time of filing, housed in private nursing facilities that receive state and federal funding. If given the appropriate services, plaintiffs allege that they, and others similarly situated, are capable of living in their own homes or apartments. They assert, however, that despite their ability and desire to live in the community, defendants have failed to adequately provide them with an opportunity to live outside of an institutionalized setting, in violation of the ADA, 42 U.S.C. § 12132, the
2

Case: 1:07-cv-04737 Document #: 77 Filed: 09/29/08 Page 3 of 18 PageID #:437
Rehabilitation Act of 1973, 29 U.S.C. 794(a), the Social Security Act, 42 U.S.C. §§ 1396–1396v, and the Nursing Reform Act, 42 U.S.C. § 1396a(a)(28)(A).
The four defendants, all sued in their official capacities, are the Governor of the State of Illinois, the Secretary of the Illinois Department of Human Services, the Director of the Illinois Department of Healthcare and Family Services, and the Director of the Illinois Department of Public Health. Plaintiffs seek injunctive relief that would require defendants to (1) inform individuals with disabilities that they may be eligible for community-based services and have the choice of such services, (2) regularly provide assessments to determine eligibility for community-based services, and (3) promptly provide appropriate services and support to qualifying individuals in the community, creating a viable alternative to treatment in institutional settings. Pls.’ Compl. at 26.
Plaintiffs have moved pursuant to Rules 23(b)(2) and 23(c) for an order certifying this case as a class action. They seek to certify the following class: all Medicaid-eligible adults with disabilities in Cook County, Illinois, who are being, or may in the future be, unnecessarily confined to nursing facilities and who, with appropriate supports and services, may be able to live in a community setting. Pls.’ Compl. ¶ 71.
CLASS CERTIFICATION STANDARD A party seeking to certify a class action must meet two conditions. First, the movant must show the putative class satisfies the four prerequisites of Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. Fed. R. Civ. P. 23(a); Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006); Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992). Second, the action must qualify under at least one of the three subsections of
3

Case: 1:07-cv-04737 Document #: 77 Filed: 09/29/08 Page 4 of 18 PageID #:438
Rule 23(b). Fed. R. Civ. P. 23(b); Rosario, 963 F.2d at 1017; Hardin v. Harshbarger, 814 F. Supp. 703, 706 (N.D. Ill. 1993). Here, plaintiffs seek certification under Rule 23(b)(2), which requires a finding that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
Courts retain broad discretion in determining whether a proposed class meets the Rule 23 certification requirements. Keele v. Wexler, 149 F.3d 589, 592 (7th Cir. 1998). While the requirements of Rule 23 should be liberally construed to support the policy favoring the maintenance of class actions, King v. Kansas City S. Indus., 519 F.2d 20, 25–26 (7th Cir. 1975), the moving party bears the burden of showing that the requirements for class certification have been met. Hardin, 814 F. Supp. at 706.
DISCUSSION A. Definiteness
Before turning to the explicit requirements of Rule 23, defendants argue that plaintiffs’ motion should be denied because the proposed class is too indefinite to support class certification. A class is sufficiently definite if membership can be ascertained by reference to objective criteria. Wallace v. Chicago Housing Authority, 224 F.R.D. 420, 425 (N.D. Ill. 2004) (citing Gomez v. Ill. State Bd. of Educ., 117 F.R.D. 394, 397 (N.D. Ill.1987)). If the class definition would require the court to conduct individualized inquiries into each potential class member’s claims, the definition is deficient. Lau v. Arrow Fin. Servs., LLC, 245 F.R.D. 620, 624 (N.D. Ill. 2007).
4

Case: 1:07-cv-04737 Document #: 77 Filed: 09/29/08 Page 5 of 18 PageID #:439
Defendants contend that the proposed class definition fails because (1) the term “Medicaid-eligible adults with disabilities” is too broad; (2) the services that plaintiffs are allegedly being denied are not explicitly identified; and (3) the relief sought by plaintiffs is too vague. To some extent, however, it seems that defendants misunderstand the definiteness requirement, the class definition proposed, and the relief sought by plaintiffs. Determining if an adult is Medicaid-eligible or disabled is objectively established by reference to the regulations promulgated pursuant to the ADA and the Social Security Act. The only definiteness issue that could be challenged, then, is this: would the proposed class definition require the court to assess whether each class member may be able, with the appropriate supports and services, to live in the community?
In two recent decisions on motions for class certification in which the plaintiffs had proposed class definitions similar to that proposed here, courts in this district answered this question with a resounding “no.” See Ligas v. Blagojevich, No. 05 C 4331, 2006 U.S. Dist. LEXIS 10856, at *16–17 (N.D. Ill. Mar. 7, 2006); Williams v. Blagojevich, No. 05 C 4673, 2006 U.S. Dist. LEXIS 83537, at *13–15 (N.D. Ill. Nov. 13, 2006). In each of those cases, the named plaintiffs sought to enjoin defendants to create a set of objective criteria against which all class members would be regularly assessed to determine their eligibility for community-based care. See Ligas, 2006 U.S. Dist. LEXIS 10856, at *5–6; Williams, 2006 U.S. Dist. LEXIS 83537, at *6. The class proposed in Ligas consisted of “[a]ll persons in Illinois with disabilities who (1) have mental retardation and/or other developmental disabilities and who qualify for long-term care services; (2) with appropriate supports and services, could live in the community and who would not oppose community placement; and (3) either are institutionalized in private
5

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[intermediate care facilities for persons with developmental disabilities] . . . or are living in a home-based setting and are at risk for institutionalization because of their need for services.” 2006 U.S. Dist. LEXIS 10856, at *7–8. In rejecting the defendants’ contention that the proposed class was too indefinite because the court would have to make individual determinations about class membership, the court stated,
In essence, the plaintiffs are willing to have the defendants make these determinations based on reasonable assessments from their own state treatment professionals in accordance with Olmstead. Because the defendants would be evaluating based on their own criteria whether a potential class member would meet the state’s requirements and thus the class definition, [the] court could order the defendants to engage in individual determinations should any relief be granted and not do so itself. Id. at *16–17 (citation omitted). The court in Williams employed a similar line of reasoning in rejecting a nearly identical argument by the defendants. See 2006 U.S. Dist. LEXIS 83537, at *14–15 (“[I]t is unnecessary to make qualification for community placement a requirement for membership in the class. It is sufficient to define class members as persons who, with appropriate support and services, may be able to live in an integrated community setting.”). Plaintiffs in this case likewise seek to enjoin defendants to create a set of objective criteria against which all proposed class members will be regularly assessed for their eligibility for community placement. Should plaintiffs ultimately succeed, defendants—not the court—will need to determine, based on reasonable assessments by their own state treatment professionals, what type of community-based long-term services it would be administratively feasible for the state to supply each class member. The specific contours of the criteria to be used by defendants in making their assessments are not at issue; rather, plaintiffs object to the lack of any systematic criteria whatsoever. Defendants’ concerns as to the particular types of community-based
6

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services they may be required to provide, and to what extent those services may include housing assistance, are therefore more properly addressed at a later stage of this litigation.
Defendants also argue that the class definition is too broad because it may overlap in part with the classes in Ligas and Williams. Although the classes in those cases are strikingly similar to that proposed here, the class members in Ligas and Williams are (or are at risk of) being institutionalized in intermediate care facilities for persons with developmental disabilities (“ICFDDs”) or institutions for mental disease (“IMDs”), respectively—not nursing facilities, as in the present case. See Ligas, 2006 U.S. Dist. LEXIS 10856, at *6; Williams, 2006 U.S. Dist. LEXIS 83537, at *4–5. The proposed class, therefore, does not fail for lack of definiteness. B. Rule 23(a) Requirements
1. Numerosity Numerosity, the first prerequisite for class certification under Rule 23(a), requires that the class be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “‘Impracticable’ does not mean ‘impossible,’ but rather, extremely difficult and inconvenient.” Fields v. Maram, No. 04 C 0174, 2004 WL 1879997, at *3 (N.D. Ill. Aug. 17, 2004) (quoting Danis v. USN Communications, Inc., 189 F.R.D. 391, 399 (N.D. Ill. 1999)). Generally, where the membership of the proposed class is at least 40, joinder is impracticable and the numerosity requirement is met. See Swanson v. Am. Consumer Indus., Inc., 415 F.2d 1326, 1333 & n.9 (7th Cir. 1969). In determining whether joinder is impracticable, the court considers not only the size of the class, but also the geographic dispersion of its members, the nature of relief sought, and the ability of the litigants to press their own claims. Murray v. E*Trade Fin. Corp., 240 F.R.D. 392, 396 (N.D. Ill. 2006); Rosario v. Cook County, 101 F.R.D. 659, 661 (N.D. Ill. 1983).
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Defendants do not deny that plaintiffs have met the numerosity requirement. There are currently over 20,000 Medicaid-eligible individuals with disabilities living in Cook County nursing facilities. Pls.’ Compl. ¶ 72. Based on estimates from the Centers for Medicare and Medicaid Services, plaintiffs allege that more than 7,000 of these residents have expressed a preference to live in the community rather than in a nursing facility. Id. In addition, it is likely that, as Medicaid recipients, many of these individuals lack the financial means to bring individual lawsuits. Id.; see also McCabe v. Crawford & Co., 210 F.R.D. 631, 644 (N.D. Ill. 2002) (“[T]he Court is able to make common-sense assumptions in determining numerosity.”) (internal quotation marks omitted). Because it would be impracticable and inconvenient to join all potential class members in this case, the court finds that the numerosity requirement has been satisfied.
2. Commonality The commonality requirement mandates that “questions of law or fact common to the class” exist. Fed. R. Civ. P. 23(a)(2); Keele, 149 F.3d at 594. It has been characterized as “a ‘low hurdle’ easily surmounted.” Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181, 185 (N.D. Ill. 1992). “A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2).” Keele, 149 F.3d at 594 (internal quotation marks and citation omitted); Rosario, 963 F.2d at 1018; see also Tylka v. Gerber Prods. Co., 178 F.R.D. 493, 496 (N.D. Ill. 1998) (noting that if at least one question of law or fact is common to the class, then commonality is satisfied). A common nucleus exists where the class members’ claims hinge on the same conduct by the defendants. Tylka, 178 F.R.D. at 496.
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Defendants challenge the ability of the proposed class to satisfy the commonality requirement. Defendants’ primary argument is that the broad class definition proposed by plaintiffs is too factually diverse for commonality between class members to exist. According to defendants, the court will need to make individual determinations about class membership for every proposed class member, thereby defeating commonality. They further argue that the evaluations currently conducted by nursing facilities “to determine progress and advancement towards discharge” are sufficient to show that plaintiffs have not been damaged as alleged. Defs.’ Mem. in Opposition to Pls.’ Mot. (“Defs.’ Resp.”) at 10.
In challenging the commonality of the proposed class, defendants rely primarily on two cases, Metcalf v. Edelman, 64 F.R.D. 407 (N.D. Ill. 1974), and Fuzie v. Manor Care, Inc., 461 F. Supp. 689 (N.D. Ohio 1977). The plaintiffs in Metcalf claimed that they were unable to obtain adequate housing under the state’s existing shelter system. Metcalf, 64 F.R.D. at 408. The court found that the proposed class did not meet the commonality requirement because it would have required the court to adjudicate that each putative class member was unable to find housing “because such plaintiff was not granted a shelter exception” under the state’s shelter system. Id. at 409 (emphasis added). In other words, the proposed class definition would have required the court to make separate inquiries into the facts surrounding each individual class members’ claims. See id. at 409–10. Similarly, the proposed class in Fuzie failed to meet the commonality requirement because the court would have had to decide that each putative class member was illegally discharged from the private nursing facility sued in the case because the plaintiff was a Medicaid recipient. See 461 F. Supp. at 700 (citing Metcalf, 64 F.R.D. at 409).
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The bar to class certification in Metcalf and Fuzie is not present in this case. As discussed above, plaintiffs seek to require defendants to enact standardized policies and procedures for placing eligible disabled individuals in the community. Unlike the plaintiffs in Metcalf and Fuzie, plaintiffs do not assert that an existing system, poorly administered on a caseby-case basis, is causing the harm alleged; rather, the claimed injury flows from the lack of any community placement procedure at all. The claims of the proposed class members raise common questions with respect to defendants’ alleged failures in this regard: Do defendants systematically (1) “ensure that comprehensive, appropriate assessments . . . are conducted to determine whether class members require institutionalization,” (2) “inform [p]laintiffs and class members of community-based long-term care alternatives,” and (3) “provide . . . community long-term care services with reasonable promptness?” Mem. in Supp. of Pl.’s Mot. to Maintain a Class Action (“Pls.’ Mot. Mem.”) at 5–6. While defendants argue that the different medical issues, treatment options, and placement histories affecting each plaintiff prevent the court from finding a common answer to these questions, the factual variations identified relate “to the level of injury suffered and not [to] whether the defendants’ conduct was sufficient[ly] standardized.” Ligas, 2006 U.S. Dist. LEXIS 10856, at *12.1
Defendants’ second argument is aimed at the merits of plaintiffs’ claim. When evaluating a motion for class certification, the court accepts the allegations made in support of certification as true and does not examine the merits of the case. Hardin, 814 F. Supp. at 706 (citing, inter alia, Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177–78, 94 S. Ct. 2140, 40 L. Ed.
1 A disabled individual who presently is not capable of living in the community will obviously suffer less injury from the lack of a regimented community placement procedure than a disabled individual who, given proper support, could immediately be transferred. Where it is the defendants’ standardized conduct that is at issue, however, the court does not require that putative class members all suffer the same injury. Ligas, 2006 U.S. Dist. LEXIS 10856, at *11 (citing Rosario, 963 F.2d at 1018).
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2d 732 (1974)). The court will not merely rubber stamp the movant’s allegations, however, but will look beneath the surface of the pleadings and independently examine the evidence in order to protect absent class members by ensuring that the requirements of Rule 23 are satisfied. Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157, 160–61, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982); Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 677 (7th Cir. 2001). Even if the court grants a motion for class certification, that ruling is “inherently tentative,” Falcon, 457 U.S. at 160, and the court retains the freedom to modify it in light of subsequent developments in the litigation. Fed. R. Civ. P. 23(c)(1)(C).
Defendants have submitted Exhibits A through G, a collection of documents tracking the medical histories of the plaintiffs, and argue that these documents show not only the varying factual differences between plaintiffs’ claims, but also that plaintiffs are being regularly evaluated for progress towards discharge. Based on this evidence, defendants ask the court to “infer that the named Plaintiffs have not been damaged as alleged.” Defs.’ Resp. at 10. Plaintiffs respond, and this court agrees, that the defendants are attempting to use the commonality criterion of Rule 23(a) to get at the merits of plaintiffs’ case. While the evidence submitted by defendants does show that the nursing facilities are conducting some assessments of plaintiffs’ progress, it is far from obvious that these assessments include determinations of eligibility for community placement, and it is unclear that a medical professional has evaluated each plaintiff for that specific purpose. Absent clear proof that plaintiffs’ claims are without merit, the court, in ruling on this motion for class certification, declines to “infer” that plaintiffs will ultimately be unsuccessful. See Fields, 2004 WL 1879997, at *7 (“While defendant has submitted evidence it contends supports the conclusion that it does not have a policy which
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discriminates against disabled nursing home residents . . . the Court’s role in deciding a motion for class certification does not involve deciding the ultimate merits of plaintiff’s claim.”); Williams, 2006 U.S. Dist. LEXIS 83537, at *10 (holding it inappropriate for the court to consider medical records of mentally ill individuals absent expert testimony).
The evidence submitted by defendants does not alter the court’s determination that the proposed class challenges the defendants’ policies and practices regarding community placement, nor does it negate the common questions of law and fact arising from such standardized conduct by the defendants. Accordingly, the court finds that the proposed class meets the commonality requirement.
3. Typicality To meet the typicality requirement, the named plaintiffs’ claims or defenses must be typical of the class. Fed. R. Civ. P. 23(a)(3); Keele, 149 F.3d at 594. The typicality requirement focuses on the class representative: “[a] plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.” Keele, 149 F.3d at 595 (internal quotation marks and citations omitted); De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983) (internal quotation marks and citations omitted). “Typical does not mean identical, and the typicality requirement is liberally construed.” Gaspar v. Linvatec Corp., 167 F.R.D. 51, 57 (N.D. Ill. 1996). Factual distinctions between the named plaintiff’s claims and those of other class members do not necessarily undermine typicality. De La Fuente, 713 F.2d at 232; Robbins v. Wolpoff & Abramson LLP, No. 05-C-0315, 2006 WL 2473334, at *2 (E.D. Wis. Aug. 24,
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2006). Because “commonality and typicality are closely related, a finding of one often results in a finding of the other.” McKenzie v. City of Chicago, 175 F.R.D. 280, 286 (N.D. Ill. 1997).
Defendants first argue that the claims of the named plaintiffs are not typical of the class because a showing that the named plaintiffs are entitled to relief would not necessarily prove the claims of all class members. Defendants contend, for example, that the proposed class includes “individuals who have moved to the community as well as those . . . who may not be ready for discharge” from nursing facilities. Defs.’ Resp. at 13. Regardless of such factual differences, however, the claims of the named plaintiffs share the same “essential characteristics” as the claims of proposed class members. See Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 597 (7th Cir. 1993) (noting that factual differences may exist between the claims of named plaintiffs and proposed class members in a typicality analysis as long as they share the same “essential characteristics”). Like the class members, the named plaintiffs have an interest in requiring the defendants to establish a policy of informing them about the option of community placement and providing community placement to those who are eligible. See Ligas, 2006 U.S. Dist. LEXIS 10856, at *13. This interest exists regardless of whether or not a given individual is ultimately determined to be able to live in the community. That some individuals have managed to move out of nursing facilities under the current community placement regime likewise does not lead to the conclusion that the claims of these plaintiffs are not typical of the class. “It is more likely that the ‘satisfied’ class members suffered less injury than other class members, not that they suffered no injury” at all. Rosario, 963 F.2d at 1018 (holding that two class members who were satisfied with the beauty school training they had received nevertheless had claims
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typical of the class against allegedly fraudulent beauty school operator). Proving the claims of the named plaintiffs would, therefore, entitle all class members to the relief sought.
Second, defendants argue that class certification is inappropriate because one named plaintiff, Ernest Reeves, has been moved from a nursing facility into the community, rendering his claim moot. See Defs.’ Resp. at 12 & n.5. This line of reasoning is unpersuasive, however, in light of the fact that Reeves was, according to defendants, discharged from his nursing facility on October 15, 2007, well after plaintiffs filed their motion for class certification on August 30, 2007. See Fields, 2004 WL 1879997, at *8 (holding that when a governmental defendant provides a benefit to a plaintiff after a motion for class certification is filed, class certification should be seen as “relating back” to the outset of the suit with the effect that issues such as class membership “are addressed in terms of the circumstances that existed at that time the complaint or the motion for class certification [was] filed”). Furthermore, even if Mr. Reeves’ claims were mooted, four adequate class representatives whose claims are not moot remain. See Robinson v. Sheriff of Cook County, 167 F.3d 1155, 1157–58 (7th Cir. 1999) (suitability of new class representative must be determined independently of former proposed class representative found to be inadequate). Additionally, even if all named plaintiffs are later disqualified by evidence revealed at summary judgment or trial, appropriate class members could potentially be substituted in their place. See id.
Defendants’ third argument challenging typicality asserts that the proposed class, limited as it is to Medicaid-eligible adults in Cook County, leaves “residents in other counties . . . to their own devices to pursue alleged relief in other districts or possibly no relief what so ever.” Defs.’ Resp. at 13. It is unclear, however, how having a class definition that is limited in terms
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of its geographic scope prevents the named plaintiffs from having claims typical of the class. The defendants fail to cite any authority for the proposition that in order to satisfy typicality a plaintiff’s class definition must include all possible individuals who may be entitled to the relief sought. Far from persuading the court that the “limited” nature of the class is indicative of its failure to meet the typicality requirement, defendants’ reasoning suggests the opposite—that the claims of the named plaintiffs’ are typical not only of the proposed class, but of a much broader class as well. In any event, the court need not go so far. It suffices that the class actually proposed here satisfies the typicality requirement.
4. Adequacy To meet Rule 23’s adequacy of representation requirement, “the representative must be able to ‘fairly and adequately protect the interests of the class.’” Keele, 149 F.3d at 594 (quoting Fed. R. Civ. P. 23(a)(4)). Under Rule 23(a)(4), the adequacy of representation determination “is composed of two parts: ‘the adequacy of the named plaintiff’s counsel, and the adequacy of representation provided in protecting the different, separate, and distinct interest’ of the class members.” Retired Chicago Police Ass’n, 7 F.3d at 598 (quoting Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 697 (7th Cir. 1986) (en banc)). “A class is not fairly and adequately represented if class members have antagonistic or conflicting claims.” Rosario, 963 F.2d at 1018 (citation omitted). Defendants do not dispute that competent attorneys represent the proposed class in this case. Plaintiffs’ counsel has litigated numerous class actions, and no reason has been brought to the court’s attention suggesting that counsel is unable to adequately represent the proposed class here.
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Defendants do, however, contest the ability of the class representatives to adequately protect the interests of all class members. Defendants argue that because the class definition includes persons who may oppose community placement, “the proposed class creates antagonism between those named Plaintiffs who want to move from nursing facilities to community settings, and potential class members who do not want or lack the support to move from their current placements.” Defs.’ Resp. at 14. The court finds this argument to be without merit. Nothing in the relief sought by plaintiffs suggests individuals opposed to community placement will be forced to move. The relief requested requires only that proper evaluations be offered and conducted and that appropriate services be made available to those qualifying for community placement. “A decision to consent to the recommended placement need not be made until after an appropriate evaluation is performed and the individual knows what type of placement is being recommended.” Williams, 2006 U.S. Dist. LEXIS 83537, at *14. Accordingly, the court finds that no antagonism exists between class members. The plaintiffs are therefore found to be adequate class representatives.
For the foregoing reasons, the court concludes that plaintiffs’ proposed class satisfies all four requirements of Rule 23(a). C. Rule 23(b)(2)
Rule 23(b)(2) provides that an action may be maintained as a class action if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). This rule is generally “invoked in cases where injunctive or declaratory relief is the primary or exclusive relief sought.” Byucks-Robertson v. Citibank Fed.
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Sav. Bank, 162 F.R.D. 322, 335 (N.D. Ill. 1995); see also Doe v. Guardian Life Ins. Co. of Am., 145 F.R.D. 466, 477 (N.D. Ill. 1992) (“[T]he primary limitation on the use of Rule 23(b)(2) is the requirement that injunctive or declaratory relief be the predominant remedy requested for the class members.”).
While defendants summarily deny that their conduct is generally applicable to the class as whole, their argument once again focuses improperly on the merits of plaintiffs’ case. Defendants argue that their exhibits clearly show that “the named Plaintiffs are evaluated and assessed; they are aware of the opportunity to return to the community; they are given assistance to find living arrangements in the community; and some in fact, have been placed in the community where they are provided services.” Defs.’ Resp. at 15. Thus, defendants argue, they have not acted on grounds generally applicable to the class. As discussed above, however, the evidence submitted by defendants fails to establish that they have a policy of regularly assessing plaintiffs for placement in the community.
Plaintiffs allege that defendants’ practices and policies systematically deny class members the opportunity to be informed about their treatment options and to move from nursing facilities into the community. The court finds that plaintiffs’ pattern-or-practice allegations sufficiently allege that defendants have acted on grounds generally applicable to the proposed class. See Wallace, 224 F.R.D. at 431 (holding that plaintiffs’ theory that the Chicago Housing Authority engaged in a pattern of discriminatory behavior satisfied the requirement of Rule 23(b)(2)). The court thus concludes that the proposed class falls within the ambit of Rule 23(b)(2) and is appropriate for certification.
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CONCLUSION AND ORDER For the reasons set forth above, the court grants plaintiffs’ motion [#9] and certifies the following class: “all Medicaid-eligible adults with disabilities in Cook County, Illinois, who are being, or may in the future be, unnecessarily confined to nursing facilities and who, with appropriate supports and services, may be able to live in a community setting.”

Dated: September 29, 2008

Enter:____________________________________ JOAN HUMPHREY LEFKOW United States District Judge

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 </s> Case 1:07-cv-04737 Document 139 Filed 09/29/2009 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LENIL COLBERT, CONSTANCE GRAY, )

ERNEST REEVES, KENYA LYLES, and )

DWIGHT SCOTT, for themselves and all

)

others similarly situated,

)

)

Plaintiffs,

)

v.

)

)

PAT QUINN, in his official capacity as

)

Governor of the State of Illinois; CAROL L. )

ADAMS, in her official capacity as Secretary )

of the Illinois Department of Human

)

Services; BARRY S. MARAM, in his

)

official capacity as Director of the Illinois

)

Department of Healthcare and Family

)

Services; DAMON T. ARNOLD, M.D., in )

his official capacity as Director of the Illinois )

Department of Public Health; and

)

CHARLES D. JOHNSON, in his official

)

capacity as Director of the Illinois

)

Department on Aging,

)

)

Defendants.

)

No. 07 C 4737
JUDGE JOAN LEFKOW MAGISTRATE JUDGE MARIA VALDEZ

FIRST AMENDED COMPLAINT I. INTRODUCTION
1. This is an action for declaratory and injunctive relief under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), the Social Security Act, 42 U.S.C. §§ 1396-1396v, and the Nursing Home Reform Act, 42 U.S.C. § 1396a(a)(28)(A).

Case 1:07-cv-04737 Document 139 Filed 09/29/2009 Page 2 of 30
2. Plaintiffs are Medicaid-eligible individuals with disabilities who want to live in their own homes or apartments in the community and could reside in them with appropriate services, but have been unnecessarily and inappropriately institutionalized in skilled nursing facilities (hereafter “nursing facilities”) in Cook County, Illinois. Plaintiffs are eligible for, could be appropriately served by, and desire to obtain appropriate long-term care services provided by Defendants in the community rather than in institutions segregated from their family and friends, and from community life.
3. Defendants operate a system of long-term care for eligible individuals with disabilities. Under Defendants’ system of care, as a condition of Plaintiffs’ receiving long-term services, Plaintiffs are effectively compelled to accept and receive these services in segregated institutional settings.
4. Plaintiffs’ plight is shared by many others. According to data maintained by the state and federal governments, over 30% of elderly Cook County nursing facility residents and between 50-60% of non-elderly residents would prefer to receive long-term care services in their own homes, apartments, and community instead of a nursing facility.
5. Plaintiffs’ and others’ choices and preferences for integrated, community care have been, and are being, systematically denied or ignored in favor of more expensive institutional nursing facility care to which Defendants dedicate nearly 80% of Illinois’ long-term care budget for adults with disabilities.
6. As a result of Defendants’ conditions for receipt of services, people with disabilities must enter nursing facilities in order to receive needed long-term care and assistance, forcing them to forego liberty, privacy, independence, the opportunity to attend churches of their choice, and their housing.
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7. Under the “integration mandates” of the ADA, 42 U.S.C. § 12132, its implementing regulations, 28 C.F.R. § 35.130(d), and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and its implementing regulations, 28 C.F.R. § 41.51(d), Defendants must administer their long-term care program for people with disabilities in a manner that provides services to individuals with disabilities in the most integrated setting appropriate to their individual needs. The unnecessary and unwanted segregation and isolation of people with disabilities in institutions constitutes discrimination on the basis of disability. Olmstead v. L.C., 527 U.S. 581, 587 (1999).
8. Defendants have violated Plaintiffs’ and others’ rights under federal law by: (a) conditioning receipt of long-term care services on people with disabilities entering and remaining in unnecessarily segregated and institutionalized settings; (b) failing to ensure that nursing facility residents are assessed for community long-term care services, both at admission and regularly thereafter; (c) failing to inform nursing facility residents of home- and communitybased long-term care options and alternatives; and (d) failing to provide nursing facility residents with sufficient, meaningful community-based long-term care, services and supports to reasonably accommodate those residents who can benefit from community life.
9. As a result of these violations, Plaintiffs and others have needlessly languished in institutions and have been denied long-term care in the community.
10. On behalf of themselves and a class of similarly situated persons, Plaintiffs seek declaratory and injunctive relief to remedy these civil rights violations. II. JURISDICTION AND VENUE
11. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1342. Plaintiffs’ claims for declaratory and injunctive relief
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are authorized under 28 U.S.C. §§ 2201-02 and 42 U.S.C. § 1983. At all times relevant to this action, Defendants have acted under color of state law.
12. Venue is proper in the Northern District of Illinois under 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to Plaintiffs’ claims arose there. III. PARTIES
13. Plaintiff LENIL COLBERT is a thirty-five-year-old man who currently resides at Oak Park Healthcare Center, a nursing facility located in Oak Park, Illinois.
14. Mr. Colbert has seizures, is partially paralyzed, and uses a wheelchair. He is eligible for and receives Medicaid.
15. Despite his disabilities, Mr. Colbert does not require extensive nursing care or oversight. The healthcare and personal assistance services he receives in the nursing facility could be provided in the community. Defendants provide funding for disability services in the community for a limited number of people situated similarly to Mr. Colbert without conditioning receipt of such services on placement in a nursing facility.
16. Before moving to the nursing facility, Mr. Colbert worked in a variety of jobs, including drill press operator, factory worker and delivery company driver.
17. In February 2005, Mr. Colbert had a stroke resulting from surgery to remove a blood clot. The stroke paralyzed him on the left side of his body and prevented him from working.
18. In mid-January 2006, Mr. Colbert was living in Chicago with his mother. During that time, Mr. Colbert had several seizures. Mr. Colbert went to the hospital for evaluation of his seizures, where he was referred to a nursing facility. He was subsequently admitted to Oak Park Healthcare Center in February 2006, where he has resided ever since.
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19. At the nursing facility, Mr. Colbert must share a room with three other adults and accordingly has little personal privacy or any space to call his own.
20. Like other residents of the nursing facility, Mr. Colbert is subject to a 10:00 p.m. curfew, after which the nursing facility’s doors are locked. Residents who arrive later risk being locked out of the facility.
21. Furthermore, Mr. Colbert and other residents are confined to their rooms after 10:00 p.m. Watching television in common areas and walking in the halls after that time are forbidden. Mr. Colbert has been reprimanded for walking in the hallway of Oak Park Healthcare Center after 10:00 p.m. while exercising his disabled leg.
22. Mr. Colbert and all residents of Oak Park Healthcare Center are relegated to the use of a single pay phone in the nursing facility, making outside communication difficult and dependent upon the nursing facility staff.
23. Although Mr. Colbert has requested community-based services, to his knowledge no one at Oak Park Healthcare Center has followed up on his requests.
24. Mr. Colbert wishes to live independently in the community with periodic nursing services and other appropriate supports. His family supports his desire to live in the community.
25. Mr. Colbert is capable of living in the community, which is, for him, the most integrated setting appropriate to his needs. However, under Defendants’ system of care, Mr. Colbert has only been offered long-term care in an institutional, nursing facility setting.
26. Plaintiff CONSTANCE GRAY is forty-nine-year old woman who currently resides at California Gardens Nursing and Rehabilitation Center (“California Gardens”), a nursing facility located in Chicago, Illinois.
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27. Ms. Gray has asthma and chronic obstructive pulmonary disease (“COPD”). She also sometimes uses a wheelchair for mobility. She is eligible for and receives Medicaid.
28. Despite her disabilities, Ms. Gray does not require extensive nursing care or oversight. The healthcare and personal assistance services she receives in the nursing facility could be provided in the community. Defendants provide funding for disability services in the community for a limited number of people situated similarly to Ms. Gray without conditioning receipt of such services on placement in a nursing facility.
29. Ms. Gray graduated from Kennedy-King College with an associate’s degree. Prior to becoming disabled, Ms. Gray worked as a caregiver and personal assistant.
30. In early 2003, Ms. Gray had three brain aneurysms for which she was treated at University of Chicago Hospital. She was later transferred to Mount Sinai Hospital for rehabilitative treatment of her aneurysms. In February 2003, Ms. Gray was transferred to California Gardens, her current nursing facility. Defendants did not offer, inform or provide to Ms. Gray any other options such as home- or community-based healthcare.
31. Residents of California Gardens are typically required to obtain passes from the nurses, sign in and out upon departure and return, and notify the nursing home of their intended destinations and estimated times of return. Residents may not stay overnight elsewhere.
32. Ms. Gray has encountered abuse at the hands of other residents at California Gardens. Another resident, without cause or provocation, physically attacked and punched Ms. Gray. She was hospitalized for one week to recover from her injuries.
33. Ms. Gray seeks to live in the community, preferably with a friend and caretaker, or with periodic nursing services. She is capable of living in the community with appropriate
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supports and services. However, under Defendants’ system of care, Ms. Gray has only been offered long-term care in an institutional, nursing facility setting.
34. Plaintiff ERNEST REEVES is a fifty-six-year-old man who currently resides at Renaissance at Midway, a nursing facility located in Chicago, Illinois.
35. Mr. Reeves is paralyzed due to a spinal cord injury and uses a wheelchair for mobility. He is eligible for and receives Medicaid.
36. Despite his disabilities, Mr. Reeves does not require extensive nursing care or oversight. The healthcare and personal assistance services he receives in the nursing facility could be provided in the community. Defendants provide funding for disability services in the community for a limited number of people situated similarly to Mr. Reeves without conditioning receipt of such services on placement in a nursing facility.
37. Before moving to the nursing facility, Mr. Reeves worked as a window cleaner on high-rise office buildings in downtown Chicago, and eventually owned and operated a window cleaning business. More recently, Mr. Reeves worked on renovating residential properties. In the course of that work, Mr. Reeves fell through the roof of a two-story property and broke his spinal cord, resulting in paralysis.
38. Mr. Reeves received treatment at several hospitals and rehabilitation facilities. Eventually, he moved to International Village, located in Chicago, where he resided for approximately six months. Mr. Reeves developed bed sores and other ailments at International Village due to lack of proper health care.
39. Approximately four years ago, Mr. Reeves transferred from International Village to Renaissance at Midway, his current nursing facility.
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40. Although Mr. Reeves is allowed to leave the nursing facility, he is required to receive permission beforehand and generally must return by 9:00 p.m.
41. Mr. Reeves has had numerous personal items stolen from him at the nursing facility, including cash from his wallet, clothing, and electronics. The nursing facility compensated Mr. Reeves $200 for stolen clothing, but did not compensate him for any other stolen items.
42. At no time did the Defendants offer, inform, or provide to Mr. Reeves his options for community-based services upon his admission to the nursing facilities. Beginning roughly one year ago, Mr. Reeves began asking the staff at Renaissance at Midway to inquire about the possibility of moving to the community. Although staff promised to do so, they never followed up with Mr. Reeves.
43. Mr. Reeves believes his life would improve if he were able to live in the community again. Mr. Reeves would like to work, live on his own and become economically self-sufficient.
44. Mr. Reeves is capable of living in the community, which is, for him, the most integrated setting appropriate to his needs. However, under Defendants’ system of care, Mr. Reeves has only been offered long-term care in an institutional, nursing facility setting.
45. Plaintiff KENYA LYLES is a thirty-two-year-old woman who is a resident of the California Gardens Nursing and Rehabilitation Center in Chicago, Illinois.
46. Ms. Lyles has seizures, high blood pressure, kidney failure for which she receives dialysis. She is eligible for and receives Medicaid.
47. Despite her disabilities, Ms. Lyles does not require extensive nursing care or oversight. The healthcare and personal assistance services she receives in the nursing facility
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could be provided in the community. Defendants provide funding for disability services in the community for a limited number of people situated similarly to Ms. Lyles without conditioning receipt of such services on placement in a nursing facility.
48. Ms. Lyles is from Chicago. She graduated from Philips High School and attended Southern Illinois University.
49. Ms. Lyles was admitted at California Gardens following a stay at South Shore Hospital, where she had been treated for a kidney-related condition. Upon admission, Ms. Lyles was told she would be in the nursing facility for only one or two weeks.
50. After one or two weeks, Ms. Lyles was ready to leave California Gardens, and her sister had come to the premises to pick her up and take her home. However, the on-site nursing home social worker told Ms. Lyles that if she left, she would no longer receive necessary medications. Against her personal desires, Ms. Lyles remained in the facility.
51. Ms. Lyles finds living at California Gardens to be “hectic,” and is uncomfortable with the number of people. She has found random persons going through her room and looking through her personal items and has also had personal items stolen.
52. Ms. Lyles must share a room and bathroom with three roommates. There is a communal shower down the hall which Ms. Lyles does not use because other residents sometimes urinate and defecate in the shower. Instead, she washes herself in her bathroom and showers only when she visits her family.
53. During the day at California Gardens, Ms. Lyles sits in her room and watches television. She does little else there.
54. No one at California Gardens has ever discussed community living options with Ms. Lyles, either upon admission or afterwards.
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55. Ms. Lyles is capable of living in the community, which is, for her, the most integrated setting appropriate to her needs. However, under Defendants’ system of care, Ms. Lyles has only been offered long-term care in an institutional, nursing facility setting.
56. Plaintiff DWIGHT SCOTT is a fifty-four-year-old man who currently resides in Glenshire Nursing and Rehabilitation Center, a nursing facility located in Richton Park, Illinois.
57. Mr. Scott has paralysis on his left side of his body as a result of a stroke and uses a wheelchair. He is eligible for and receives Medicaid.
58. Despite his disabilities, Mr. Scott does not require extensive nursing care or oversight. The healthcare and personal assistance services he receives in the nursing facility could be provided in the community. Defendants provide funding for disability services in the community for a limited number of people situated similarly to Mr. Scott without conditioning receipt of such services on placement in a nursing facility.
59. Before entering the nursing facility, Mr. Scott worked as a regional supervisor at a medical supply company. Mr. Scott managed delivery operations for the region and was based in Hammond, Indiana. He attended high school in Chicago and graduated from Washburn Trade School.
60. On or about February 15, 2006, Mr. Scott had a stroke while driving on the highway. Mr. Scott was treated at various hospitals and ultimately referred to Schwab Rehabilitation Hospital in Chicago. At Schwab, Mr. Scott began to undergo physical therapy treatment for paralysis that resulted from his stroke.
61. Following rehabilitation, Mr. Scott was admitted to Glenshire Nursing and Rehabilitation Center, where he has lived ever since.
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62. Defendants did not offer, inform, or provide to Mr. Scott his options for community-based services upon admission to the nursing facility.
63. When Mr. Scott arrived at Glenshire, he was assigned a room on the second floor in a unit for residents recovering from strokes. When the unit began undergoing renovations, Mr. Scott was moved to the fourth floor of the facility, which houses residents with psychiatric disabilities and Alzheimer’s, even though Mr. Scott has no such disabilities.
64. While at Schwab Rehabilitation Hospital, Mr. Scott was progressing well under an aggressive regimen of physical therapy. He has since languished at the nursing facility and his joints are becoming stiff, making mobility increasingly difficult.
65. Mr. Scott seeks to live in a community setting in his own apartment, preferably in a community for senior citizens, with periodic nursing services, so he could maintain his independence.
66. Mr. Scott is capable of living in the community, which is, for him, the most integrated setting appropriate to his needs. However, under Defendants’ system of care, Mr. Scott has only been offered long-term care in an institutional, nursing facility setting.
67. Defendant PAT QUINN is the Governor and chief executive officer of the State of Illinois. He is responsible for directing, supervising and controlling the executive departments of state government. Governor Quinn is ultimately responsible for ensuring that Illinois operates its long-term care system for people with disabilities in conformance with federal law. He is sued in his official capacity and only for prospective injunctive relief.
68. Defendant CAROL L. ADAMS is the Secretary of the Illinois Department of Human Services (“DHS”), the state agency responsible for administering Illinois’ long-term care system for people with disabilities. Secretary Adams is responsible for the oversight,
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supervision and control of DHS and its divisions and is ultimately responsible for ensuring that DHS’ services for people with disabilities are provided in conformance with federal law. She is sued in her official capacity and only for prospective injunctive relief.
69. Defendant BARRY S. MARAM is the Director of the Illinois Department of Healthcare and Family Services, the “single state agency” that operates Illinois’ Medicaid program. See 42 U.S.C. § 1396a(a)(5). Defendant Maram is responsible for oversight, supervision, control and implementation of Illinois’ Medicaid program and assuring its compliance with federal law. He is sued in his official capacity and only for prospective injunctive relief.
70. Defendant DAMON T. ARNOLD, M.D., is the Director of the Illinois Department of Public Health, the state agency responsible for licensing, regulating, and inspecting all nursing facilities in Illinois to determine compliance of Illinois’ long-term care program with federal law, including Medicaid. See 42 U.S.C. § 1396a(a)(9). He is sued in his official capacity and only for prospective injunctive relief.
71. Defendant CHARLES D. JOHNSON is the Director of the Illinois Department on Aging (“DOA”), the state agency responsible for administering Illinois’ long-term care program for elderly people. Defendant Johnson is responsible for oversight, supervision, and control of DOA and its divisions and is ultimately responsible for ensuring that DOA’s services are provided in conformance with federal law. He is sued in his official capacity and only for prospective injunctive relief. IV. CLASS ACTION ALLEGATIONS
72. Pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure, Plaintiffs bring this action as a class action on behalf of all Medicaid-eligible adults with
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disabilities in Cook County, Illinois, who are being, or may in the future be, unnecessarily confined to nursing facilities and with appropriate supports and services may be able to live in a community setting.
73. The size of the class is so numerous that joinder is impracticable. Over 20,000 Medicaid-eligible nursing facility residents live in Cook County. According to the Centers for Medicare and Medicaid Services, over 7,000 Cook County nursing facility residents have said they would rather live in the community, and Plaintiffs believe the actual number may be higher. Joinder is also impracticable because the class is not static and because class members lack the knowledge and financial means to maintain individual actions.
74. There are questions of law and fact common to the class, and the claims of the named Plaintiffs are typical of those of the class. These claims include:
a. whether Defendants violate the integration mandates of the ADA and Section 504 by requiring Plaintiffs and class members to be segregated and confined to nursing facilities in order to receive long-term care services, rather than providing those services in appropriate, integrated settings in their homes and communities;
b. whether Defendants fail to ensure that comprehensive, appropriate assessments – including those required under the Nursing Home Reform Act and Medicaid – are conducted to determine the need for institutionalization for class members at risk of institutionalization or class members’ discharge potential;
c. whether Defendants fail effectively to inform Plaintiffs and class members of community-based long-term care alternatives to nursing facilities; and
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d. whether Defendants fail to provide nursing facility residents with community longterm care services with reasonable promptness, as required under federal Medicaid law.
75. The representative parties will fairly and adequately protect the interests of the class. The named Plaintiffs will vigorously represent the interests of unnamed class members, and all members of the proposed class will benefit from the efforts of the named Plaintiffs. The interests of the proposed class and the named Plaintiffs are identical.
76. Defendants, their agents, employees, and predecessors and successors in office have acted or will act on grounds generally applicable to the class, thereby making injunctive or declaratory relief appropriate to the class as a whole. V. STATEMENT OF FACTS
A. History of the “Integration Mandates” of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act
77. On July 26, 1990, President George H.W. Bush signed the ADA, 42 U.S.C. §§ 12101-12181, establishing the most important civil rights laws for persons with disabilities in our nation’s history.
78. In enacting the ADA, Congress was particularly concerned about the unnecessary segregation and institutionalization of people with disabilities and the resulting lack of full participation in and access to community services and activities. It found that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2).
79. Congress further found that “discrimination against individuals with disabilities persists in … institutionalization … and access to public services.” 42 U.S.C. § 12101(a)(3).
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80. Title II of the ADA prohibits public entities, including Defendants, from discriminating against persons with disabilities whom they serve. 42 U.S.C. §§ 12131-32.
81. Regulations implementing the ADA require that “a public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of” people with disabilities. 28 C.F.R. § 35.130(d). Section 504, on which the ADA is modeled, contains an identical requirement. 28 C.F.R. § 41.51(d).
82. Segregation of persons with disabilities from society as a result of unnecessary institutionalization constitutes discrimination under Title II. Olmstead, 527 U.S. at 587. Unnecessary institutionalization is discriminatory because, the Supreme Court noted, “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable and unworthy of participating in community life” and “confinement in an institution severely diminishes the everyday life activities of individuals, including family options, social contacts, economic independence, educational advancement, and cultural enrichment.” Id. at 600.
B. The State-Federal Medicaid Program 83. Medicaid is a joint federal and state program that provides medical services to low-income persons pursuant to Title XIX of the Social Security Act. 42 U.S.C. §§ 1396-1396v. 84. States are not required to participate in Medicaid, but if they do, they must comply with the requirements of Title XIX and its implementing regulations promulgated by the U.S. Department of Health & Human Services (“HHS”). States who participate must further submit to HHS a state Medicaid plan that fulfills the requirements of Title XIX. 42 U.S.C. § 1396a(a).
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85. One of the primary purposes of Medicaid is “to furnish … rehabilitation and other services to help families and individuals attain or retain capability for independence and self care ….” 42 U.S.C. § 1396. Each participating State’s Medicaid plan must contain reasonable standards to determine the extent of services needed to obtain these objectives. 42 U.S.C. § 1396a(a)(17).
86. Individuals are eligible for Medicaid if they are either “categorically needy” or “medically needy.” Individuals who, for example, receive Supplemental Security Income ("SSI") benefits are deemed “categorically needy.”
87. Certain services are mandatory under Title XIX and must be provided to all persons considered “categorically needy.” 42 U.S.C. § 1396a(a)(10)(A)(i) (incorporating 42 U.S.C. § 1396d(a)(1)-(5), (17), (21)). “Mandatory” services include services in a skilled nursing facility. Id.
88. Medicaid also allows states to provide, at their option, in-home and community services, including home healthcare services, private-duty nursing, home and community care for functionally disabled elderly individuals, personal care services, and any other medical and remedial care recognized under state law. 42 U.S.C. § 1396d(a). Once a state elects to provide an optional service, it becomes part of the state’s Medicaid plan and is subject to the requirements of Title XIX. 42 U.S.C. § 1396a(a)(1). Title XIX also requires that states ensure “the inclusion of home health services for any individual who, under the state plan, is entitled to nursing facility services.” 42 U.S.C. § 1396a(a)(10)(D).
89. Additionally, Medicaid allows states to waive certain requirements in order to enable people with disabilities to avoid institutionalization and receive long-term care services in
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the community. 42 U.S.C. § 1396n(c). These programs are known as Home and Community Based Services “waivers.”
C. The Nursing Home Reform Act 90. The Nursing Home Reform Act (“NHRA”), which is part of Title XIX, was enacted in 1987 to address the widespread problem of warehousing people with disabilities in nursing facilities. As part of their Medicaid plans, States must ensure that the care and services provided by nursing facilities to Medicaid-eligible individuals are consistent with the NHRA’s requirements. 42 U.S.C. § 1396a(a)(28)(A). 91. Under the NHRA, each nursing facility resident, upon admission and periodically thereafter, must be provided with a comprehensive assessment of his or her functional capacity, including the resident’s potential for discharge to the community. The resident must be involved in the assessment process, and the assessment must be updated quarterly. 42 U.S.C. § 1396r; 42 C.F.R. § 483.20. Residents must also, when appropriate, receive “sufficient preparation” to ensure their “safe and orderly transfer or discharge” from the nursing facility. 42 C.F.R. § 483.12(a)(7). 92. The NHRA further addresses the problem of unnecessary institutionalization or warehousing of people with psychiatric or developmental disabilities in nursing homes. To this end, special pre-admission screening and resident reviews are required for all individuals believed to have a psychiatric or developmental disability to determine whether a nursing facility level of care is needed, and whether these same services could be provided in the community. 42 U.S.C. §§ 1396r(b)(3)(F)(i), 1396r(e)(7)(A) & (B); 42 C.F.R. §§ 483.112, 483.128, 483.132, 483.134, 483.136.
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D. Illinois’ Long-Term Care System for People with Disabilities 93. Illinois participates in Medicaid and, as such, offers and provides nursing facility services to Medicaid-eligible people with disabilities who qualify for long-term care. Defendants provide these services through privately owned and operated nursing facilities, many of which are for-profit businesses. 94. Defendants also provide in-home and community services to persons who would otherwise qualify for nursing facility services. These programs are also funded under Medicaid, either under the Home Health option or through a Home and Community Based Services waiver. Under these programs, people with disabilities live independently with community-based supports and services, including healthcare, personal attendant care, and other long-term care services otherwise found in nursing facilities. 95. For some people with disabilities served in the community, Defendants contract with private home health agencies to provide in-home community long-term care. Other people with disabilities served in the community hire their own caregivers and attendants, whose wages are paid by Defendants. DHS has recognized that the cost of these community programs is “far below the average annual nursing home cost.” 96. Despite the fact that many, perhaps most, seniors and people with disabilities prefer to live in the community, Defendants have dedicated the vast majority of Illinois’ longterm care funding – nearly 80% – to nursing facility and other institutional services – one of the highest rates in the nation. For people with physical disabilities, Illinois’ per capita spending on nursing facilities is nearly four times that for home and community care. As a result, community services are chronically unavailable to many who need and want them, effectively compelling institutionalization of people with disabilities.
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E. Nursing Facilities in Cook County 97. According to the Illinois Department of Public Health, 241 nursing facilities operate in Cook County, of which 190 are certified to serve Medicaid long-term care recipients. Four of these facilities have between 300-400 residents, another 38 have between 200-300 residents, and 112 have between 100-200 residents. 98. Over 31,000 people in Cook County live in nursing facilities. Over 20,000 have Medicaid as their primary payment source and over 7,400 – nearly 24% – are under age 65. In six of the ten largest facilities, the majority of residents are not elderly. 99. Most nursing facility residents are admitted from acute care hospitals or from their own homes because they lack access to in-home healthcare. Most individuals are not assessed upon admission to determine whether services could be provided in their existing homes or in the community. 100. Once Medicaid-eligible individuals are admitted to nursing facilities, they must turn over most of their assets and income, including Supplemental Security Income from Social Security, to the state and nursing facility. Residents receive an allowance of $30.00 per month. As a result, residents are often unable to continue paying rent or mortgages and accordingly lose the home they had before entering the nursing facility. Residents also lack resources to obtain community services and housing on their own. They often cannot afford even basic transportation costs to leave the facility, whether to pursue community services or for any other purpose. 101. Nursing facilities are not real homes or even home-like, but rather are segregated institutions housing large numbers of unrelated persons, both elderly and non-elderly, in congregate settings, where residents must share bedrooms, bathrooms and living spaces with
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strangers. A June 12, 2000 DHS memorandum reported that former nursing facility residents “almost universally describe[d] their transition from these institutions back into the community as ‘being freed from jail.’”
102. Although the majority of nursing facility residents have primarily physical disabilities, many residents have mental illness as their primary diagnosis, and some are primarily developmentally disabled. Nursing facilities neither provide, nor are designed to provide, significant treatment, rehabilitation and therapy for these individuals. Their care is primarily custodial, despite the residents’ need for treatment or rehabilitation.
103. Many nursing facility residents are, for the most part, neither integrated into nor part of the communities in which they live. Residents have limited access to the community and it is difficult, if not impossible, for them to participate in community activities such as government, churches or clubs.
104. Nursing facility residents are often denied meaningful access to educational and employment opportunities by virtue of the congregate environments in which they live and the limited supports that are provided to them.
105. Many nursing facilities resemble hospitals. They have nurses’ stations and often have locked doors, curfews and, at times, guards posted to monitor persons entering and leaving the facility.
106. There is little, if any, privacy for nursing facility residents who share rooms and bathrooms with up to five residents whom they did not know previously and with whom they did not choose to live. In some facilities, entire wards share bathrooms and shower facilities. Medications are often dispensed publicly, with residents waiting in line.
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107. Nursing facility residents often lack their own telephones, and are often restricted in the use of the nursing facility telephones.
108. Nursing facilities offer few places for residents to gather or safeguard their personal belongings. Many residents report that their personal property has been stolen or damaged.
109. Nursing facility residents have little, if any, choice on what to eat, when to eat, or with whom to eat.
110. Nursing facilities often employ restrictive practices such as limiting telephone use by residents, limiting residents’ ability to come and go from the facility, confining residents to locked floors or wards, and utilizing medically-inappropriate referrals for short-term inpatient psychiatric admission.
F. Residents’ Desire and Ability to Live in the Community 111. The Centers for Medicare and Medicaid Services of the U.S. Department of Health and Human Services (“CMS”) publishes quarterly data on nursing facility residents. This data, called the “Minimum Data Set” (“MDS”), is collected by nursing facilities and sent to each state’s Medicaid single state agency, which then sends it to CMS. See 42 C.F.R. § 483.20(c). 112. The MDS reports that in Cook County, 60.9% of residents under age 65, and whose care is not paid for by Medicare, have expressed or indicated to their nursing facility that they want to live in the community instead of a nursing facility. For such residents over age 65, 31.4% have told their nursing facility they desire to live in the community. There is reason to believe the actual number may be far higher. The majority of these residents are Medicaideligible.
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113. Many nursing facility residents could be served safely and appropriately in the community if long-term care and services were available there. When appropriate supports and services have been provided, persons with disabilities, of all ages and multiple levels of disability, have successfully moved into or remained in the community in order to live more independently.
G. Defendants’ Failure to Serve Class Members in the Community 114. Defendants have not ensured that nursing facility residents are properly evaluated, whether prior to admission or thereafter, to determine whether they could be served adequately and safely in the community. The nursing facilities with which Defendants contract to provide long-term care services routinely fail to conduct any meaningful evaluation of residents’ ability to live in the community or any meaningful discharge planning. 115. Defendants, and the nursing facilities with whom they contract, routinely fail to provide residents with information and choices on integrated, home- and community-based longterm care alternatives. 116. Defendants have failed to provide Plaintiffs and class members with integrated long-term care services in the community. Instead, Defendants administer Illinois’ long-term care system in a manner that requires Plaintiffs and class members to submit to unnecessary, segregated nursing facility placement as a condition of receiving long-term care services. VI. CAUSES OF ACTION
Count I: Violations of the Americans with Disabilities Act
117. Plaintiffs re-allege and incorporate Paragraphs 1-116 as if fully set forth herein. 118. Title II of the Americans with Disabilities Act provides that “no qualified individual with a disability shall, by reason of disability, be excluded from participation in or be
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denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C. § 12132.
119. Each Plaintiff and class member is a “qualified individual with a disability” within the meaning of the ADA in that he or she has a physical and/or mental impairment that substantially limits one or more major life activities. Plaintiffs and class members meet the essential eligibility requirements for long-term care under Illinois’ Medicaid program and are thus “qualified.”
120. Defendants are public agency directors responsible for operation of a public entity, pursuant to 42 U.S.C. §§ 12131(1)(A) & (B).
121. Regulations implementing Title II of the ADA require that a public entity administer its services, programs and activities in “the most integrated setting appropriate” to the needs of qualified individuals with disabilities. 28 C.F.R. § 35.130(d).
122. The ADA’s implementing regulations further provide that “a public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the entity’s program with respect to individuals with disabilities ….” 28 C.F.R. § 35.130(b)(3).
123. Defendants have required that Plaintiffs and class members be confined unnecessarily in institutions, i.e., nursing facilities, rather than permit them to reside in the community in order to obtain long-term care services in violation of the ADA’s integration mandate.
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124. Further, Defendants have utilized criteria and methods of administration that subject Plaintiffs and class members to discrimination on the basis of disability, including unnecessary institutionalization, by (1) failing to assess properly the services and supports that would enable Plaintiffs and class members to live in the community, (2) failing to inform Plaintiffs and class members, upon admission and thereafter, of community long-term care options, and (3) allocating resources for institutional long-term care contrary to the desires and needs of people with disabilities.
125. Defendants’ actions are in violation of Title II of the ADA.
Count II: Violations of Section 504 of the Rehabilitation Act
126. Plaintiffs re-allege and incorporate Paragraphs 1-125 as if fully set forth herein. 127. Section 504 of the Rehabilitation Act states that “[n]o otherwise qualified person with disabilities shall, solely by reason of his or her disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” 29 U.S.C. § 794(a). 128. Defendants direct state agencies that receive federal financial assistance. 129. Each Plaintiff and class member is a “qualified person with disabilities” within the meaning of Section 504, because they have physical and/or mental impairments that substantially limit one or more major life activities. Plaintiffs and class members meet the essential eligibility requirements for long term care under Illinois’ Medicaid program and are thus “qualified.” 130. Regulations implementing Section 504 require that a public entity administer its services, programs and activities in “the most integrated setting appropriate” to the needs of qualified individuals with disabilities. 28 C.F.R. § 41.51(d).
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131. Section 504’s regulations prohibit recipients of federal financial assistance from “utiliz[ing] criteria or methods of administration ... (i) [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program with respect to handicapped persons.” 45 C.F.R. § 84.4(b)(4); 28 C.F.R. § 41.51(b)(3)(I).
132. Defendants have required that Plaintiffs and class members be confined unnecessarily in institutions, i.e., nursing facilities, rather than the community in order to obtain long-term care services, in violation of Section 504’s integration mandate.
133. Further, Defendants have utilized criteria and methods of administration that subject Plaintiffs and class members to discrimination on the basis of disability, including unnecessary institutionalization, by (1) failing to assess properly the services and supports that would enable Plaintiffs and class members to live in the community, (2) failing to inform Plaintiffs and class members, upon admission and thereafter, of community long-term care options, and (3) allocating resources for institutional long-term care contrary to the desires and needs of people with disabilities.
134. Defendants’ actions are in violation of Section 504 of the Rehabilitation Act.
Count III: Violations of Title XIX of the Social Security Act
135. Plaintiffs re-allege and incorporate Paragraphs 1-134 as if fully set forth herein. 136. Plaintiffs and class members are eligible for Medicaid. 137. As participants in the federal-state Medicaid program, Defendants must comply with all applicable provisions of Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396v, in their administration of Illinois’ Medicaid program.
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A. Violations of the Nursing Home Reform Act
138. Title XIX of the Social Security Act requires that each state’s Medicaid plan “provide … that any nursing facility receiving payments under such plan must satisfy all the requirements of [the Nursing Home Reform Act].” 42 U.S.C. § 1396a(a)(28)(A).
139. The Act requires nursing facilities to conduct and implement comprehensive assessments and “sufficient preparation” for residents’ discharge from the facility if professionally appropriate. 42 U.S.C. § 1396r(b)(3)(A); 42 C.F.R. §§ 483.12, 483.20.
140. The Act further mandates special pre-admission screening and resident reviews for residents with mental illness or developmental disabilities. These evaluations, which must be conducted at admission and annually thereafter, must determine whether nursing facility level of care is required and whether such services could be provided in the community. 42 U.S.C. §§ 1396r(b)(3)(F), 1396r(e)(7)(A)&(B); 42 C.F.R. §§ 483.128, 483.132, 438.134 & 483.136.
141. Defendants have violated the rights of Plaintiffs and class members under the Act by failing to provide or ensure provision of timely and comprehensive assessments and quarterly reviews to determine discharge potential and the appropriateness of community-based long-term care options.
B. Failure to Provide Services with Reasonable Promptness
142. Title XIX of the Social Security Act requires that Medicaid services be furnished to eligible individuals, and without delay caused by the state agency’s administrative procedures. 42 U.S.C. § 1396a(a)(8); 42 C.F.R. § 435.930(a).
143. Defendants’ policies, practices, acts and omissions concerning administration of Illinois’ long-term care program have denied or extensively delayed provision of medicallynecessary long-term care services in the community that are otherwise available under the state
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Medicaid plan. As a result, Defendants have denied Plaintiffs and class members the reasonably prompt provision of community long-term care services, in violation of the Social Security Act.
C. Failure to Provide Timely and Adequate Notice and Choice of Community Care
144. Title XIX of the Social Security Act requires that any individual determined to need the level of care provided by a nursing facility must be informed of feasible alternatives under the state’s Home and Community Based Services ("HOBS") waiver and be given a choice between nursing facility or waiver services. 42 U.S.C. § 1396n(c)(2)(C).
145. Illinois has HCBS waivers that provide a variety of feasible alternatives to nursing facility care, including home-based and community long-term care.
146. Defendants have failed to inform nursing facility residents, or ensure that residents are informed, of feasible, integrated, community-based alternative services under the HCBS waivers, and have failed to provide residents a choice between such services, in violation of Title XIX. VII. REQUESTED RELIEF
WHEREFORE, Plaintiffs, individually and on behalf of the class, respectfully request that the Court:
A. Enter an order certifying the Plaintiff class; B. Declare that Defendants’ failure to provide Plaintiffs with services in the most integrated setting appropriate to their needs violates Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, Title XIX of the Social Security Act, and the federal Nursing Home Care Act; C. Enjoin Defendants to:
27

Case 1:07-cv-04737 Document 139 Filed 09/29/2009 Page 28 of 30

D. and
E.

(1) inform Plaintiffs and class members that they may be eligible for community services and that they have the choice of such services;
(2) provide comprehensive assessments, evaluations and screenings to determine Plaintiffs’ and class members’ eligibility for community services, both prior to and after admission to nursing facilities;
(3) provide, as appropriate, Plaintiffs and class members with long-term care services and supports in the community and refrain from providing long-term care only in institutional settings.
Award Plaintiffs their reasonable attorneys’ fees, litigation expenses and costs;
Grant such other relief as the Court deems just and proper.

DATED: September 29, 2009
115 Chicago, Tel: Fax:

s/ Kim Borowicz Edward B. Mullen III Kim Borowicz ACCESS LIVING
W. Chicago Ave. IL 60654
312-640-2131 312-640-2139
Stephen D. Libowsky Angela M. Barry HOWREY, LLP 321 North Clark Street Suite 3400 Chicago, IL 60654 Tel: 312-846-5681 Fax: 312-595-2250
Benjamin S. Wolf AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS
28

Case 1:07-cv-04737 Document 139 Filed 09/29/2009 Page 29 of 30
180 N. Michigan Avenue Suite 2300 Chicago, IL 60601 Tel: 312-201-9740 Fax: 312-253-7001 Karen I. Ward EQUIP FOR EQUALITY 20 N. Michigan Avenue Suite 300 Chicago, IL 60602 Tel: 312-341-0022 Fax: 312-341-0295 Stephen F. Gold LAW OFFICES OF STEPHEN F. GOLD 125 South Ninth Street Suite 700 Philadelphia, PA 19107 Attorneys for Plaintiffs and the Class
29

Case 1:07-cv-04737 Document 139 Filed 09/29/2009 Page 30 of 30

 </s> Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 1 of 61 PageID #:1258
EXHIBIT A

Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 2 of 61 PageID #:1259

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LENIL COLBERT, et al., Plaintiffs, v.
PAT QUINN, et al., Defendants.

)

)

)

)

No. 07 C 4737

)

)

Judge Joan Humphrey Lefkow

)

Magistrate Judge Maria Valdez

)

)

)

PROPOSED CONSENT DECREE

Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 3 of 61 PageID #:1260
TABLE OF CONTENTS INTRODUCTION AND BACKGROUND ................................................................................... 1 DECREE ......................................................................................................................................... 2 I. JURISDICTION ................................................................................................................. 2 II. PURPOSE ........................................................................................................................... 2 III. CLASS DEFINITION ........................................................................................................ 2 IV. DEFINITION OF TERMS ................................................................................................. 2 V. THE DISABILITY SERVICES SYSTEM ....................................................................... 12 VI. EVALUATIONS AND SERVICE PLANS ..................................................................... 12 VII. OUTREACH ..................................................................................................................... 19 VIII. IMPLEMENTATION ....................................................................................................... 19 IX. MONITORING AND COMPLIANCE ............................................................................ 22 X. CLASS REPRESENTATIVES ........................................................................................ 25 XI. ATTORNEYS' FEES AND COSTS ................................................................................ 25 XII. MISCELLANEOUS PROVISIONS ................................................................................. 25
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 4 of 61 PageID #:1261
INTRODUCTION AND BACKGROUND Plaintiffs,1 a class of Illinois residents with disabilities living in Nursing Facilities in Cook County, Illinois, filed this lawsuit on August 22, 2007, seeking declaratory and injunctive relief to redress alleged violations of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-32, Section 504 ofthe Rehabilitation Act, 29 U.S.C. § 794(a), and the Social Security Act, 42 U.S.C. §§ 1396-1396v (SSA). Plaintiffs allege that they are unnecessarily segregated and institutionalized in Nursing Facilities and forced to live with numerous other people with disabilities in violation of the ADA and the Rehabilitation Act, which require Illinois to administer services in the most integrated appropriate setting. Plaintiffs allege that Defendants have denied them the opportunity to live in appropriate integrated settings where they could lead more independent and more productive lives in their own communities. Plaintiffs seek injunctive relief requiring that Defendants (1) inform Plaintiffs as to their eligibility for Community-Based Services and their choice of such services; (2) provide comprehensive evaluations to determine the eligibility of Plaintiffs for CommunityBased Services, both prior to and after admission to Nursing Facilities; and (3) provide, as appropriate, Plaintiffs with services and supports in the Community-Based Setting and refrain from providing services only in institutional settings. Defendants deny liability and specifically deny that they have violated the ADA, the Rehabilitation Act, or the SSA. Therefore, upon all of the foregoing, and the Court being otherwise fully advised, the Court hereby ORDERS, ADJUDGES and DECREES as follows:
DECREE
Capitalized terms set forth herein are defined in Section IV, "Definition of Terms." All other terms will have the meaning ordinarily attributed to them.

Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 5 of 61 PageID #:1262
I. JURISDICTION The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and28 U.S.C. §
1343. II. PURPOSE
This Consent Decree shall assure that Defendants provide Plaintiffs and Class Members with the opportunity to receive the full array of supports and services they need in the most integrated settings appropriate to their needs, including Community-Based Settings, and to promote the development of integrated settings that attempt to maximize individuals' independence, choice, opportunities to develop and use independent living skills, and that attempt to afford them the opportunity to live their lives similar to individuals without disabilities. III. CLASS DEFINITION
On September 29, 2008, the Court certified a class of all Medicaid-eligible adults with disabilities, who are being, or may in the future be, unnecessarily confined to Nursing Facilities located in Cook County, Illinois, and who with appropriate supports and services may be able to live in a Community-Based Setting.2 IV. DEFINITION OF TERMS
A As used herein, the following terms have the following meanings:

2

Although there are Class Members of different ages, Class Members are members of the

class not by virtue of their age but by virtue of having either a physical disability or a

Mental Illness. Under the State's current service delivery system, such Class Members

might be served under different programs administered by different agencies, based in

part on age. The relief to which a Class Member is entitled will be determined by a Class

Member's needs, qualified by the fact that Class Members may be served under different

programs.

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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 6 of 61 PageID #:1263
1. "Approval Date" means the date on which the Court enters this Consent Decree.
2. "Class Counsel" means SNR Denton US LLP, Access Living of Metropolitan Chicago, Equip for Equality, the Roger Baldwin Foundation of ACLU, Inc., and the Law Offices of Stephen F. Gold.
3. "Class" and "Class Members" mean the persons who meet the definition set forth in Section III, above, and Section IV.A. 3 or 4 below.
4. "Class Members with Mental Illness" are those Class Members who have a primary diagnosis of Mental Illness as defined herein.
5. "Class Members with Physical Disabilities" are those Class Members who have a disability as defined in the ADA, the Rehabilitation Act or the SSA other than a Mental Illness or a developmental disability.
6. "Class Representatives" means Lenil Colbert, Ernest Reeves and Kenya Lyles.
7. "Community-Based Services" means those services provided to a person living in a Community-Based Setting under the Illinois Medicaid State Plan, services provided under any applicable HCBS Waiver, services described in the Medicaid Community Mental Health Services Program administered by the Illinois Department of Human Services' Division of Mental Health and authorized pursuant to 59 Ill. Adm. Code Part 132 (hereafter referenced as Rule 132) in effect as of the Approval Date, including any subsequent amendments thereto, services listed in the State of Illinois Community Mental Health Services Reimbursement Guide or services provided pursuant to any other similar government programs.
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 7 of 61 PageID #:1264
8. "Community-Based Setting" means the most integrated setting appropriate to promote a Class Member's independence in daily living and ability to interact with persons without disabilities to the fullest extent possible. A Community-Based Setting may include, as is appropriate to the Class Member, a Private Residence, a Supportive Living Facility, Permanent Supportive Housing, or other appropriate supported or supervised residential. settings that are specifically chosen by the Class Member or where the Class Member has one of the conditions enumerated in Section VI(D)(3) below.
9. "Cost Neutral Plan" means the plan developed by the Parties and Monitor as provided in Section VI.C 4 and 5 herein. The Cost Neutral Plan must include agreed upon time periods during which Defendants will transition Class Members to Community-Based Settings such that, based on the criteria described herein and set forth in more detail in the plan, the transitions of Class Members cost the same or less to the State in the aggregate as if those Class Members instead had remained in Nursing Facilities. For purposes of the Cost Neutral Plan, data and other information regarding costs shall be collected and analyzed as follows: a) The Parties first shall calculate, for each transitioned Class Member, the State's total annualized cost for the Class Member's previous year's stay in the Nursing Facility and the total annualized cost for the Class Member's other Medicaid eligible expenses and shall then subtract all items that reduce the State's cost, including the Class Member's contributions, if any,
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 8 of 61 PageID #:1265
from Social Security, SSDI, pension or other sources, and any Federal Medicaid match. For example, the State's total annual cost of$46,000, minus a Class Member's contribution of$7,560 ($630/month) equals $38,440, minus the standard fifty percent (50%) Medicaid match of$19,220 equals the State's net annual cost of$19,220.
b) The Parties shall track each Class Member who is transitioned to a Community-Based Setting and determine the State's net annual cost for each Class Member by: (i) adding up the State's total annual payments to the community provider(s) and other Medicaid eligible expenses for the Class Member, (ii) adding an agreed-upon amortized portion of the Transition Costs or other one-time costs paid to or on behalf of the Class Member, (iii) adding an agreed-upon amortized portion of any additional agreedupon administrative or collateral costs incurred by the State as a result of implementation ofthis Decree (e.g., hiring Evaluators; costs directly related to persons choosing to enter Nursing Facilities who, but for this Decree, would not have done so; actual investment of capital for development of Community-Based Settings used by Class Members), (iv) adding Housing Assistance, and then (v) subtracting the Federal Medicaid match. For example, a total annual payment of$14,000 to community providers and medical care providers, plus $1,000 for the amortized portion of Transition Costs or other one-time costs eligible for federal match,
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 9 of 61 PageID #:1266
plus $1,000 as the amortized portion of State costs not eligible for federal match (e.g., administrative and collateral costs), plus Housing Assistance of $8,400 equals $24,400, minus a Medicaid match of$7,500 equals the State's net annual cost of$16,900 and a net annual savings of $2,320.
c) The Parties shall aggregate the cost differential for all Class Members transitioned in the first 24 months following the finalization of the Implementation Plan; provided, however, that the Parties may agree to also use the data from the six months following the first 24 months and any other information relevant to projecting future costs. 10. "Court" means the United States District Court for the Northern District of Illinois, Eastern Division. 11. "Decree" means this Consent Decree. 12. "Defendants" means the current or any future Governor of the State of Illinois, Secretary of the Illinois Department of Human Services, Director of the Illinois Department of Public Health, Director of the Illinois Department on Aging, and Director of the Illinois Department of Healthcare and Family Services including any head of any successor to the departments listed herein. 13. "Evaluation" means an assessment for Class Members, provided by a Qualified Professional, who is appropriate for the respective disability population, to determine a Class Member's level of need and/or eligibility for services and to determine the services appropriate for that Class
-6 -

Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 10 of 61 PageID #:1267
Member, including the services needed to reside in a Community-Based Setting. 14. "Home and Community-Based Services Waiver (HCBS Waiver)" means a federally approved waiver program under which services are offered as an alternative to institutional care for individuals who meet the requirements ofthe HCBS Waiver. 15. "Home Accessibility Adaptation Costs" mean, as determined in the Service Plan development process, the one-time payment of allowable expenses necessary to make a Community-Based Setting accessible for a Class Member; provided, however, that Home Accessibility Adaptation Costs shall not exceed $5,000 per Class Member. 16. "Housing Assistance" means, as determined in the Service Plan development process, the financial assistance for housing that is necessary to make it possible, if provided together with the Community-Based Services and any Transition Costs and Home Accessibility Adaptation Costs identified in the Service Plan, for the Class Member to transition from a Nursing Facility to a Community-Based Setting, subject to the following limitations: (1) that the Class Member has been a resident of a Nursing Facility for at least 6 consecutive months, including any temporary stay in a hospital or other long-term care facility, as of the date of the Class Member's first Evaluation; (2) that the Class Member will apply as soon as practicable for a federal Section 8 housing voucher or other similar housing rental subsidy; (3) that, once an adequate housing voucher or subsidy is received by the Class Member, the Housing
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 11 of 61 PageID #:1268

Assistance will terminate; (4) the total Housing Assistance provided to

each eligible Class Member shall be calculated as follows: the monetary

difference between the actual rent paid by the Class Member or the Fair

Market Rent (FMR), as defined by the United States Department of

Housing and Urban Development and found at www.huduser.

org/portal/datasets/finr/fmrs/FY2011code/2011summary.odn, as amended,

whichever is lower, less any government-funded housing subsidy, and 30

I

percent of the Class Member's Income;3 and (5) consistent with

Defendants' obligations in Sections V and VI to provide services, support

resources and the benchmarks set forth in Section VI(C), the total Housing

Assistance provided to eligible Class Members shall be no more than

$1,330,000 in the first year following the finalization of the

Implementation Plan, no more than $4,680,000 in the second year

following the finalization of the Implementation Plan (including for

transitions occurring in the first year), no more than $3,990,000 in months

25-30 following the finalization of the Implementation Plan (including for

transitions occurring in the first and second years), with aggregate

Housing Assistance maximums determined thereafter as part of the

3

For example, if a Class Member is paying actual reJ!t of $900.00 per month, the FMR is

$800.00 per month, the Class Member has Income of$600.00 per month and is receiving

another rent subsidy of $100.00 per month, then the Housing Assistance would be

$520.00 per month, calculated as $800-$100 = $700-$180 [.3 x $600] = $520. As

another example, if a Class Member with $600.00 per month Income and no other rent

subsidy is living with a relative and paying half of the actual rent of$1,100.00 per month,

and the FMR is $1,100.00, then Housing Assistance would be $330.00 per month,

calculated as $550-$180 [.3 x $600] = $330.

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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 12 of 61 PageID #:1269
development of the Cost Neutral Plan, as described in Section VI.C.4 and 5 herein. 17. "Illinois Medicaid State Plan" or "State Plan" means the plan that was submitted by the State of Illinois to the United States Department of Health and Human Services, Centers for Medicare and Medicaid Services, in accordance with Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396v, in effect as ofthe date of the Approval ofthe Decree, including any subsequent amendments thereto. 18. "Income" shall mean all monies classified as Adjusted Gross Income in the Internal Revenue Code, including, but not limited to, earnings, private or public pensions, self employment social security benefits, SSI benefits, dividends, interest, capital gains, rents and federal and earned income credits. 19. "Implementation Plan" means the plan set forth below in Section VIII. 20. "Mental Illness" means serious mental illness as defined in 77 Illinois Administrative Code, Chapter I, Section 300.4000. 21. "Monitor" means the person or entity appointed by the Court pursuant to Section IX hereof to perform the functions more fully described therein. 22. "Nursing Facility" means a long term care facility licensed by the Illinois Department of Public Health under 77 Ill. Admin. Code 300, where the license authorizes the facility to provide, for one or more beds, skilled nursing level of care to its residents, where "skilled nursing level of care" means the provision of skilled nursing care, continuous skilled nursing observations, restorative nursing, and other services under professional
-9-

Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 13 of 61 PageID #:1270
direction with frequent medical supervision; provided, however, that a Nursing Facility does not include a privately owned long-term care facility classified as an Institution for Mental Diseases (IMD) for purposes of eligibility for Federal Medicaid matching funds. 23. . "Parties" means Plaintiffs and Defendants, collectively. 24. "Permanent Supportive Housing" or "PSH" refers to integrated permanent housing, with tenancy rights, linked with flexible Community-Based Services that are available to consumers when they need them, but are not mandated as a condition of tenancy. For purposes of this Decree, PSH includes scattered-site housing as well as apartments clustered in a single building. 25. "Person-Centered" means a planning process designed to empower Class Members to make plans for their future according to their needs and desires, with the support of their legal guardians, family, friends, or service providers as appropriate. For Class Members with Mental Illness, "Person Centered" means a process based on a model of recovery. 26. "Plaintiffs" means all Class Members. 27. "Pre-Admission Screening and Resident Review (PASRR) Agency" means any entity that provides assessments for Class Members with Mental Illness, and that (i) contracts with the State to perform, in conformance with federal screening requirements, pre-admission screening and resident reviews on persons with Mental Illness who may be placed or currently reside in a Nursing Facility, and (ii) as a condition of its contract with the State, has received sufficient training and/or has
- 10-

Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 14 of 61 PageID #:1271
sufficient experience providing services to demonstrate a comprehensive understanding of the available Community-Based Settings, including Permanent Supportive Housing, and Community-Based Services, Transition Costs and Housing Assistance. 28. "Pre-Admission Screening" means an assessment for Class Members, conducted by a Qualified Professional, with the input of the Class Member, to determine a Class Member's need for long-term care and the appropriate level of care, and a Class Member's desire to receive Community-Based Services or placement in a Community-Based Setting. 29. "Private Residence" means a house, apartment, condominium, townhouse or any housing structure that may or may not be shared with family or friends. A Private Residence may not be an IMD, a Nursing Facility, a group home or any supervised or supported setting. 30. "Qualified Professional" means a person, including an employee of a PASRR Agency, who (a) is not employed by or an agent of a Nursing Facility, a hospital or other long-term care facility that also provides housing; (b) may be employed by a governmental body so long as the collective group of Qualified Professionals includes a substantial number of persons not employed by any Defendant agency; and (c) is certified or approved by the Defendants as appropriately licensed, skilled, trained and qualified to conduct Evaluations. 31. "Service Plan" means a Person-Centered plan with the goal of moving a Class Member to a Community-Based Setting, strategies to be employed to achieve that goal and a description of all Community-Based Services,
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 15 of 61 PageID #:1272
Transition Costs, Home Accessibility Adaptation Costs and/or Housing Assistance necessary to support that goal. 32. "State" means the State of Illinois. 33. "Supportive Living Facility" or "SLF" means a residential setting meeting the requirements of Subpart B, 89 Ill. Admin. Code 146.205. 34. "Transition Costs" mean the one-time payment of allowable expenses necessary to accomplish the transition of a Class Member from a Nursing Facility to a Community-Based Setting, limited to those expenses that are necessary to enable a person to establish a basic household that do not constitute room and board, including: (a) security deposits (including first month rent payments if so included by a landlord in advance "deposits"), move-in application or other fees that are required to obtain a lease on an apartment or home; (b) essential household furnishings and moving expenses required to occupy and use a community domicile, including furniture, window coverings, food preparation items, and bed/bath linens; (c) set-up fees or deposits for utility or services access, including telephone, electricity, heating and water; (d) services necessary for the person's health and safety, such as pest eradication and one-time cleaning prior to occupancy; and (e) first month's food needs. Expenditures listed herein as allowable Transition Costs will be approved only to the extent that they are reasonable and necessary as determined through the Service Plan development process, and are clearly identified in the Service Plan, and only to the extent that the Class Member cannot pay for such Transition Costs or obtain the allowable item or services identified in this
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 16 of 61 PageID #:1273
subparagraph from other sources. Transition Costs do not include monthly rental or mortgage expense; food (after the first month); regular utility charges; previously incurred debts and arrearages; and/or household appliances or items that are intended for purely diversional/recreational purposes. Transition Costs shall not exceed $4,000 for the lifetime of any Class Member. V. THE DISABILITY SERVICES SYSTEM Development of Community Capa~ity. Defendants shall develop and implement necessary and sufficient measures, services, supports and other resources, such as having service providers available for and able to locate affordable housing, to arrange for transition into Community-Based Settings, and to assist Class Members with accessing Community-Based Services, consistent with the choices of Class Members, to ensure that the Defendants will meet their obligations under the Decree and the Implementation Plan. Nothing in this Consent Decree shall reduce, impair or infringe on any rights or entitlements of any Class Members in any State program or in any Medicaid program. VI. EVALUATIONS AND SERVICE PLANS A. Evaluations. 1. Each Class Member is eligible for an Evaluation to determine what Community-Based Services are required for the Class Member to transition to a Community-Based Setting. Within 180 days following the finalization of the Implementation Plan, at least 500 Class Members then residing in a Nursing Facility shall receive an Evaluation by a Qualified Professional.
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 17 of 61 PageID #:1274
2. Within eighteen months following the finalization of the Implementation Plan, a total of at least 2,000 Class Members then residing in a Nursing Facility shall have received an Evaluation by a Qualified Professional.
3. Subject to approval of and consistent with the Cost Neutral Plan, every Class Member then residing in a Nursing Facility shall receive an Evaluation by a Qualified Professional within the time period determined as part of the development of the Cost Neutral Plan.
4. The Qualified Professionals shall inform each Class Member during the Evaluations about the existence, nature and availability of CommunityBased Settings and shall describe the Community-Based Services, Transition Costs and/or Housing Assistance that may be available to Class Members in those settings.
5. Evaluations shall be done in a timely manner so as not to delay, where applicable, the development of a Class Member's Service Plan.
6. Any Class Member who disputes a decision regarding eligibility for, or approval of, Community-Based Services, Transition Costs and/or Housing Assistance or placement in a Community-Based Setting shall, pursuant to governing law, have the right to appeal through administrative review of such decisions through Defendants' existing Fair Hearings process (as set forth in 89 Ill.Adm.Code Parts 102 and 104) or as otherwise provided by law. Class Members also may avail themselves of any informal review or appeal process that currently exists.
7. Subject to approval of and consistent with the Cost Neutral Plan, beginning four years following the Approval Date, the Evaluations for
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 18 of 61 PageID #:1275
every Class Member then residing in a Nursing Facility shall be conducted at least annually, except for Class Members who decline to receive Evaluations and for Class Members who have been determined by a medical doctor to have a condition such as severe dementia or other clinically significant and progressive cognitive disorders and are unlikely to improve. For those Class Members who have been offered a Community-Based Setting but have opposed moving from a Nursing Facility to a Community-Based Setting, the reasons for the Class Member's opposition shall be fully explored and appropriately addressed as part ofthe Class Member's annual Evaluation and as described in Section VII herein. Any Class Member who has received an Evaluation but has declined to move to a Community-Based Setting may thereafter request to be re-Evaluated for transition to a Community-Based Setting. Any such re-Evaluation must be conducted within 120 days of the request. 8. With respect to Evaluations and re-Evaluations described in this Section VI.A, any Class Member has the right to decline to take part in an Evaluation or re-Evaluation. A Class Member declining an Evaluation or re-Evaluation shall have the right to receive an Evaluation or reEvaluation within 120 days of making a new request. B. Service Plans. 1. Pursuant to the Evaluations and with a Class Member's input, Defendants shall develop, within 90 days after each Evaluation, Service Plans specific to each Class Member. For those Class Members whose Service Plans include transitioning to a Community-Based Setting, each Service Plan
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 19 of 61 PageID #:1276
shall set forth with specificity the Community-Based Services, Transition Costs, Home Accessibility Adaptation Costs and/or Housing Assistance the Class Member needs in a Community-Based Setting, including a projected timetable to complete the transition. Each Service Plan shall be updated at least every 180 days to reflect any changes in needs and preferences of the Class Member, including his or her desire to move to a Community-Based Setting after declining to do so, and shall incorporate, where appropriate, services to assist in acquisition of basic activities of daily living skills and illness self-management. 2. If there has been a determination that a Class Member will be transitioning to PSH, the PSH options offered must include one or more appropriate buildings in which fewer than 25 percent of the building's units are occupied by persons known by the Defendants to have disabilities. 3. If there is a determination that a Class Member will not be transitioning to PSH or Private Residence (except for those Class Members who have declined transitions), the Service Plan shall specify what services the Class Member needs that could not be provided in PSH or a Private Residence and shall describe the Community-Based Services the Class Member needs to live in another Community-Based Setting that is the most integrated setting appropriate to that Class Member's needs and preferences or shall specify what services the Class Member needs that cannot be provided in any Community-Based Setting.
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4. The Service Plan shall be developed by a Qualified Professional in conjunction with the Class Member and/or his or her legal representative, if any.
5. Each Service Plan shall focus on the Class Member's personal vision, preferences, strengths and needs in home, community and work environments.
C. Benchmarks for Transitions for Individuals Residing in Nursing Facilities. 1. By the end of the first year following the finalization of the Implementation Plan, Defendants will have moved to a Community-Based Setting 300 Class Members who desire to live in Community-Based Settings and who have received an Evaluation and a Service Plan. 2. By the end of the second year following the finalization of the Implementation Plan, Defendants will have moved to a Community-Based Setting 800 Class Members who desire to live in Community-Based Settings and who have received an Evaluation and a Service Plan. 3. By the end of the thirtieth month following the finalization of the Implementation Plan, Defendants will have moved to a Community-Based Setting 1,100 Class Members who desire to live in Community-Based Settings and who have received an Evaluation and a Service Plan. 4. Not later than thirty months after the finalization of the Implementation Plan, the Defendants, Monitor and Counsel for Class Plaintiffs shall agree on a Cost Neutral Plan to move to Community-Based Settings at a reasonable pace all Class Members who desire to live in CommunityBased Settings. However, if the Defendants, Monitor and Counsel for
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 21 of 61 PageID #:1278
Class Plaintiffs jointly determine, based on an analysis of the data and other information regarding the cost of moving the first 800 to 1,100 Class Members, that no remaining Class Member can be moved in a cost neutral manner, then the Parties will file a joint motion to terminate the Decree. If the Parties cannot agree that a Cost Neutral Plan is feasible, then either Party may seek appropriate guidance and relief from the Court. 5. If the Defendants, Monitor and Counsel for Class Plaintiffs are unable, for any reason, to agree on a Cost-Neutral Plan as described above at the 30th month after finalization of the Implementation Plan, Defendants and Counsel for Class Plaintiffs shall each file a proposed Cost Neutral Plan with the Court not later than 31 months after finalization of the Implementation Plan. The Court will set appropriate schedules and proceedings to determine the Cost Neutral Plan to be effected. 6. Subject to the approval of and consistent with the Cost Neutral Plan described above, by the end of the third year following the finalization of the hnplementation Plan, Defendants shall have created a Community Transition Schedule that lists all Class Members living in Nursing Facilities as of that date who do not oppose moving to a CommunityBased Setting. Defendants shall ensure that Class Members listed on the Community Transition Schedule will move to appropriate CommunityBased Settings at a reasonable pace, with selection prioritized by the Class Member's urgency of need for Community-Based Services or placement in a Community-Based Setting, the length of time that has passed since the Class Member was placed on the Community Transition Schedule,
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geographical considerations and other appropriate factors. The Defendants shall identify or develop sufficient numbers of appropriate Community-Based Settings so that Class Members placed on the Community Transition Schedule will be able to move to appropriate Community-Based Settings as quickly as possible consistent with the Cost Neutral Plan. D. Community-Based Settings and Community-Based Services. 1. Defendants shall ensure that Class Members who move to a CommunityBased Setting have access to all appropriate Community-Based Services, Transition Costs, Home Accessibility Adaptation Costs and/or Housing Assistance specified in their Service Plans, and shall take appropriate measures to keep their housing available in the event that they are placed in a hospital, Nursing Facility or other treatment facility for up to 60 consecutive days. 2. Defendants shall take all necessary and reasonable measures to protect Class Members from being pressured not to consider appropriate alternatives to Nursing Facilities or from being subjected to retaliation in any form by Nursing Facilities for seeking alternatives to Nursing Facilities. 3. For Class Members with Mental Illness, PSH or the Private Residence chosen by the Class Member shall be considered the most integrated Community-Based Setting appropriate except that for any Class Members with Mental Illness (i) who have been determined by a physician not affiliated with a Nursing Facility to have a condition such as severe
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dementia or other severe cognitive impairments requiring such a high level of staffing to assist with activities of daily living or self-care management that they cannot effectively be served in PSH or a Private Residence, (ii) who have medical needs requiring such a high level of skilled nursing care that they cannot effectively be served in PSH or a Private Residence, or (iii) who present an imminent danger to themselves or others, the Qualified Professional will determine, through the Evaluation process, the most integrated setting appropriate. Those Class Members not transitioning from Nursing Facilities into PSH or a Private Residence shall have periodic re-Evaluations with treatment objectives to prepare them for subsequent transition to the most integrated setting appropriate, including PSH or a Private Residence, except for Class Members who have chosen other living arrangements or have been determined by a physician not affiliated with a Nursing Facility to have a condition such as severe dementia or other clinically significant and progressive cognitive disorders and are unlikely to improve. VII. OUTREACH Defendants shall ensure that Class Members receive complete and accurate information regarding their rights to live in Community-Based Settings and/or to receive Community-Based Services, Transition Costs, Home Accessibility Adaptation Costs and/or Housing Assistance, and the available options and opportunities for doing so. The Implementation Plan shall describe the method by which such information will be disseminated, the process by which Class Members may request services, and the manner in which Defendants will maintain current records of these requests. Defendants shall also ensure that the Qualified Professionals conducting the
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 24 of 61 PageID #:1281
Evaluations provide outreach with appropriate frequency to Class Members who express concerns about leaving the Nursing Facilities. The Implementation Plan shall describe methods for providing outreach to Class Members. All costs for outreach shall be borne by Defendants. VIII. IMPLEMENTATION
A. Overview and Contents of the Implementation Plan. Defendants, with the input of the Monitor and counsel for Plaintiffs, shall create and implement an Implementation Plan to accomplish the obligations and objectives set forth in the Decree. The Implementation Plan must, at a minimum: 1. Establish specific tasks, timetables, goals, programs, plans, strategies and protocols to assure that Defendants fulfill all ofthe requirements of the Decree; 2. Describe the hiring, training and supervision of the personnel necessary to implement the Decree; 3. Describe the activities required to support the development and availability of Community-Based Services, Transition Costs, Home Accessibility Adaptation Costs and/or Housing Assistance and Community-Based Settings, including inter-agency agreements, requests for proposals, mechanisms for Housing Assistance, and other actions necessary to implement the Decree; 4. Identify, based on information known at the time the Implementation Plan is finalized and updated on a regular basis, any services or supports anticipated or required in Service Plans developed pursuant to the Decree that are not currently available in the appropriate quantity, quality or
- 21 -

Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 25 of 61 PageID #:1282
geographic location, and might be required to meet the obligations of the Decree; 5. Identify any necessary changes to regulations that govern Nursing Facilities in order to strengthen and clarify requirements for services to Nursing Facility residents and to provide for effective oversight and enforcement of all applicable regulations and laws; and 6. Describe the methods by which Defendants shall ensure compliance with their obligations of this Decree. B. Within 180 days of Approval of the Decree, Defendants shall provide the Monitor and Counsel for Class Plaintiffs with a draft Implementation Plan. The Monitor and Counsel for Class Plaintiffs shall participate in developing and finalizing the Implementation Plan, which shall be finalized not later than nine months following the Approval Date. If, after negotiation and comment, the Monitor or Counsel for Class Plaintiffs disagrees with the Defendants' proposed Implementation Plan, the Court shall resolve all disputes and finalize the Implementation Plan. C. The Implementation Plan shall be updated and amended at least annually. The Monitor and Counsel for Class Plaintiffs shall review and comment upon any proposed updates or amendments at least 60 days before the effective date of any updates or amendments. In the event the Monitor or Counsel for Class Plaintiffs disagree with the Defendants' proposed updates or amendments, the Monitor or Counsel for Class Plaintiffs shall state all objections in writing at least 30 days before the effective date of any updates or amendments. In the event that Defendants, the Monitor and Counsel for Class Plaintiffs do not agree on updates
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 26 of 61 PageID #:1283
and amendments, the Court shall resolve any and all disputes before any updates or amendments become effective. D. The Implementation Plan, and all amendments or updates thereto, shall be filed with the Court and shall be incorporated into and become enforceable as part of the Decree. E. In the event that any Nursing Facility seeks to discharge any Class Member before a Community-Based Setting is available, including, but not limited to, circumstances in which a Nursing Facility owner decides to close the Nursing Facility, Defendants shall take appropriate and necessary actions to ensure that such Class Members are not left without appropriate housing options based on their preferences, strengths and needs. IX. MONITORING AND COMPLIANCE A. Appointment of a Monitor. The Court will appoint an independent and impartial Monitor who is knowledgeable concerning the management and oversight of programs, including waiver programs, that serve Individuals with Mental Illness and Physical Disabilities of all ages. The Parties shall attempt to agree on the selection of a Monitor to propose to the Court. If the Parties are unable to reach agreement, each party will nominate at least one person to serve as Monitor, and the Court will select the Monitor. Within 21 days of Approval of the Decree, the Parties shall submit their joint recommendation or separate nominations for a Monitor to the Court. In the event the Monitor resigns or otherwise becomes unavailable, the process described above will be used to select a replacement.
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 27 of 61 PageID #:1284
B. Duties and Reporting. The Monitor's duties include evaluating Defendants' compliance with the Decree, identifying actual and potential areas of noncompliance with the Decree, mediating disputes between the Parties, and bringing issues and recommendations for their resolution to the Court. The Monitor will file a written report at least annually with the Court and the Parties regarding compliance with the Decree. Such reports shall include the information necessary, in the Monitor's professional judgment, for the Court and Class Counsel to evaluate Defendants' compliance or non-compliance with the terms of the Decree. Reports of the Monitor shall be filed with the Court and served on all Parties. The Monitor may redact any portions of the Report necessary to make certain confidential matters and information are not disclosed.
C. Review and Evaluation of Data and Information. The Monitor shall review and evaluate Defendants' compliance with the terms of the Decree. Not less than every six months, starting no later than three months after finalization of the Implementation Plan, Defendants shall provide the Monitor and Plaintiffs with a report containing data and information sufficient to evaluate Defendants' compliance with the Decree and Defendants' progress towards achieving compliance, with the Parties and Monitor agreeing in advance ofthe first report on the data and information that must be included in such report. Defendants will not refuse any request by the Monitor for documents or other information that are reasonably related to the Monitor's review and evaluation of Defendants' compliance with the Decree, and Defendants will, upon reasonable notice, permit confidential interviews of Defendants' staff or consultants, except their attorneys. The Monitor will have access to all Class Members and their records and files, as
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 28 of 61 PageID #:1285
well as to those service providers, facilities, buildings and premises that serve, or are otherwise pertinent to, Class Members, where such access is reasonably related to the Monitor's review and evaluation of Defendants' compliance with the Decree. The Defendants shall comply with Class Counsel's requests for information that are reasonably related to Defendants' compliance with the Decree, including without limitation requests for records and other relevant documents pertinent to implementation of the Decree or to Class Members. Class Counsel also shall be permitted to review the information provided to the Monitor. All information provided to the Monitor and/or Class Counsel pursuant to the Decree shall be provided subject to the Protective Order and any applicable HIPAA requirements. D. Compliance. In the event the Monitor finds Defendants not in compliance with the Decree, the Monitor shall promptly meet and confer with the Parties in an effort to agree on steps necessary to achieve compliance. In the event that Class Counsel believe that Defendants are not complying with the terms of the Decree, Class Counsel shall notify the Monitor and Defendants of Defendants' potential non-compliance. The Monitor then shall review Plaintiffs' claims of actual or potential non-compliance and, as the Mo'nitor deems appropriate in his or her professional judgment, meet and confer with Defendants and Plaintiffs in an effort to agree on steps necessary to achieve compliance with the Decree. If the Monitor and Parties agree, such steps shall be memorialized in writing and incorporated into, and become enforceable as part of, the Decree. In the event that the Monitor is unable to reach agreement with Defendants and Plaintiffs, the Monitor or either Party may seek appropriate relief from the Court. In the event
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 29 of 61 PageID #:1286
that Plaintiffs believe that Defendants are not in compliance with the Decree and that the Monitor has not requested appropriate relief from the Court, Plaintiffs may seek relief from the Court. The Monitor shall not communicate with the Court without advance notice to the Parties. E. Compensation of the Monitor. The Monitor may hire staff as necessary to fulfill his or her duties under the Decree. Defendants shall compensate the Monitor and his or her staff at their usual and customary rates, so long as the rates are reasonable. Defendants shall reimburse all reasonable expenses of the Monitor and the Monitor's staff, consistent with the guidelines set forth in the "Governor's Travel Control Board Travel Guide for State Employees.'' After negotiation, comment and a good faith attempt to resolve all differences, Defendants may seek relief from the Court if Defendants believe that any ofthe Monitor's charges is inappropriate or unreasonable. X. CLASS REPRESENTATIVES A. Within 60 days of Approval of the Decree, Defendants shall offer each of the Class Representatives the opportunity to receive appropriate services in the most integrated setting appropriate to his or her needs. Provision of services to the Class Representatives pursuant to this paragraph shall not be used to determine any other individual's eligibility for services under the terms of the Decree. XI. ATTORNEYS' FEES AND COSTS A. In full settlement of all attorneys' fees and costs incurred in connection with the litigation, Defendants shall pay $1,200,000 to Class Counsel in three equal payments. Defendants shall make the first payment in State Fiscal Year 2012 (which begins July 1, 2011), the second payment in State Fiscal Year 2013 (which
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 30 of 61 PageID #:1287
begins July 1, 2012), and the third payment in State Fiscal Year 2014 (which begins July 1, 2013). All of the payments shall be distributed to Class Counsel in the manner set forth in written instructions provided by Class Counsel. Furthermore, such amounts shall be set forth in one or more Judgment Orders to be entered by the Court within 14 days after Approval of the Decree. Defendants shall complete and submit all paperwork necessary for the first payment, plus applicable statutory post-judgment interest, within (a) five business days after expiration of the time to appeal the Decree without the filing of a Notice of Appeal, or after the issuance of the mandate by the highest reviewing court, whichever is later, or (b) April1, 2012, whichever is later. Defendants shall complete and submit all paperwork necessary for the second payment no later than July 1, 2012 and the paperwork necessary for the third payment, no later than July 1, 2013.
XII. MISCELLANEOUS PROVISIONS A. Approval of the Decree. Approval of this Decree shall be deemed to occur on the date the Court enters the Decree. B. Cost of Notices. The cost of all notices hereunder or otherwise ordered by the Court shall be borne by Defendants. C. Signatories. Each undersigned representative of a Defendant to this litigation and the Attorney General for the State of Illinois certifies that he or she is authorized to enter into the terms and conditions of the Decree and to execute and bind legally such Defendant to this document. Each undersigned representative of Plaintiffs certifies that he or she is authorized to enter into the terms and
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 31 of 61 PageID #:1288

conditions of the Decree and to execute and bind legally the Plaintiffs to this document. D. Unless otherwise ordered by the Court, this Decree shall terminate at the earliest of the following: (1) as specified in the Parties' joint motion to terminate the Decree, as provided in Section VI.C.4; or (2) as specified in the Cost Neutral Plan . approved by the Court.

SO ORDERED THIS

DAYOF _ _ _ _ _,2011.

United States District Judge

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EACH UNDERSIGNED PARTY enters into this Consent Decree in the matter of Colbert v. Quinn, Case No. 07-4737, pending in the United States District Court for the Northern District of Illinois, Eastern Division. FOR THE CLASS PLAINTIFFS:
Date: tJ~3 ~st ~ ~) ~0 {)
AS ATTORNEYS FOR CLASS PLAINTIFFS:
Date: fl. "'-j ~<;t d..~ )d..o \(.
FOR DEFENDANT, GOVERNOR OF ILLINOIS: Date:- - - - - - - - - - - - - - - - - - - - - - - FOR DEFENDANT, SECRETARY OF ILLINOIS DEPARTMENT OF HUMAN SERVICES: Date:___________________________________________________ FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT ON AGING: Date: - - - - - - - - - - - - - - - - - - - - - - - FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES: Date:________________________ --------------------------FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF DEPARTMENT OF PUBLIC HEALTH: Date:- - - - - - - - - - - - - - - - - - - - - - - AS ATTORNEY FOR DEFENDANTS: Date: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 33 of 61 PageID #:1290

EACH UNDERSIGNED PARTY enters into this Consent Decree in the matter of Colbert v. Quinn, Case No. 07-4737, pending in the United States District Court for the Northern
District of illinois, Eastern Division.

FOR THE CLASS PLAINTIFFS:

Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - -

AS ATTORNEYS FOR CLASS PLAINTIFFS:

Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - -

FOR DEFENDANT, GOVERNOR OF ILLINOIS:

Date:

~ Z.~ '2-o 1/ I

FOR DEFENDANT, SECRETARY OF ll.LINOIS DEPARTMENT OF HUMAN SERVICES:

Date:_ __;___ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - -

FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT ON AGING:

- Date: -------------------
FOR DEFENDANT, DIRECTOR OF ll.LINOIS DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES:

Date:- - - - - - - - - - - - - - - - -
FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF DEPARTMENT OF PUBLIC HEALTH:

Date:_ _ _ _ _ _ _ _ _ _ _ _ _ _ - - - - ' - - - - - - - - - - - - - -

AS ATTORNEY FOR DEFENDANTS:

Date:_ _ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - - - -

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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 34 of 61 PageID #:1291

EACH UNDERSIGNED PARTY enters into this Consent Decree in the matter of Colbert v. Quinn; Case No. 07-4737, pending in the United States District Court for the Northern District of Illinois, Eastern Division.

FOR THE CLASS PLAINTIFJ:S:

Date:_ _ _ _ _ _ _ _ _ _ _ _ ~=-------------

. AS ATTORNEYS FOR CLASS PLAINTIFFS:

Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - : - - - - - - - -
'

.

FOR DEFENDANT,..GOVERNOR OF

ILLINOIS:

Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - -

FOR DEFENDANT, SECRETARY OF

ILLINOIS DEPARTMENT OF HUMAN

SERVICES:

.

Date:
/

Lf0:~d,J ~~-~ -----.:8~-1~?-....:...._1/~--

FOR DEFENDANT, DIRECTOROF

ILLINOIS DEPARTMENT ON AGING:

Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - -

FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF. HEALTHCARE AND FAMILY
SERVICES:

Date=-,----------'------ --------------
FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF DEPARTMENT OF PUBLIC HEALTH:
Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - -

AS ATTORNEY FOR DEFENDANTS: Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - -

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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 35 of 61 PageID #:1292

EACH UNDERSIGNED PARTY enters into this Consent Decree in the matter of Colbert v. Quinn, Case No. 07-4737, pending in the United States District Court for the Northern District oflllinois, Eastern Division.
FOR THE CLASS PLAINTIFFS:
Date:-----------------------
AS ATTORNEYS FOR CLASS PLAJNTJFFS:
Date:-----------------------
FOR DEFENDANT, GOVERNOR OF ILLINOIS:
Date:_______________________ --------------------------
FOR DEFENDANT, SECRETARY OF ILLINOIS DEPARTMENT OF HUMAN SERVICES: Dme:_________________________________________________

FOR DEFENDANT, DIRECTOR OF

ILLINOIS DEPARTMENT ON AGING:

~ Date:

:Z...?-; 'J.£)11

~~

FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES:

Date:_______________________ --------------------------

FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF DEPARTMENT OF PUBLIC HEALTH:

Date:._________________ --------------------------

AS ATTORNEY FOR DEFENDANTS:

Date:._______________________ --------------------------

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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 36 of 61 PageID #:1293
EACH UNDERSIGNED PARTY enters into this Consent Decree in the matter of Colbert v. Quinn, Case No. 07-4737, pending in the United States District Court for the Northern District of Dlinois, Eastern Division. FOR THE CLASS PLAINTIFFS: Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - AS ATIORNEYS FOR CLASS PLAINTIFFS: Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - FOR DEFENDANT, GOVERNOR OF ll..LINOIS: Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - FOR DEFENDANT, SECRETARY OF ll..LINOIS DEPARTMENT OF HUMAN SERVICES: Date:._ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - FOR DEFENDANT, DIRECTOR OF ll..LINOIS DEPARTMENT ON AGING: Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - FOR DEFENDANT, DIRECTOR OF ll..LINOIS DEPARTMENT OF HEALTHCARE AND FAMILY
SERVICES: Date: August 24,2011 FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF DEPARTMENT OF PUBLIC HEALTH: Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - AS ATIORNEY FOR DEFENDANTS: Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - -
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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 37 of 61 PageID #:1294

EACH UNDERSIGNED PARTY enters into this Consent Decree in the matter of Colbert v. Quinn, Case No. 07-4737, pending in the United States District Court for the Northern District of Illinois,- Eastern Division.

FOR THE CLASS PLAINTIFFS:

Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - -

AS ATTORNEYS FOR CLASS PLAINTIFFS:

Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - -

FOR DEFENDANT, GOVERNOR OF ILLINOIS:

Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - -

FOR DEFENDANT, SECRETARY OF . ILLINOIS DEPARTMENT OF HUMAN SERVICES:

Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - -

FOR DEFENDANT, DIRECTOR OF · ILLINOIS DEPARTMENT ON AGING:

Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - -

FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES:

Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - -

FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF
a DEPAR~OFPUBL!CHEALTH:
bl ~--r:}. Date: (J.J.J

~ .&toAtf/Jtl

'

.

AS ATTORNEY FOR DEFENDANTS:

Date:._ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - -

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Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 38 of 61 PageID #:1295
EACH UNDERSIGNED PARTY enters into this Consent Decree in the matter of Colbert v. Quinn, Case No. 07-4737, pending in the United States District Court for the Northern District of Illinois, Eastern Division. FOR THE CLASS PLAINTIFFS:
Date:------------------------
AS ATTORNEYS FOR CLASS PLAINTIFFS: Date:______________________ --------------------------FOR DEFENDANT, GOVERNOR OF ILLINOIS: Date:________________________ --------------------------FOR DEFENDANT, SECRETARY OF ILLINOIS DEPARTMENT OF HUMAN SERVICES:
Date:------------------------
FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT ON AGING:
Date:------------------------
FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES:
Date:- - - - - - - - - - - - - - - - - - - - - -
FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF DEPARTMENT OF PUBLIC HEALTH: Date:,______________________ --------------------------AS ATTORNEY FOR DEFENDANTS:
Date: j1 ~u~t 2-b/ L-ol)
I
- 28.

Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 39 of 61 PageID #:1296
EXHIBIT B

Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 40 of 61 PageID #:1297

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LENIL COLBERT, et al., Plaintiffs, v.
PAT QUINN, et al., Defendants.

)

)

)

)

No. 07 C 4737

)

)

Judge Joan Humphrey Lefkow

)

Magistrate Judge Maria Valdez

)

)

)

NOTICE PLAN

In furtherance oftheir agreement to seek this Court's approval ofthe Parties' proposed Consent Decree, Plaintiffs Lenil Colbert, Kenya Lyle and Ernest Reeves, on behalf of themselves and all others similarly situated (Plaintiffs), and Defendants Pat Quinn, Michelle R.B. Saddler, Julie Ramos, Charles D. Johnson,1 and Damon T. Arnold, in their official capacities (collectively, "the Parties"), propose that the notices more fully described below be approved by the Court as fully comporting with the requirements of Federal Rule 23(e) and due process:
1. Defendants will cause the notice set forth in Exhibit B-1 to be published in the following newspapers: Chicago Sun-Times, Chicago Defender, Daily Herald, Southtown Star, and Pioneer Press. These publications have been identified due to their broad circulation to readers throughout Cook County. Based on publicly available information, those publications have a combined circulation of close to one million readers. Publication will occur on a single

1 Since this lawsuit was filed, Charles D. Johnson has retired and Michael Gelder has been named the Acting Director of the Department on Aging.

Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 41 of 61 PageID #:1298

business day within fifteen (15) business days from the date ofpreliminary approval of the

Consent Decree.

2. Defendants will post notice in the form set forth in Exhibit B-2 on the following

websites within five (5) business days from the date ofpreliminary approval ofthe Consent

Decree and maintain that posting through and including the date of the fairness hearing:

Division ofMental Health ofthe Illinois Department ofHuman Services Division ofRehabilitation Services of the Illinois Department ofHuman Services

http://www .dhs.state.il. us/page.aspx?ite m=29728
http://www .dhs.state.il. us/page.aspx?ite m=29764

The DHS Division of Mental Health is responsible for providing comprehensive services

to individuals with mental illness in Illinois, including various community-based settings. The

DHS Division of Rehabilitation Services is responsible for assisting people with physical

disabilities in achieving full community participation through employment, education, and

independent living opportunities.

3. Plaintiffs' counsel will post notice in the form attached as Exhibit B-2 to the

Motion on the following websites within five (5) business days from the date of preliminary

approval of the Consent Decree and maintain that posting through and including the date ofthe

fairness hearing:

Access Living Equip for Equality ACLU oflllinois

www .accessliving.org www.equipforequality.org www.aclu-il.org

Access Living is the not-for-profit center for independent living that serves the City of Chicago. Equip for Equality is the not-for-profit corporation appointed by the State of Illinois to

2

Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 42 of 61 PageID #:1299

implement the federally-mandated Protection and Advocacy System in Illinois for persons with disabilities. ACLU is a non-profit, non-partisan organization dedicated to protecting civil rights and liberties guaranteed by the U.S. Constitution. Equip for Equality, Access Living and ACLU work directly with individuals with disabilities.
4. Within fifteen (15) business days from the date of preliminary approval ofthe Consent Decree, Defendants will cause notice to be sent via first class mail in the form set forth in Exhibit B-2 to all preadmission screening and resident review ("PASRR") agencies located in Cook County, Illinois. PASRR agencies are responsible, by contract with the State of Illinois, for determining whether individuals with mental illness are eligible for placement institutional settings.
5. Within fifteen (15) business days from the date of preliminary approval ofthe Consent Decree, Defendants will cause notice to be sent via first class mail in the form set forth in Exhibit B-2 to the following disability rights-related organizations located in Illinois:

AARP Illinois Abraham Low Self-Help Systems Anixter Center Arthritis Foundation-Illinois Brain Injury Association of Illinois Breaking Stigma Inc. Center for Disability and Elder Law CARPLS Catholic Archdiocese of Chicago Commission on Mental Illness CAUSE

Chicago Bar Association - Mental Health and Disability Law Committee
Chicago Coalition for the Homeless - Law Project
Chicago-Kent College of Law- Health & Disability Law Clinic
Chicago Lighthouse for the Blind
Community Behavioral Healthcare Association of Illinois
Community Counseling Centers of Chicago
Community Mental Health Board of Chicago
Community Mental Health Council
3

Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 43 of 61 PageID #:1300

Community Renewal Society Cook County Public Defender
Corporation for Supportive Housing Illinois
Counseling Center of Lakeview
Deborah's Place
DePaul University College of Law- Civil Rights Clinic
Depression and Bipolar Support Alliance
Domestic Violence and Mental Health Policy Initiative
Health and Disability Advocates
Health and Medicine Policy Research Group -Center for Long Term Care Reform
Health Care Council of Illinois
Heartland Alliance - Heartland Health Outreach, Inc.
Human Resources Development Institute
Illinois Association of Community Mental Health Authorities
Illinois Association of Rehabilitation Facilities
Illinois Citizens for Better Care
Illinois Guardianship and Advocacy Commission
Illinois Healthcare Association
Illinois Hospital Association
Illinois Legal Aid Online
Illinois Long-term Care Ombudsman

Illinois Mental Health Planning and Advisory Council
Illinois Network of Centers for Independent Living
Illinois Psychiatric Society
Illinois Psychological Association
Illinois Society for Clinical Social Work
Illinois State Bar Association -Disability Committee, Mental Health Law Committee, Lawyers' Committee for Civil Rights Under Law
Jewish Vocational Services
John Howard Association
John Marshall Law School- Fair Housing Clinic
Lawyers' Committee for Civil Rights under the Law
Loyola University Chicago School of Law Beazley Institute for Health Law & Policy Health Justice Project
Lutheran Social Services of Illinois
Mayor's Office for People with Disabilities (Chicago)
Mental Health America of Illinois
Mental Health Consumer Education Consortium
Metropolitan Chicago Homeless Action Committee
Musculary Dystrophy Association-Chicago
National Alliance on Mental Illness of Greater Chicago

4

Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 44 of 61 PageID #:1301

National Alliance on Mental Illness of Illinois
National Alliance on Mental Illness of South Suburbs ofChicago
National Association of Social WorkersIllinois Chapter
National Federation of the Blind of Illinois
National Mental Health Voter Empowerment Project of Illinois
National Multiple Sclerosis Society-Greater Illinois Chapter
Next Steps
Northern Illinois University College of Law - Elder Law Clinic
Northwestern School of Law- Bluhm Legal Clinic
Obsessive Compulsive Foundation of Chicago
Office of the Cook County Public Guardian

Progress Center
Rehabilitation Institute of Chicago
Sankofa Organization of Illinois, Inc.
Southern Illinois University School Law Civil Practice I Elderly Clinic
Spinal Cord Injury Association of Illinois
Supportive Housing Providers Association of Illinois
Thresholds Psychiatric Rehabilitation Centers
Transitions
Trilogy, Inc.
Trinity Services
United Cerebral Palsy of Greater Chicago
University of Chicago Law School - Mandel Legal Aid Clinic
University of Illinois College of Law Federal Civil Rights

9. Within fifteen (15) business days from the date of preliminary approval ofthe Consent Decree, Defendants will cause notice to be sent via first class mail in the form set forth in Exhibit B-2 to all of the (approximately 186) nursing facilities in Cook County. The notice will be accompanied by a letter from Defendants mandating that the nursing facilities (1) post the notice within forty-eight (48) hours of receipt on bulletin boards, in dining areas and large recreational areas, and maintain such posting through and including the date of the fairness hearing; (2) distribute a copy of the notice to each nursing facility resident and maintain a master

5

Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 45 of 61 PageID #:1302 list of resident signatures verifying receipt of the notice; and (3) take reasonable steps to make the notice available to residents and their family members and/or guardians.
10. All notices sent pursuant to Paragraphs 4- 9, above, shall be sent in envelopes that indicate: "CONTAINS OFFICIAL LEGAL NOTICE."
6

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EXHIBIT B-1

Case: 1:07-cv-04737 Document #: 196-1 Filed: 08/29/11 Page 47 of 61 PageID #:1304

EXIDBIT B-1: FORM OF SUMMARY PUBLICATION NOTICE

LEGAL NOTICE OF PROPOSED CLASS ACTION CONSENT DECREE AND HEARING

If you are a person in Cook County, lllinois, who is 18 years of age or older, Medicaid-eligible and living in a nursing facility, a class action lawsuit may affect your rights.

This Notice is being published by order of the United States District Court for the Northern District of

Illinois to inform you of the proposed settlement of a class action lawsuit (Colbert v. Quinn, Case No. 07

C 4737) set forth in a proposed Consent Decree ("Consent Decree") against the Governor of the State of

Illinois, the Secretary of the Illinois Department of Human Services, the Director of the lllinois

Department ofHealthcare and Family Services, the Director of the lllinois Department of Aging, and the

Director of the Illinois Department of Public Health regarding services provided to individuals with

disabilities residing in nursing facilities in Cook County, Illinois. The parties to that lawsuit have reached

a proposed Consent Decree that, if approved by the Court, would provide certain rights and benefits to

eligible individuals. The Court will hold a hearing to consider whether to approve the proposed Consent

Decree on

at

a.m, before the Honorable Joan Humphrey

Lefkow, United States District Judge, in the Dirksen Federal Building, 219 S. Dearborn Street, Room

1925, Chicago, Illinois 60604.

Who's Included? You are a Class Member whose rights may be affected by the proposed Consent Decree if you are a Medicaid-eligible adult with a physical disability or a primary diagnosis of serious
mental illness that causes you to be substantially functionally limited in certain respects, who lives in a nursing facility located in Cook County, lllinois, and who, with appropriate supports and services, may be able to live in the community.

What Does the Proposed Settlement Provide? Plaintiffs and Defendants have asked the Court to enter an order that, if approved, would provide certain rights and benefits (as more fully described in the proposed Consent Decree) to eligible Class Members living in nursing facilities. The Consent Decree provides eligible Class Members the opportunity to make meaningful informed choices about where they live; requires Defendants to ensure that supports and services are available to individuals with disabilities in integrated, non-institutional settings; and establishes procedures to avoid unjustified institutionalization.

How Can I Get More Information? A detailed Notice describing the proposed Consent Decree, the rights of class members and a copy of the proposed Consent Decree itself are available on the website of the Division of Mental Health of the Illinois Department of Human Services http://www.dhs.state.il.us/page.aspx?item=29728, Division of Rehabilitation Services of the Illinois Department of Human Services http://www.dhs.state.il.us/page.aspx?item=29764, Equip for Equality www.equipforequality.org, Access Living www.accessliving.org, and the American Civil Liberties Union of Illinois www.aclu-il.org. If you have any questions for plaintiffs' lawyers, you may contact Patti Werner at Access Living, 115 W. Chicago Ave., Chicago, IL 60654, (312) 640-2148, TTY (312) 6402102.

Dated: _ _ _ _ ___, 2011

Honorable Joan Humphrey Lefkow United States District Court Judge

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EXHIBIT B-2

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LENILCOLBERT, et al., Plaintiffs, v.
PAT QUINN, et al., Defendants.

)

)

)

)

No. 07 C 4737

)

)

Judge Joan Humphrey Lefkow

)

Magistrate Judge Maria Valdez

)

)

)

NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND HEARING

PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY
A SETTLEMENT HAS BEEN PROPOSED THAT MAY AFFECT THE RIGHTS OF INDIVIDUALS WITH DISABILITIES LIVING IN NURSING FACILITIES WHO MAY BE ABLE TO LIVE IN COMMUNITY- BASED SETTINGS.
BASIC INFORMATION
1. WHY DID YOU GET THIS NOTICE?
You were sent this Notice to inform you about the proposed settlement ofthe class action lawsuit, as set forth in the Consent Decree ("Consent Decree") proposed in this case, which may affect the rights of individuals with disabilities living in nursing facilities in Cook County who with appropriate supports and services may be able to live in the community. This Notice was sent to you and other people (and/or guardians or legal representatives) in Cook County who have been identified as being eighteen (18) years of age or older with a physical disability or mental illness, Medicaid-eligible and Who may be able to live in the community, as well as individuals and entities who care for and work with them.
This Notice explains the lawsuit and the key terms of the Consent Decree, tells you how to obtain more information, explains how to determine whether an individual with a disability living in a nursing facility is a Class Member in the lawsuit, and explains how Class Members (and/or their legal representatives) can tell the Court whether they disagree with the Consent Decree or some part of it.
The Consent Decree described in this Notice is subject to Court approval, and thus has not yet been made final. The Court has scheduled a hearing to determine the fairness, adequacy

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and reasonableness ofthe Consent Decree and to consider any objections Class Members may have to the Consent Decree.
The Consent Decree may affect the rights of individuals with disabilities living in nursing facilities in Cook County who may be able to live in community-based settings. The Consent Decree does not require anyone currently living in a nursing facility to move out unless he or she specifically chooses to do so.
2. WHAT IS THIS LAWSUIT ABOUT?
The Court in charge of the lawsuit is the United States District Court for the Northern District of Illinois, and the case is known as Colbert v. Quinn, Case No. 07-4737. The people who sued are called the Plaintiffs, and the people they sued are called the Defendants.
Plaintiffs filed this lawsuit on August 22, 2007, seeking to prevent what they allege is their unnecessary segregation in nursing facilities by Defendants. The named Plaintiffs are adults with physical disabilities or mental illness who are or were institutionalized in Cook County nursing facilities. The named Defendants are: Pat Quinn, the Governor of the State of Illinois; Michelle R. B. Saddler, Secretary of the Illinois Department of Human Services; Julie Ramos, Director of the Illinois Department ofHealthcare and Family Services; Damon T. Arnold, Director of the Illinois Department of Public Health; and Charles D. Johnson, Director of the Illinois Department on Aging.1 The Defendants are responsible for administering the State of Illinois's programs for people with physical disabilities and mental illness. The lawsuit seeks to compel the State of Illinois (through the Defendants) to comply with federal law and rulings of the United States Supreme Court by offering individuals with disabilities the opportunity to make meaningful, informed choices about whether to live, and receive support service, in the community.
3. WHAT IS A CONSENT DECREE AND WHY IS IT BEING PROPOSED HERE?
A Consent Decree is a final order of a court in a case that is agreed to by all Plaintiffs and Defendants. The Court in this case did not decide in favor of either Plaintiffs or Defendants. There was no trial or dispositive court ruling in the case. Instead, the Plaintiffs and Defendants negotiated a settlement of this dispute that is set out in the Consent Decree. Plaintiffs and Defendants have asked the Court to enter the Consent Decree as an official order of the Court. By settling this lawsuit, the Parties avoid having to face the uncertainty of the outcome of a trial as well as the substantial cost of a trial. In addition, people with physical disabilities and mental illness living in Cook County will get relief from Defendants much-sooner than if they had to wait for the resolution of the lawsuit through a trial and expected appeals. That process could take many years. The Plaintiffs who filed the lawsuit and their attorneys think the Consent Decree is the best outcome for the people who are Class Members.
1 Since this lawsuit was filed, Charles D. Johnson has retired and Michael Gelder has been named the Acting Director of the Department on Aging.
2

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4. WHO IS A CLASS MEMBER?

The Court has certified the lawsuit as a class action and decided that everyone who fits this description is a Class Member: any adult with a disability who (a) is Medicaid-eligible; (b) resides in a nursing facility in Cook County; and (c) may, with appropriate supports and services, be able to live in the community.

5. WHAT IS CONSIDERED A DISABILITY?

In the Consent Decree, the definition of"disability" includes a physical disability as well as mental illness. For the purposes of this lawsuit, disability does not include a developmental disability. Persons with developmental disabilities are not Class Members. Under the Consent Decree, a Class Member with a physical disability has a disability as defined in the Americans with Disabilities Act ("ADA"), the Rehabilitation Act, or the Social Security Act, other than a mental illness or a developmental disability.

Under the Consent Decree, a Class Member with mental illness must have a primary diagnosis of "serious mental illness" and be substantially functionally limited due to mental illness in at least two of the following areas: self-maintenance, social functioning, community living activities; and work-related skills. "Serious mental illness" is defined as a diagnosis of: schizophrenia; delusional disorder; schizo-affective disorder; psychotic disorder not otherwise specified; Bipolar Disorder I - mixed, manic, and depressed; Bipolar Disorder II; Cyclothymic Disorder; Bipolar Disorder not otherwise specified I; and major depression, recurrent. In addition, the disability must be of an extended duration expected to be present for at least a year, which results in a substantial limitation in major life activities. These individuals will typically have experienced two or more psychiatric hospitalizations and receive Social Security Income (SSI) or Social Security Disability Income (SSDI) because of mental illness, or have been deemed eligible for SSI or SSDI.

THE SETTLEMENT

6. WHAT DOES THE CONSENT DECREE IN THIS CASE PROVIDE?

The Consent Decree that the Plaintiffs and Defendants have asked the Court to enter in this case, if approved by the Court, would provide certain rights and benefits to eligible Class Members as defined above. If the Consent Decree is not approved, it will be withdrawn and the lawsuit will continue. A copy of the entire Consent Decree is available on the following websites:

Division ofMental Health of the Illinois Department of Human Services Division ofRehabilitation Services of the Illinois Department of Human

http://www.dhs.state.il.us/page.aspx?item=29728 http://www.dhs.state.il.us/page.aspx?item=29764

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Services Access Living Equip for Equality ACLU of Illinois

www .accessliving.org www .equipforequality.org www.aclu-il.org

Plaintiffs and Defendants in this case believe that the Consent Decree is fair, reasonable and provides adequate and appropriate relief to all eligible Class Members. The parties believe the Consent Decree provides eligible Class Members the opportunity to make meaningful and informed choices about where they live. The Consent Decree requires Defendants to make available adequate services to support Class Members who choose to receive services in the community, rather than in a nursing facility. The Consent Decree establishes procedures to allow Class Members to choose placement in the community while also allowing Class Members who choose to remain living in nursing facilities.

The following is a brief summary of key terms in the Consent Decree:

• Measurable Benchmarks - The Consent Decree establishes benchmarks for moving specific numbers of Class Members out of nursing facilities during the first phase of implementation. Under the Consent Decree, Defendants are required to move 1,100 Class Members into the community within the first two and one half years of implementation. Under the Consent Decree, 300 Class Members are to be moved in the first year; 500 in the second year, and 300 Class Members in the first six months of year three. The Parties will develop benchmarks for Class Members moving into the community during the second phase of implementation.

The Consent Decree does not require anyone currently living in a nursing facility to move out unless he or she specifically chooses to do so.

• Housing Assistance - The Consent Decree requires Defendants to provide up to a total of $10 million in housing assistance in order to support the first 1,100 Class Members moving into the community during the first two and one half years of implementation. In addition, Defendants are required to provide funds for required home modifications, and for the purchase of basic furniture, and other household items such as sheets, towels, and kitchen utensils. During the first phase of implementation, the Parties will develop a plan that addresses housing assistance for these and other Class Members going forward.

• Cost-Neutrality- The Consent Decree requires that the Parties develop a plan for the second phase of implementation that provides for Class Members to continue moving into the community at a reasonable pace and in a "cost-neutral" fashion. That means that the cost incurred by the State for Class Members who move into the community will, in aggregate, be no more than the cost that the State would have spent had those moved Class Members remained in nursing facilities.

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• Development of Community Capacity - The Consent Decree requires Defendants to develop the services needed to adequately support Class Members who choose to live in the community.
• Monitoring and Compliance - Under the Consent Decree, the Court will appoint an independent and impartial monitor ("Monitor") who is knowledgeable about providing services to people with mental illness or physical disabilities in the community. The Monitor will work with the Parties to develop the plan for the second phase of implementation as well as assist the Court in evaluating the Defendants' compliance with the Consent Decree.
• Attorneys' Fees and Costs- Under the Consent Decree, Defendants will pay $1,200,000 to the 'attorneys who brought this case on behalf of the Plaintiffs and the Class Members ("Class Counsel"). Those attorneys are identified below in response to question 13. This payment will be in full settlement of attorneys' fees and costs incurred in connection with the prosecution of the lawsuit. This is substantially less than the actual fees that Class Counsel have incurred in pursuing this lawsuit. Class Members do not have to pay anything to Class Counsel. Private law firm counsel are not retaining any portion of these fees; they are donating their share of fees to one of the not-for-profit organizations involved in bringing this case.
7. WHAT IS A "COMMUNITY-BASED SETTING" AND WHAT ARE "COMMUNITY-BASED SERVICES"?
In the Consent Decree, "Community-Based Setting" means the most integrated setting appropriate to promote a Class Member's independence in daily living and ability to interact with persons without disabilities to the fullest extent possible. A Community-Based Setting may be a house, an apartment, a supportive living facility, permanent supportive housing, or another type of supported or supervised residential setting that is specifically chosen by the Class Member.
In the Consent Decree, "Community-Based Services" means those services provided to a person living in a Community-Based Setting under the Illinois Medicaid State Plan, services provided under any applicable Home and Community Based Services Waiver, services described in the Medicaid Community Mental Health Services Program administered by the Illinois Department of Human Services' Division ofMental Health and authorized pursuant to 59 Ill. Adm. Code Part 132 (hereafter referenced as Rule 132) in effect as of the Approval Date, including any subsequent amendments thereto, services listed in the State of Illinois Community Mental Health Services Reimbursement Guide or services provided pursuant to any other similar government programs. Some examples of Community-Based Services are personal attendants and homemakers who can assist with preparing meals, dressing, bathing, and other activities of daily living, in-home nursing care, and mental health services to address crisis management, risk factors, self-advocacy, or medication management.
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8. WILL CLASS MEMBERS RECEIVE MONEY FROM THE CONSENT DECREE?
No. The lawsuit did not seek money damages on behalf of any Class Member, and there is no money awarded to any Class Member as part of the Consent Decree.
CLASS MEMBERS' RIGHTS
Class Members (and/or guardians or legal representatives) can tell the Court whether they agree or disagree with the Consent Decree or some part of it.
9. HOW DO YOU TELL THE COURT THAT YOU AGREE OR DISAGREE WITH ALL OR PART OF THE CONSENT DECREE?
All Class Members have the right to state any objection they may have to the Consent Decree and to give reasons why they believe the Court should not approve it. All Class Members have the right to state their approval of the Consent Decree, although they are under no obligation to do so.
The Court and the Parties will consider those opinions submitted by Class Members in the following manner:
The statement must include the name and number of the case, (Colbert v. Quinn, Case"'" No. 07-4737);
The statement must include a statement of the reasons why the Court should or should not approve the Consent Decree;
The statement must be no longer than 15 pages in length;
The statement must include the name, address, telephone number, and signature of the individual submitting it; and
The statement must be submitted by U.S. Mail and postmarked no later than_, 2011, to
Patricia A. Werner Access Living 115 West Chicago Avenue Chicago, Illinois, 60654.
Attorney Patricia Werner, co-counsel for the Class, will inform the Court and other counsel for the Plaintiffs and Defendants of the statements that she receives and that Class Members want presented to the Court. Please note that it is not sufficient to simply state that you object. Objections must state the reasons why the Consent Decree should not be approved.
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THE COURT'S FAIRNESS HEARING

The Court will hold a Fairness Hearing to decide whether to approve the Consent Decree.

10. WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE CONSENT DECREE?

The Fairness Hearing will be held before the Honorable Joan Humphrey Lefkow, United

States District Judge, in the Dirksen Federal Building, 219 S. Dearborn Street, Room 1925

Chicago, Illinois 60604, on

, 2011, at

a.m. At this hearing,

the Court will consider whether the Consent Decree is fair, reasonable, and adequate. The Court

will consider any objections made according to the procedures described above.

11. DO YOU HAVE TO COME TO THE HEARING?

All Class Members are welcome to attend the Fairness Hearing if they choose to do so, but no one is required to attend the Fairness Hearing. Plaintiffs' and Defendants' lawyers will be available to answer questions Judge Lefkow may have. If you submit a statement or objection in accordance with the procedures described in Section 9, above, you are not required to come to Court to talk about it. As long as you mailed your written statement or objection in accordance with the procedures described in Section 9, above, the Court will consider it.

12. WHO CAN SPEAK AT THE FAIRNESS HEARING?

You may ask the Court for permission to Speak at the Fairness Hearing. The Judge will decide whether you are permitted to do so. To request permission to speak at the Fairness Hearing, you must send a request to the Court, Class Counsel, and Counsel for the Defendants in the following manner:

The request must be entitled: "Notice of Intention to Appear in Colbert v. Quinn, Case No. 07-4737"
You must send one copy of your "Notice of Intention to Appear" to the Court at the following address via U.S. mail postmarked no later than _ _ _ _ _ __

Clerk ofthe Court Dirksen Federal Building 219 South Dearborn Street Chicago, lllinois 60604
The Notice must be received by the Clerk of the Court no later than _ _ __

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You must send one copy of your "Notice of Intention to Appear" to attorney listed below via U.S. mail postmarked no later than _ _ _ _ _ _ __
Patricia Werner Access Living of Metropolitan Chicago 115 W. Chicago Ave. Chicago, IL 60654
Be sure to include your name, address, telephone number, and your signature on your "Notice of Intention to Appear."
If you file a statement or objection and also want to ask for permission to speak at the Fairness Hearing, you can include the "Notice of Intention to Appear" in the same document as the statement/objection that is sent to Patricia Werner at Access Living, 115 West Chicago Avenue, Chicago, Illinois, 60654. Ms. Werner will share copies of these ''Notices of Intention to Appear" with other counsel for the parties.
LAWYERS REPRESENTING THE CLASS
13. WHO ARE THE CLASS MEMBERS' LAWYERS IN THE CASE?
The Court ordered that the following attorneys represent the Class Members. These lawyers are called "Class Counsel.;,
Stephen D. Libowsky SNR DENTON US LLP 233 South Wacker, Suite 7800 Chicago, IL 60606
Celiza P. Bragan9a Patricia A. Werner ACCESS LIVING OF METROPOLITAN CHICAGO 115 West Chicago Avenue Chicago, IL 60654
Benjamin S. Wolf THE AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS 180 North Michigan Avenue, Suite 2300 Chicago, IL 60601
Karen I. Ward EQUIP FOR EQUALITY 20 N. Michigan, #300 Chicago, IL 60602
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Stephen F. Gold LAW OFFICES OF STEPHEN F. GOLD 125 South Ninth Street, Suite 700 Philadelphia, PA 19107

Class Members will not be charged for these lawyers' fees or expenses.

GETTING MORE INFORMATION

14. HOW DO YOU GET MORE INFORMATION ABOUT THE CONSENT DECREE?

A copy of the entire Consent Decree is available on the following websites:

Division of Mental Health ofthe Illinois Department of Human Services Division ofRehabilitation Services of the Illinois Department ofHuman Services Access Living Equip for Equality ACLU ofillinois

http://www .dhs.state.il.us/page.aspx?it em=29728
http://www.dhs.state.il.us/page. aspx?it em=29764
www .accessliving.org www .equipforequality.org www.aclu-il.org

If you have any questions for Plaintiffs' lawyers or want to request that a copy of the Consent Decree be mailed to you, you may contact Patricia A. Werner at Access Living, 115 West Chicago Avenue, Chicago, Illinois 60654, (312) 640-2148, TTY (312) 640-2102.

Dated: - - - - -, 2011

The Honorable Joan Humphrey Lefkow United States District Court Judge

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EXHIBIT C

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LENIL COLBERT, et al., Plaintiffs, v.
PAT QUINN, et al., Defendants.

)

)

)

)

No. 07 C 4737

)

)

Judge Joan Humphrey Lefkow

)

Magistrate Judge Maria Valdez

)

)

)

ORDER

This matter is before the Court on the Joint Motion for Preliminary Approval of Consent

Decree and Approval ofNotice Plan ("Motion"). Having reviewed the Motion and supporting

Memorandum, and being otherwise fully advised.

IT IS HEREBY ORDERED:

I.

The Court preliminarily finds that the Consent Decree attached as Exhibit A to the

Motion is within the appropriate range of fairness, adequacy and reasonableness.

2. The Court approves the Notice Plan attached as Exhibit B to the Motion. Notice

shall occur by publication, posting on the internet, and sending written notice via first class mail

as follows:

a) Defendants shall cause the notice set forth in Exhibit B-1 to the Motion to

be published in the Chicago Sun-Times, Chicago Defender, Daily Herald, Southtown

Star, and Pioneer Press. Publication shall occur on at least a single business day within

fifteen (15) business days from the date of preliminary approval of the Consent Decree.

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b) Defendants shall post notice in the form attached as Exhibit B-2 to the

Motion on the following websites within five (5) business days from the date of

preliminary approval of the Consent Decree and maintain that posting through and

including the date of the fairness hearing set by this Court:

Division of Mental Health of the Illinois Department ofHuman Services Division of Rehabilitation Services of the Illinois Department ofHuman Services

http://www.dhs.state.il.us/page.aspx?ite m=29728
http://www.dhs.state.il.us/page.aspx?ite m=29764

c)

Plaintiffs' counsel shall post notice in the form attached as Exhibit B-2 to

the Motion on the following websites within five (5) business days from the date of

preliminary approval of the Consent Decree and maintain that posting through and

including the date of the fairness hearing.

Access Living Equip for Equality ACLU of Illinois

www .accessliving.org www.equipforequality.org www.aclu-il.org

d) Defendants shall arrange and pay for notice to be sent via first class mail in the form attached as Exhibit B-2 to the Motion to all preadmission screening agencies in Cook County, Illinois, each of the disability rights advocacy organizations identified in the Parties' Notice Plan, and all nursing facilities located in Cook County, Illinois, with guidance for distribution to all nursing facility residents and their guardians, if any. All notices must be postmarked within fifteen (15) business days from the date of preliminary approval of the Consent Decree.

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3. Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, the Court will hold a fairness hearing regarding the fairness, reasonableness and adequacy of the proposed Decree on _ _ _ _ _ _ _ at _ _ _ _a.m. All Class Members, guardians or others who wish to participate in the fairness hearing, or comment on or object to the proposed Decree, shall file with the Court a written submission by _ _ _ _ _ _and serve a copy of the submission on:

Patricia A. Werner Access Living of Metropolitan Chicago 115 W. Chicago Ave. Chicago, IL 60654
The parties shall file responses to the written submissions on or before _ _ _ _ _ _ _____:,

Entered: --------,..---:' 2011

Honorable Joan Humphrey Le:tkow United States District Court Judge

 </s> Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 1 of 39 PageID #:1510

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LENIL COLBERT, et al., Plaintiffs, v.
PAT QUINN, et al., Defendants.

)

)

)

)

No. 07 C 4737

)

)

Judge Joan Humphrey Lefkow

)

Magistrate Judge Maria Valdez

)

ORDER This matter is before the Court on the Joint Motion for Approval of Consent Decree.

Having reviewed the Motion and supporting Memorandum, and having conducted a fairness

hearing pursuant to Rule 23 (e) of the Federal Rules of Civil Procedure, and being otherwise

fully advised;

IT IS HEREBY ORDERED:

The Court finds that reasonable notice of the proposed Consent Decree of today's

fairness hearing has been provided to all class members and potential class members in

accordance with due process and governing law. Having considered all written submissions and

the presentation made in open court, the Court finds the proposed Consent Decree to be a fair,

reasonable and adequate resolution of this class action litigation, made at arm's length between

the parties and taking into account the benefits of the litigation to the Plaintiffs as compared with

the benefits offered by the proposed Consent Decree, the resources available to the State, the

Court The court hereby approves the proposed Consent Decree pursuant to Federal Rule of Civil

Procedure 23.

Entered:*· 2011

H orable Joan Hump United States District Court Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LENIL COLBERT, et al., Plaintiffs,
V.
PAT QUINN, et al., Defendants.

)

)

)

)

No. 07 C 4737

)

)

Judge Joan Humphrey Lefkow

)

Magistrate Judge Maria Valdez

)

)

)

CONSENT DECREE

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{
TABLE OF CONTENTS INTRODUCTION AND BACKGROUND ....................................................................... 1 DECREE ............................................................................................................................ 2 I. JURISDICTION ..................................................................................................... 2 II. PURPOSE .............................................................................................................. 2 III. CLASS DEFINITION ............................................................................................ 2 IV. DEFINITION OF TERMS ..................................................................................... 2 V. THE DISABILITY SERVICES SYSTEM .......................................................... 13 VI. EVALUATIONS AND SERVICE PLANS ......................................................... 13 VII. OUTREACH ........................................................................................................ 21 VIII. IMPLEMENTATION .......................................................................................... 21 IX. MONITORING AND COMPLIANCE ............................................................... 24 X. CLASS REPRESENTATIVES ............................................................................ 27 XI. ATTORNEYS' FEES AND COSTS ................................................................... 27 XII. MISCELLANEOUS PROVISIONS .................................................................... 28
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INTRODUCTION AND BACKGROUND Plaintiffs,1 a class of Illinois residents with disabilities living in Nursing Facilities in Cook County, Illinois, filed this lawsuit on August 22, 2007, seeking declaratory and injunctive relief to redress alleged violations of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-32, Section 504 ofthe Rehabilitation Act, 29 U.S.C. § 794(a), and the Social Security Act, 42 U.S.C. §§ 1396-1396v (SSA). Plaintiffs allege that they are unnecessarily segregated and institutionalized in Nursing Facilities and forced to live with numerous other people with disabilities in violation of the ADA and the Rehabilitation Act, which require Illinois to administer services in the most integrated appropriate setting. Plaintiffs allege that Defendants have denied them the opportunity to live in appropriate integrated settings where they could lead more independent and more productive lives in their own communities. Plaintiffs seek injunctive relief requiring that Defendants (1) inform Plaintiffs as to their eligibility for Community-Based Services and their choice of such services; (2) provide comprehensive evaluations to determine the eligibility of Plaintiffs for CommunityBased Services, both prior to and after admission to Nursing Facilities; and (3) provide, as appropriate, Plaintiffs with services and supports in the Community-Based Setting and refrain from providing services only in institutional settings. Defendants deny liability and specifically deny that they have violated the ADA, the Rehabilitation Act, or the SSA. Therefore, upon all of the foregoing, and the Court being otherwise fully advised, the Court hereby ORDERS, ADJUDGES and DECREES as follows:
Capitalized terms set forth herein are defined in Section IV, "Definition of Terms." All other terms will have the meaning ordinarily attributed to them.

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DECREE I. JURISDICTION
The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343. II. PURPOSE
This Consent Decree shall assure that Defendants provide Plaintiffs and Class Members with the opportunity to receive the full array of supports and services they need in the most integrated settings appropriate to their needs, including Community-Based Settings, and to promote the development of integrated settings that attempt to maximize individuals' independence, choice, opportunities to develop and use independent living skills, and that attempt to afford them the opportunity to live their lives similar to individuals without disabilities. III. CLASS DEFINITION
On September 29, 2008, the Court certified a class of all Medicaid-eligible adults with disabilities, who are being, or may in the future be, unnecessarily confined to Nursing Facilities located in Cook County, Illinois, and who with appropriate supports and services may be able to live in a Community-Based Setting? IV. DEFINITION OF TERMS
A. As used herein, the following terms have the following meanings:

2

Although there are Class Members of different ages, Class Members are members of the

class not by virtue of their age but by virtue of having either a physical disability or a Mental

Illness. Under the State's current service delivery system, such Class Members might be served

under different programs administered by different agencies, based in part on age. The relief to

which a Class Member is entitled will be determined by a Class Member's needs, qualified by

the fact that Class Members may be served under different programs.

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1. "Approval Date" means the date on which the Court enters this Consent Decree.
2. "Class Counsel" means SNR Denton US LLP, Access Living of Metropolitan Chicago, Equip for Equality, the Roger Baldwin Foundation of ACLU, Inc., and the Law Offices of Stephen F. Gold.
3. "Class" and "Class Members" mean the persons who meet the definition set forth in Section III, above, and Section IV.A. 3 or 4 below.
4. "Class Members with Mental Illness" are those Class Members who have a primary diagnosis of Mental Illness as defined herein.
5. "Class Members with Physical Disabilities" are those Class Members who have a disability as defined in the ADA, the Rehabilitation Act or the SSA other than a Mental Illness or a developmental disability.
6. "Class Representatives" means Lenil Colbert, Ernest Reeves and Kenya Lyles.
7. "Community-Based Services" means those services provided to a person living in a Community-Based Setting under the Illinois Medicaid State Plan, services provided under any applicable HCBS Waiver, services described in the Medicaid Community Mental Health Services Program administered by the Illinois Department of Human Services' Division of Mental Health and authorized pursuant to 59 Ill. Adm. Code Part 132 (hereafter referenced as Rule 132) in effect as of the Approval Date, including any subsequent amendments thereto, services listed in the State oflllinois Community Mental Health Services Reimbursement Guide or services provided pursuant to any other similar government programs. - 3-

Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 7 of 39 PageID #:1516
8. "Community-Based Setting" means the most integrated setting appropriate to promote a Class Member's independence in daily living and ability to interact with persons without disabilities to the fullest extent possible. A Community-Based Setting may include, as is appropriate to the Class Member, a Private Residence, a Supportive Living Facility, Permanent Supportive Housing, or other appropriate supported or supervised residential settings that are specifically chosen by the Class Member or where the Class Member has one of the conditions enumerated in Section VI(D)(3) below.
9. "Cost Neutral Plan" means the plan developed by the Parties and Monitor as provided in Section VI.C 4 and 5 herein. The Cost Neutral Plan must include agreed upon time periods during which Defendants will transition Class Members to Community-Based Settings such that, based on the criteria described herein and set forth in more detail in the plan, the transitions of Class Members cost the same or less to the State in the aggregate as if those Class Members instead had remained in Nursing Facilities. For purposes of the Cost Neutral Plan, data and other information regarding costs shall be collected and analyzed as follows: a) The Parties first shall calculate, for each transitioned Class Member, the State's total annualized cost for the Class Member's previous year's stay in the Nursing Facility and the total annualized cost for the Class Member's other Medicaid eligible expenses and shall then subtract all items that reduce the State's cost, including the Class Member's contributions, if any, - 4-

Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 8 of 39 PageID #:1517
from Social Security, SSDI, pension or other sources, and any Federal Medicaid match. For example, the State's total annual cost of$46,000, minus a Class Member's contribution of$7,560 ($630/month) equals $38,440, minus the standard fifty percent (50%) Medicaid match of$19,220 equals the State's net annual cost of$19,220.
b) The Parties shall track each Class Member who is transitioned to a Community-Based Setting and determine the State's net annual cost for each Class Member by: (i) adding up the State's total annual payments to the community provider(s) and other Medicaid eligible expenses for the Class Member, (ii) adding an agreed-upon amortized portion of the Transition Costs or other one-time costs paid to or on behalf of the Class Member, (iii) adding an agreed-upon amortized portion of any additional agreedupon administrative or collateral costs incurred by the State as a result of implementation of this Decree (e.g., hiring Evaluators; costs directly related to persons choosing to enter Nursing Facilities who, but for this Decree, would not have done so; actual investment of capital for development of Community-Based Settings used by Class Members), (iv) adding Housing Assistance, and then (v) subtracting the Federal Medicaid match. For example, a total annual payment of$14,000 to community providers and medical care providers, plus $1,000 for the amortized portion of Transition Costs or other one-time costs
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Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 9 of 39 PageID #:1518
eligible for federal match, plus $1,000 as the amortized portion of State costs not eligible for federal match (e.g., administrative and collateral costs), plus Housing Assistance of $8,400 equals $24,400, minus a Medicaid match of$7,500 equals the State's net annual cost of $16,900 and a net annual savings of $2,320.
c) The Parties shall aggregate the cost differential for all Class Members transitioned in the first 24 months following the finalization of the Implementation Plan; provided, however, that the Parties may agree to also use the data from the six months following the first 24 months and any other information relevant to projecting future costs. 10. "Court" means the United States District Court for the Northern District of Illinois, Eastern Division. 11. "Decree" means this Consent Decree. 12. "Defendants" means the current or any future Governor of the State of Illinois, Secretary of the Illinois Department of Human Services, Director of the Illinois Department of Public Health, Director of the Illinois Department on Aging, and Director of the Illinois Department of Healthcare and Family Services including any head of any successor to the departments listed herein. 13. "Evaluation" means an assessment for Class Members, provided by a Qualified Professional, who is appropriate for the respective disability population, to determine a Class Member's level of need and/or eligibility for services and to determine the services appropriate for that Class
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Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 10 of 39 PageID #:1519
Member, including the services needed to reside in a Community-Based Setting. 14. "Home and Community-Based Services Waiver (HCBS Waiver)" means a federally approved waiver program under which services are offered as an alternative to institutional care for individuals who meet the requirements ofthe HCBS Waiver. 15. "Home Accessibility Adaptation Costs" mean, as determined in the Service Plan development process, the one-time payment of allowable expenses necessary to make a Community-Based Setting accessible for a Class Member; provided, however, that Home Accessibility Adaptation Costs shall not exceed $5,000 per Class Member. 16. "Housing Assistance" means, as determined in the Service Plan development process, the financial assistance for housing that is necessary to make it possible, if provided together with the Community-Based Services and any Transition Costs and Home Accessibility Adaptation Costs identified in the Service Plan, for the Class Member to transition from a Nursing Facility to a Community-Based Setting, subject to the following limitations: (1) that the Class Member has been a resident of a Nursing Facility for at least 6 consecutive months, including any temporary stay in a hospital or other long-term care facility, as of the date of the Class Member's first Evaluation; (2) that the Class Member will apply as soon as practicable for a federal Section 8 housing voucher or other similar housing rental subsidy; (3) that, once an adequate housing voucher or subsidy is received by the Class Member, the Housing
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Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 11 of 39 PageID #:1520
Assistance will terminate; (4) the total Housing Assistance provided to each eligible Class Member shall be calculated as follows: the monetary difference between the actual rent paid by the Class Member or the Fair Market Rent (FMR), as defined by the United States Department of Housing and Urban Development and found at www.huduser!. org/portal/datasets/fmr/fmrs/FY20 11 code/20 11 summary.odn, as amended, whichever is lower, less any government-funded housing subsidy, and 30 percent of the Class Member's Income;22 and (5) consistent with Defendants' obligations in Sections V and VI to provide services, support resources and the benchmarks set forth in Section VI(C), the total Housing Assistance provided to eligible Class Members shall be no more than $1,330,000 in the first year following the finalization of the Implementation Plan, no more than $4,680,000 in the second year following the finalization of the Implementation Plan (including for transitions occurring in the first year), no more than $3,990,000 in months 25-30 following the finalization of the Implementation Plan (including for transitions occurring in the first and second years), with aggregate Housing Assistance maximums determined thereafter as part of the

22

For example, if a Class Member is paying actual rent of $900.00 per month, the FMR is

$800.00 per month, the Class Member has Income of $600.00 per month and is receiving another

rent subsidy of $100.00 per month, then the Housing Assistance would be $520.00 per month,

calculated as $800-$100 = $700-$180 [.3 x $600] = $520. As another example, if a Class

Member with $600.00 per month Income and no other rent subsidy is living with a relative and

paying half of the actual rent of$1,100.00 per month, and the FMR is $1,100.00, then Housing

Assistance would be $330.00 per month, calculated as $550-$180 [.3 x $600] = $330.

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Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 12 of 39 PageID #:1521
development of the Cost Neutral Plan, as described in Section VI.C.4 and 5 herein. 17. "Illinois Medicaid State Plan" or "State Plan" means the plan that was submitted by the State of Illinois to the United States Department of Health and Human Services, Centers for Medicare and Medicaid Services, in accordance with Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396v, in effect as ofthe date ofthe Approval ofthe Decree, including any subsequent amendments thereto. 18. "Income" shall mean all monies classified as Adjusted Gross Income in the Internal Revenue Code, including, but not limited to, earnings, private or public pensions, self employment social security benefits, SSI benefits, dividends, interest, capital gains, rents and federal and earned income credits. 19. "Implementation Plan" means the plan set forth below in Section VIII. 20. "Mental Illness" means serious mental illness as defined in 77 Illinois Administrative Code, Chapter I, Section 300.4000. 21. "Monitor" means the person or entity appointed by the Court pursuant to Section IX hereof to perform the functions more fully described therein. 22. "Nursing Facility" means a long term care facility licensed by the Illinois Department of Public Health under 77 Ill. Admin. Code 300, where the license authorizes the facility to provide, for one or more beds, skilled nursing level of care to its residents, where "skilled nursing level of care" means the provision of skilled nursing care, continuous skilled nursing
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Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 13 of 39 PageID #:1522
observations, restorative nursing, and other services under professional direction with frequent medical supervision; provided, however, that a Nursing Facility does not include a privately owned long-term care facility classified as an Institution for Mental Diseases (IMD) for purposes of eligibility for Federal Medicaid matching funds. 23. "Parties" means Plaintiffs and Defendants, collectively. 24. "Permanent Supportive Housing" or "PSH" refers to integrated permanent housing, with tenancy rights, linked with flexible Community-Based Services that are available to consumers when they need them, but are not mandated as a condition of tenancy. For purposes of this Decree, PSH includes scattered-site housing as well as apartments clustered in a single building. 25. "Person-Centered" means a planning process designed to empower Class Members to make plans for their future according to their needs and desires, with the support of their legal guardians, family, friends, or service providers as appropriate. For Class Members with Mental Illness, "Person Centered" means a process based on a model of recovery. 26. "Plaintiffs" means all Class Members. 27. "Pre-Admission Screening and Resident Review (PASRR) Agency" means any entity that provides assessments for Class Members with Mental Illness, and that (i) contracts with the State to perform, in conformance with federal screening requirements, pre-admission screening and resident reviews on persons with Mental Illness who may
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Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 14 of 39 PageID #:1523
be placed or currently reside in a Nursing Facility, and (ii) as a condition of its contract with the State, has received sufficient training and/or has sufficient experience providing services to demonstrate a comprehensive understanding ofthe available Community-Based Settings, including Permanent Supportive Housing, and Community-Based Services, Transition Costs and Housing Assistance. 28. "Pre-Admission Screening" means an assessment for Class Members, conducted by a Qualified Professional, with the input of the Class Member, to determine a Class Member's need for long-term care and the appropriate level of care, and a Class Member's desire to receive Community-Based Services or placement in a Community-Based Setting. 29. "Private Residence" means a house, apartment, condominium, townhouse or any housing structure that may or may not be shared with family or friends. A Private Residence may not be an IMD, a Nursing Facility, a group home or any supervised or supported setting. 30. "Qualified Professional" means a person, including an employee of a PASRR Agency, who (a) is not employed by or an agent of a Nursing Facility, a hospital or other long-term care facility that also provides housing; (b) may be employed by a governmental body so long as the collective group of Qualified Professionals includes a substantial number of persons not employed by any Defendant agency; and (c) is certified or approved by the Defendants as appropriately licensed, skilled, trained and qualified to conduct Evaluations.
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31. "Service Plan" means a Person-Centered plan with the goal of moving a Class Member to a Community-Based Setting, strategies to be employed to achieve that goal and a description of all Community-Based Services, Transition Costs, Home Accessibility Adaptation Costs and/or Housing Assistance necessary to support that goal.
32. "State" means the State oflllinois. 33. "Supportive Living Facility" or "SLF" means a residential setting meeting
the requirements of Subpart B, 89 Ill. Admin. Code 146.205. 34. "Transition Costs" mean the one-time payment of allowable expenses
necessary to accomplish the transition of a Class Member from a Nursing Facility to a Community-Based Setting, limited to those expenses that are necessary to enable a person to establish a basic household that do not constitute room and board, including: (a) security deposits (including first month rent payments if so included by a landlord in advance "deposits"), move-in application or other fees that are required to obtain a lease on an apartment or home; (b) essential household furnishings and moving expenses required to occupy and use a community domicile, including furniture, window coverings, food preparation items, and bed/bath linens; (c) set-up fees or deposits for utility or services access, including telephone, electricity, heating and water; (d) services necessary for the person's health and safety, such as pest eradication and one-time cleaning prior to occupancy; and (e) first month's food needs. Expenditures listed herein as allowable Transition Costs will be approved only to the extent
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that they are reasonable and necessary as determined through the Service Plan development process, and are clearly identified in the Service Plan, and only to the extent that the Class Member cannot pay for such Transition Costs or obtain the allowable item or services identified in this subparagraph from other sources. Transition Costs do not include monthly rental or mortgage expense; food (after the first month); regular utility charges; previously incurred debts and arrearages; and/or household appliances or items that are intended for purely diversional/recreational purposes. Transition Costs shall not exceed $4,000 for the lifetime of any Class Member. V. THE DISABILITY SERVICES SYSTEM Development of Community Capacity. Defendants shall develop and implement necessary and sufficient measures, services, supports and other resources, such as having service providers available for and able to locate affordable housing, to arrange for transition into Community-Based Settings, and to assist Class Members with accessing Community-Based Services, consistent with the choices of Class Members, to ensure that the Defendants will meet their obligations under the Decree and the Implementation Plan. Nothing in this Consent Decree shall reduce, impair or infringe on any rights or entitlements of any Class Members in any State program or in any Medicaid program. VI. EVALUATIONS AND SERVICE PLANS A. Evaluations. 1. Each Class Member is eligible for an Evaluation to determine what Community-Based Services are required for the Class Member to
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transition to a Community-Based Setting. Within 180 days following the finalization of the Implementation Plan, at least 500 Class Members then residing in a Nursing Facility shall receive an Evaluation by a Qualified Professional. 2. Within eighteen months following the finalization of the Implementation Plan, a total of at least 2,000 Class Members then residing in a Nursing Facility shall have received an Evaluation by a Qualified Professional. 3. Subject to approval of and consistent with the Cost Neutral Plan, every Class Member then residing in a Nursing Facility shall receive an Evaluation by a Qualified Professional within the time period determined as part of the development of the Cost Neutral Plan. 4. The Qualified Professionals shall inform each Class Member during the Evaluations about the existence, nature and availability of CommunityBased Settings and shall describe the Community-Based Services, Transition Costs and/or Housing Assistance that may be available to Class Members in those settings. 5. Evaluations shall be done in a timely manner so as not to delay, where applicable, the development of a Class Member's Service Plan. 6. Any Class Member who disputes a decision regarding eligibility for, or approval of, Community-Based Services, Transition Costs and/or Housing Assistance or placement in a Community-Based Setting shall, pursuant to governing law, have the right to appeal through administrative review of such decisions through Defendants' existing Fair Hearings process (as set
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Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 18 of 39 PageID #:1527
forth in 89 Ill.Adm.Code Parts 102 and 104) or as otherwise provided by law. Class Members also may avail themselves of any informal review or appeal process that currently exists. 7. Subject to approval of and consistent with the Cost Neutral Plan, beginning four years following the Approval Date, the Evaluations for every Class Member then residing in a Nursing Facility shall be conducted at least annually, except for Class Members who decline to receive Evaluations and for Class Members who have been determined by a medical doctor to have a condition such as severe dementia or other clinically significant and progressive cognitive disorders and are unlikely to improve. For those Class Members who have been offered a Community-Based Setting but have opposed moving from a Nursing Facility to a Community-Based Setting, the reasons for the Class Member's opposition shall be fully explored and appropriately addressed as part of the Class Member's annual Evaluation and as described in Section VII herein. Any Class Member who has received an Evaluation but has declined to move to a Community-Based Setting may thereafter request to be re-Evaluated for transition to a Community-Based Setting. Any such re-Evaluation must be conducted within 120 days of the request. 8. With respect to Evaluations and re-Evaluations described in this Section VI.A, any Class Member has the right to decline to take part in an Evaluation or re-Evaluation. A Class Member declining an Evaluation or
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re-Evaluation shall have the right to receive an Evaluation or reEvaluation within 120 days of making a new request. B. Service Plans. 1. Pursuant to the Evaluations and with a Class Member's input, Defendants shall develop, within 90 days after each Evaluation, Service Plans specific to each Class Member. For those Class Members whose Service Plans include transitioning to a Community-Based Setting, each Service Plan shall set forth with specificity the Community-Based Services, Transition Costs, Home Accessibility Adaptation Costs and/or Housing Assistance the Class Member needs in a Community-Based Setting, including a projected timetable to complete the transition. Each Service Plan shall be updated at least every 180 days to reflect any changes in needs and preferences ofthe Class Member, including his or her desire to move to a Community-Based Setting after declining to do so, and shall incorporate, where appropriate, services to assist in acquisition of basic activities of daily living skills and illness self-management. 2. If there has been a determination that a Class Member will be transitioning to PSH, the PSH options offered must include one or more appropriate buildings in which fewer than 25 percent of the building's units are occupied by persons known by the Defendants to have disabilities. 3. If there is a determination that a Class Member will not be transitioning to PSH or Private Residence (except for those Class Members who have
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Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 20 of 39 PageID #:1529
declined transitions), the Service Plan shall specify what services the Class Member needs that could not be provided in PSH or a Private Residence and shall describe the Community-Based Services the Class Member needs to live in another Community-Based Setting that is the most integrated setting appropriate to that Class Member's needs and preferences or shall specify what services the Class Member needs that cannot be provided in any Community-Based Setting. 4. The Service Plan shall be developed by a Qualified Professional in conjunction with the Class Member and/or his or her legal representative, if any. 5. Each Service Plan shall focus on the Class Member's personal vision, preferences, strengths and needs in home, community and work environments. C. Benchmarks for Transitions for Individuals Residing in Nursing Facilities. 1. By the end of the first year following the finalization of the Implementation Plan, Defendants will have moved to a Community-Based Setting 300 Class Members who desire to live in Community-Based Settings and who have received an Evaluation and a Service Plan. 2. By the end of the second year following the finalization of the Implementation Plan, Defendants will have moved to a Community-Based Setting 800 Class Members who desire to live in Community-Based Settings and who have received an Evaluation and a Service Plan.
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3. By the end of the thirtieth month following the finalization of the Implementation Plan, Defendants will have moved to a Community-Based Setting 1,100 Class Members who desire to live in Community-Based Settings and who have received an Evaluation and a Service Plan.
4. Not later than thirty months after the finalization of the Implementation Plan, the Defendants, Monitor and Counsel for Class Plaintiffs shall agree on a Cost Neutral Plan to move to Community-Based Settings at a reasonable pace all Class Members who desire to live in CommunityBased Settings. However, if the Defendants, Monitor and Counsel for Class Plaintiffs jointly determine, based on an analysis of the data and other information regarding the cost of moving the first 800 to 1,100 Class Members, that no remaining Class Member can be moved in a cost neutral manner, then the Parties will file a joint motion to terminate the Decree. If the Parties cannot agree that a Cost Neutral Plan is feasible, then either Party may seek appropriate guidance and relief from the Court.
5. If the Defendants, Monitor and Counsel for Class Plaintiffs are unable, for any reason, to agree on a Cost-Neutral Plan as described above at the 30th month after finalization of the Implementation Plan, Defendants and Counsel for Class Plaintiffs shall each file a proposed Cost Neutral Plan with the Court not later than 31 months. after finalization of the Implementation Plan. The Court will set appropriate schedules and proceedings to determine the Cost Neutral Plan to be effected.
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6. Subject to the approval of and consistent with the Cost Neutral Plan described above, by the end of the third year following the finalization of the Implementation Plan, Defendants shall have created a Community Transition Schedule that lists all Class Members living in Nursing Facilities as of that date who do not oppose moving to a CommunityBased Setting. Defendants shall ensure that Class Members listed on the Community Transition Schedule will move to appropriate CommunityBased Settings at a reasonable pace, with selection prioritized by the Class Member's urgency of need for Community-Based Services or placement in a Community-Based Setting, the length of time that has passed since the Class Member was placed on the Community Transition Schedule, geographical considerations and other appropriate factors. The Defendants shall identify or develop sufficient numbers of appropriate Community-Based Settings so that Class Members placed on the Community Transition Schedule will be able to move to appropriate Community-Based Settings as quickly as possible consistent with the Cost Neutral Plan.
D. Community-Based Settings and Community-Based Services. 1. Defendants shall ensure that Class Members who move to a CommunityBased Setting have access to all appropriate Community-Based Services, Transition Costs, Home Accessibility Adaptation Costs and/or Housing Assistance specified in their Service Plans, and shall take appropriate measures to keep their housing available in the event that they are placed
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in a hospital, Nursing Facility or other treatment facility for up to 60 consecutive days. 2. Defendants shall take all necessary and reasonable measures to protect Class Members from being pressured not to consider appropriate alternatives to Nursing Facilities or from being subjected to retaliation in any form by Nursing Facilities for seeking alternatives to Nursing Facilities. 3. For Class Members with Mental Illness, PSH or the Private Residence chosen by the Class Member shall be considered the most integrated Community-Based Setting appropriate except that for any Class Members with Mental Illness (i) who have been determined by a physician not affiliated with a Nursing Facility to have a condition such as severe dementia or other severe cognitive impairments requiring such a high level of staffing to assist with activities of daily living or self-care management that they cannot effectively be served in PSH or a Private Residence, (ii) who have medical needs requiring such a high level of skilled nursing care that they cannot effectively be served in PSH or a Private Residence, or (iii) who present an imminent danger to themselves or others, the Qualified Professional will determine, through the Evaluation process, the most integrated setting appropriate. Those Class Members not transitioning from Nursing Facilities into PSH or a Private Residence shall have periodic re-Evaluations with treatment objectives to prepare them for subsequent transition to the most integrated setting
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appropriate, including PSH or a Private Residence, except for Class Members who have chosen other living arrangements or have been determined by a physician not affiliated with a Nursing Facility to have a condition such as severe dementia or other clinically significant and progressive cognitive disorders and are unlikely to improve. VII. OUTREACH Defendants shall ensure that Class Members receive complete and accurate information regarding their rights to live in Community-Based Settings and/or to receive Community-Based Services, Transition Costs, Home Accessibility Adaptation Costs and/or Housing Assistance, and the available options and opportunities for doing so. The Implementation Plan shall describe the method by which such information will be disseminated, the process by which Class Members may request services, and the manner in which Defendants will maintain current records of these requests. Defendants shall also ensure that the Qualified Professionals conducting the Evaluations provide outreach with appropriate frequency to Class Members who express concerns about leaving the Nursing Facilities. The Implementation Plan shall describe methods for providing outreach to Class Members. All costs for outreach shall be borne by Defendants. VIII. IMPLEMENTATION A. Overview and Contents of the Implementation Plan. Defendants, with the input of the Monitor and counsel for Plaintiffs, shall create and implement an Implementation Plan to accomplish the obligations and objectives set forth in the Decree. The Implementation Plan must, at a minimum:

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1. Establish specific tasks, timetables, goals, programs, plans, strategies and protocols to assure that Defendants fulfill all of the requirements of the Decree;
2. Describe the hiring, training and supervision of the personnel necessary to implement the Decree;
3. Describe the activities required to support the development and availability of Community-Based Services, Transition Costs, Home Accessibility Adaptation Costs and/or Housing Assistance and Community-Based Settings, including inter-agency agreements, requests for proposals, mechanisms for Housing Assistance, and other actions necessary to implement the Decree;
4. Identify, based on information known at the time the Implementation Plan is finalized and updated on a regular basis, any services or supports anticipated or required in Service Plans developed pursuant to the Decree that are not currently available in the appropriate quantity, quality or geographic location, and might be required to meet the obligations of the Decree;
5. Identify any necessary changes to regulations that govern Nursing Facilities in order to strengthen and clarify requirements for services to Nursing Facility residents and to provide for effective oversight and enforcement of all applicable regulations and laws; and
6. Describe the methods by which Defendants shall ensure compliance with their obligations of this Decree.
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Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 26 of 39 PageID #:1535

B. Within 180 days of Approval ofthe Decree, Defendants shall provide the Monitor and Counsel for Class Plaintiffs with a draft Implementation Plan. The Monitor and Counsel for Class Plaintiffs shall participate in developing and finalizing the Implementation Plan, which shall be finalized not later than nine months following the Approval Date. If, after negotiation and comment, the Monitor or Counsel for Class Plaintiffs disagrees with the Defendants' proposed Implementation Plan, the Court shall resolve all disputes and finalize the Implementation Plan.
C. The Implementation Plan shall be updated and amended at least annually. The Monitor and Counsel for Class Plaintiffs shall review and comment upon any proposed updates or amendments at least 60 days before the effective date of any updates or amendments. In the event the Monitor or Counsel for Class Plaintiffs disagree with the Defendants' proposed updates or amendments, the Monitor or Counsel for Class Plaintiffs shall state all objections in writing at least 30 days before the effective date of any updates or amendments. In the event that Defendants, the Monitor and Counsel for Class Plaintiffs do not agree on updates and amendments, the Court shall resolve any and all disputes before any updates or amendments become effective.
D. The Implementation Plan, and all amendments or updates thereto, shall be filed with the Court and shall be incorporated into and become enforceable as part of the Decree.
E. In the event that any Nursing Facility seeks to discharge any Class Member before a Community-Based Setting is available, including, but not limited to,
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circumstances in which a Nursing Facility owner decides to close the Nursing Facility, Defendants shall take appropriate and necessary actions to ensure that such Class Members are not left without appropriate housing options based on their preferences, strengths and needs. IX. MONITORING AND COMPLIANCE A. Appointment of a Monitor. The Court will appoint an independent and impartial Monitor who is knowledgeable concerning the management and oversight of programs, including waiver programs, that serve Individuals with Mental Illness and Physical Disabilities of all ages. The Parties shall attempt to agree on the selection of a Monitor to propose to the Court. If the Parties are unable to reach agreement, each party will nominate at least one person to serve as Monitor, and the Court will select the Monitor. Within 21 days of Approval of the Decree, the Parties shall submit their joint recommendation or separate nominations for a Monitor to the Court. In the event the Monitor resigns or otherwise becomes unavailable, the process described above will be used to select a replacement. B. Duties and Reporting. The Monitor's duties include evaluating Defendants' compliance with the Decree, identifying actual and potential areas of non-compliance with the Decree, mediating disputes between the Parties, and bringing issues and recommendations for their resolution to the Court. The Monitor will file a written report at least annually with the Court and the Parties regarding compliance with the Decree. Such reports shall include the information necessary, in the Monitor's
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Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 28 of 39 PageID #:1537
professional judgment, for the Court and Class Counsel to evaluate Defendants' compliance or non-compliance with the terms of the Decree. Reports of the Monitor shall be filed with the Court and served on all Parties. The Monitor may redact any portions of the Report necessary to make certain confidential matters and information are not disclosed. C. Review and Evaluation of Data and Information. The Monitor shall review and evaluate Defendants' compliance with the terms of the Decree. Not less than every six months, starting no later than three months after finalization of the Implementation Plan, Defendants shall provide the Monitor and Plaintiffs with a report containing data and information sufficient to evaluate Defendants' compliance with the Decree and Defendants' progress towards achieving compliance, with the Parties and Monitor agreeing in advance of the first report on the data and information that must be included in such report. Defendants will not refuse any request by the Monitor for documents or other information that are reasonably related to the Monitor's review and evaluation of Defendants' compliance with the Decree, and Defendants will, upon reasonable notice, permit confidential interviews of Defendants' staff or consultants, except their attorneys. The Monitor will have access to all Class Members and their records and files, as well as to those service providers, facilities, buildings and premises that serve, or are otherwise pertinent to, Class Members, where such access is reasonably related to the Monitor's review and evaluation of Defendants' compliance with the Decree. The Defendants shall comply with Class Counsel's requests for information that are reasonably related
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to Defendants' compliance with the Decree, including without limitation requests for records and other relevant documents pertinent to implementation of the Decree or to Class Members. Class Counsel also shall be permitted to review the information provided to the Monitor. All information provided to the Monitor and/or Class Counsel pursuant to the Decree shall be provided subject to the Protective Order and any applicable HIPAA requirements. D. Compliance. In the event the Monitor finds Defendants not in compliance with the Decree, the Monitor shall promptly meet and confer with the Parties in an effort to agree on steps necessary to achieve compliance. In the event that Class Counsel believe that Defendants are not complying with the terms of the Decree, Class Counsel shall notify the Monitor and Defendants of Defendants' potential non-compliance. The Monitor then shall review Plaintiffs' claims of actual or potential noncompliance and, as the Monitor deems appropriate in his or her professional judgment, meet and confer with Defendants and Plaintiffs in an effort to agree on steps necessary to achieve compliance with the Decree. If the Monitor and Parties agree, such steps shall be memorialized in writing and incorporated into, and become enforceable as part of, the Decree. In the event that the Monitor is unable to reach agreement with Defendants and Plaintiffs, the Monitor or either Party may seek appropriate relief from the Court. In the event that Plaintiffs believe that Defendants are not in compliance with the Decree and that the Monitor has not requested appropriate relief from the Court, Plaintiffs may seek
-26-

Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 30 of 39 PageID #:1539
relief from the Court. The Monitor shall not communicate with the Court without advance notice to the Parties. E. Compensation of the Monitor. The Monitor may hire staff as necessary to fulfill his or her duties under the Decree. Defendants shall compensate the Monitor and his or her staff at their usual and customary rates, so long as the rates are reasonable. Defendants shall reimburse all reasonable expenses of the Monitor and the Monitor's staff, consistent with the guidelines set forth in the "Governor's Travel Control Board Travel Guide for State Employees." After negotiation, comment and a good faith attempt to resolve all differences, Defendants may seek relief from the Court if Defendants believe that any of the Monitor's charges is inappropriate or unreasonable. X. CLASS REPRESENTATIVES A. Within 60 days of Approval of the Decree, Defendants shall offer each of the Class Representatives the opportunity to receive appropriate services in the most integrated setting appropriate to his or her needs. Provision of services to the Class Representatives pursuant to this paragraph shall not be used to determine any other individual's eligibility for services under the terms of the Decree. XI. ATTORNEYS' FEES AND COSTS A. In full settlement of all attorneys' fees and costs incurred in connection with the litigation, Defendants shall pay $1,200,000 to Class Counsel in three equal payments. Defendants shall make the first payment in State Fiscal Year 2012 (which begins July 1, 2011), the second payment in State Fiscal Year 2013
-27-

Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 31 of 39 PageID #:1540
(which begins July 1, 2012), and the third payment in State Fiscal Year 2014 (which begins July 1, 2013). All ofthe payments shall be distributed to Class Counsel in the manner set forth in written instructions provided by Class Counsel. Furthermore, such amounts shall be set forth in one or more Judgment Orders to be entered by the Court within 14 days after Approval of the Decree. Defendants shall complete and submit all paperwork necessary for the first payment, plus applicable statutory post-judgment interest, within (a) five business days after expiration of the time to appeal the Decree without the filing of a Notice of Appeal, or after the issuance of the mandate by the highest reviewing court, whichever is later, or (b) April1, 2012, whichever is later. Defendants shall complete and submit all paperwork necessary for the second payment no later than July 1, 2012 and the paperwork necessary for the third payment, no later than July 1, 2013.
XII. MISCELLANEOUS PROVISIONS A. Approval of the Decree. Approval of this Decree shall be deemed to occur on the date the Court enters the Decree. B. Cost ofNotices. The cost of all notices hereunder or otherwise ordered by the Court shall be borne by Defendants. C. Signatories. Each undersigned representative of a Defendant to this litigation and the Attorney General for the State of Illinois certifies that he or she is authorized to enter into the terms and conditions of the Decree and to execute and bind legally such Defendant to this document. Each undersigned representative of Plaintiffs certifies that he or she is authorized to enter into the terms and -28-

'

Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 32 of 39 PageID #:1541

conditions of the Decree and to execute and bind legally the Plaintiffs to this document. D. Unless otherwise ordered by the Court, this Decree shall terminate at the earliest of the following: (1) as specified in the Parties' joint motion to terminate the Decree, as provided in Section VI.C.4; or (2) as specified in the Cost Neutral Plan approved by the Court.
SO ORDERED THIS -o'2-J'~AY O, F~~' 2011.

- 29-

.,

Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 33 of 39 PageID #:1542

EACH UNDERSIGNED PARTY enters into this Consent Decree in the matter of Colbert v. Quinn, Case No. 07-4737, pending in the United States District Court for the Northern District of illinois, Eastern Division. ·
FOR THE CLASS PLAINTIFFS:
Date: 11~3 ~sf: ~~) <2,0{)
AS ATTORNEYS FOR CLASS PLAINTIFFS:
Date: A'-<...j v..S?t d..Ce >2-o 1l.
FOR DEFENDANT, GOVERNOR OF ILLINOIS:
Date:_ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - -
FOR DEFENDANT, SECRETARY OF ILLINOIS DEPARTMENT OF HUMAN SERVICES:
Date:- - - - - - - - - - - - - - - -
FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT ON AGING:
Date:_ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - -
FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES:
- Date: --------------
FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF DEPARTMENT OF PUBLIC HEALTH:
Date:_ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - -
AS ATTORNEY FOR DEFENDANTS:
- Date: -----------------

•

Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 34 of 39 PageID #:1543

EACH UNDERSIGNED PARTY enters into this Consent Colbert v. Quinn, Case No. 07-4737, pending in the United States District ofillinois, Eastern Division.

Decree in the matter of District Court for the Northern

·

FOR THE CLASS PLAINTIFFS: Date:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

AS ATTORNEYS FOR CLASS PLAINTIFFS:
Date:._ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - -
.FOR DEFENDANT, GOVERNOR OF ILLINOIS:
Date: ~ Z.~ '2--ol/
FOR DEFENDANT, SECRETARY OF ILLINOIS DEPARTMENT OF HUMAN SERVICES: Date:._ _..:__._ _ _ _ _ _ _ _ - - - - - - - - - - - - - - -
FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT ON AGING: Date:._ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - -
FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF HEALTHCAREAND FAMILY SERVICES:
Date:_ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - - -
FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF DEPARTMENT OF PUBLIC HEALTH:
Date:·---------------------
AS ATTORNEY FOR DEFENDANTS: Date:._ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - -

Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 35 of 39 PageID #:1544 •

EACH UNDERSIGNED PARTY enters into this Consent Decree in the matter of Colbert v. Quinn; Case No. 07-4737, pending in the United States District Court for the Northern District of lllinois, Eastern Division.

FOR THE CLASS PLAINTIF£:S: Date:._ _ _ _ _ _ _ _ _ _ _ _ ~=------------

, AS ATTORNEYS FOR CLASS PLAINTIFFS:

Date:_ _ _ _ _ _ _ _ _ _ _

-----~:---------
'

•

FOR DEFENDANT,,GOVERNOR OF ILLINOIS:

Date:_ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - -

FOR DEFENDANT, SECRETARY OF

ILLINOIS DEPARTMENT OF HUMAN

SERVICES:

.

Date:.cf'~~/£~-·_·._.......::::;g....;.f...:--f-_1/_ _ __

/ 0 J~

FOR DEFENDANT, DIRECTOR-OF

~LINOIS DEPARTMENT ON AGING:

Date:._ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - -

FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF. HEALTHC:ARE AND FAMILY SERVICES:
Dare:~-----~-------------------
FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF DEPARTMENT OF PUBLIC HEALTH:

Date:-------------------------AS ATTORNEY FOR DEFENDANTS: Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - -

,.

Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 36 of 39 PageID #:1545

EACH UNDERSIGNED PARTY enters into this Consent Decree in the matter of . Colbert v. Quinn, Case No. 07-4737, pending in the United States District Court for the Northern District oflllinois, Eastern Division.
FOR THE CLASS PLAINTIFFS:
Date: ----------------------
AS ATTORNEYS FOR CLASS PLAJNTIFFS:
Date: ----------------------
FOR DEFENDANT, GOVERNOR OF ILLINOIS:
Date::.__________________ - - - - - - - - - - - - - -
FOR DEFENDANT, SECRETARY OF ILLINOIS DEPARTMENT OF HUMAN SERVICES:
Date:_ _ _ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - - - - -
FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT ON AGING: Date: ~ :Z.,?-; U>l!
FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF HEALTIICARE AND FAMILY SERVICES:
Dme:.________~--~-------------------------FOR DEFENDANT, DIRECTOR OF ILLINOIS DBPARTMENT OF . DEPARTMENT OF PUBLIC HEALTH:
Date:_ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - - -
AS ATTORNEY FOR DEFENDANTS:
Date:_______________ - - - - - - - - - - - - - - - -

Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 37 of 39 PageID #:1546
EACH UNDERSIGNED PARTY enters into this Consent Decree in the matter of Colbert v. Quinn, Case No. f174737, pending in the United States District Court for the Northern District of illinois, Eastern Division. FOR THE CLASS PLAINTIFFS: Date:,_ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - AS ATTORNEYS FOR CLASS PLAINTIFFS: Date:_ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - FOR DEFENDANT, GOVERNOR OF ll..LINOIS: Date:_ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - FOR DEFENDANT, SECRETARY OF ll..LINOIS DEPARTMENT OF HUMAN SERVICES: Date:_ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - FOR DEFENDANT, DIRECTOR OF n..LINOIS DEPARTMENT ON AGING: Date:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF HEALTHCARE AND FAMILY
SERVICES: Date: August 24, 2011 FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF DEPARTMENT OF PUBLIC HEALTH: Date:_ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - AS ATTORNEY FOR DEFENDANTS: Date:_ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - -

1''
"'

Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 38 of 39 PageID #:1547

EACH UNDERSIGNED PARTY enters into this· Consent Decree in the matter of Colbert v. Quinn, Case No. 07-4737, pending in the United States District Court for the Northern District ofillinois,-Eastern Division.

FOR THE CLASS PLAINTIFFS:

Date:_ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - -

AS ATTORNEYS FOR CLASS PLAINTIFFS:

Date:._ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - -

FOR DEFENDANT, GOVERNOR OF ILLINOIS:

Date:._ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - -

FOR DEFENDANT, SECRETARY OF . ILLINOIS DEPARTMENT OF HUMAN SERVICES:

Date:._ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - -

FOR DEFENDANT, DIRECTOR OF · ILLINOIS DEPARTMENT ON AGING:

Date:._ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - -

FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES:

Date:_ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - -

FOR DEFENDANT, DIRECTOR OF

ILLINOIS DEPARTMENT OF

r4Jt tb.1..l. ftl ~ DJlPAR~OFPUBLICHEALTH: ~

Date:

<

~tf!!Jtl

A~ ATIORNEY FOR DEFENDANTS:
Pme:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___

Case: 1:07-cv-04737 Document #: 210 Filed: 12/21/11 Page 39 of 39 PageID #:1548

EACH UNDERSIGNED PARTY enters Colbert v. Quinn, Case No. 07-4737, pending in District of Illinois, Eastern Division.

into this Consent
the United States

Decree in the matter of
District Court for the Northern
·

FOR THE CLASS PLAINTIFFS:

Date: ----------------------
AS AITORNEYS FOR CLASS PLAINTIFFS: Date:_ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - - -

FOR DEFENDANT, GOVERNOR OF ILLINOIS:

- Date: ----------------
FOR DEFENDANT, SECRETARY OF ILLINOIS DEPARTMENT OF HUMAN SERVICES:
Date:_-.,-_ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - - -

FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT ON AGING:
Date:_ _ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - -

FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES:
Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - - -

FOR DEFENDANT, DIRECTOR OF ILLINOIS DEPARTMENT OF DEPARTMENT OF PUBLIC'HEALTH:
Date:_ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - - - -

/l AS ATTORNEY FOR DEFENDANTS:
Date: ":Ju~t 2-bl'Z:..-o I )
I

 </s> Case: 1:07-cv-04737 Document #: 290 Filed: 11/16/16 Page 1 of 9 PageID #:2148

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LENIL COLBERT, et al. , Plaintiffs,
v.
BRUCE RAUNER, et al. , Defendants.

)

)

)

)

No. 07 C 4737

)

)

Judge Joan Humphrey Lefkow

)

Magistrate Judge Maria Valdez

)

)

)

ORDER APPROVING COST NEUTRAL PLAN

Case: 1:07-cv-04737 Document #: 290 Filed: 11/16/16 Page 2 of 9 PageID #:2149
This matter came on for hearing before the Court on the Parties' cross-motions to enter a Cost Neutral Plan to supplement and amend the December 2011 Consent Decree, as amended. The Court has reviewed the submissions made by the Parties, and heard oral argument from the Parties on September 29, 2016. Being fully advised in the premises, the Court hereby approves the following Cost Neutral Plan:
INTRODUCTION AND BACKGROUND Plaintiffs,1 a class of Illinois residents with disabilities receiving Medicaid benefits and living in Nursing Facilities in Cook County, Illinois, filed this lawsuit on August 22, 2007, seeking declaratory and injunctive relief to redress alleged violations of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-32, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and the Social Security Act, 42 U.S.C. §§ 1396-1396v (SSA). Plaintiffs alleged that they were unnecessarily segregated and institutionalized in Nursing Facilities and forced to live in conditions in violation of the ADA and the Rehabilitation Act, which require Illinois to administer services in the most integrated appropriate setting. Plaintiffs alleged that Defendants denied them the opportunity to live in appropriate integrated settings where they could lead more independent and more productive lives in their own communities. Plaintiffs sought injuncti ve relief requiring Defendants: (1) to inform Plaintiffs as to their eligibility for Community-Based Services and their choice of such services; (2) to provide comprehensive evaluations to determine each Plaintiffs eligibility for Community-Based Services, both prior to and after admission to Nursing Facilities; and (3) to provide, as appropriate, Plaintiffs with services and medical and other supports in CommunityBased Settings and to refrain from providing services only in institutional settings. Defendants
Capitalized terms set forth herein are defined in Section IV of the Consent Decree. All other terms will have the meaning ordinarily attributed to them.

Case: 1:07-cv-04737 Document #: 290 Filed: 11/16/16 Page 3 of 9 PageID #:2150
denied liability and specifically denied that they violated the ADA, the Rehabilitation Act, or the SSA.
The Parties reached a settlement and filed a Consent Decree on August 29,2011, that the Court approved on December 21, 20 11 , after appropriate notice and a hearing. The Parties have operated under that Consent Decree, as amended on July 24, 2014, and on December 1, 2015, and, as required by the amended Consent Decree, have negotiated for several months in an attempt to agree on a joint Cost Neutral Plan to be filed with the Court. The Parties relied on Berkeley Research Group, LLC (BRG), to perform the collection of costs data and information and the analysis of the costs incurred by the State of Illinois for certain Class Members to live in Nursing Facilities and compared those costs to the costs to the State of Illinois for those same Class Members to live in Community-Based Settings. (The BRG Report and Supplements are attached as Exhibit A.) BRG performed all of its work pro bono. BRG's analysis shows that the State's expenditures, with amortization of one-time costs and allocation of non-Class Member specific costs over a 10 year period, are on average over 35 percent less for the Class Members transitioned to and living in Community-Based Settings as compared to the costs to have them continue living in Nursing Facilities. The analysis also concluded that those same cost savings should be expected for other Class Members who will transition from Nursing Facilities to Community-Based Settings in the future. BRG's analysis further shows that the State's total expenditures for all costs related to transitioning Class Members and to operate and administer the systems related to Community-Based Services as compared to continuing to have Class Members living in Nursing Facilities, on a cash basis, are approximately 10 percent higher in the first 12 months after transition and are approximately 30 percent lower in the second year after transition and in every year thereafter. This means that, on a cash basis, the State saves money somewhere in the second year a Class Member is allowed to live where he or she desires. The
- 2-

Case: 1:07-cv-04737 Document #: 290 Filed: 11/16/16 Page 4 of 9 PageID #:2151
Parties agree that approximately 890 Class Members have been living in Community-Based Settings fo r at least one year, and that the State of Illinois has realized a reduction in expenditures due to the Consent Decree and will continue to see a reduction in expenditures as more Class Members are transitioned.
COST NEUTRAL PLAN A. Master Class Member List. By November 10, 2016, Defendants shall create a list of all Class Members living in Nursing Facilities as of September 30,2016, and shall update that list at least annually during the life of the Decree during the time period the Consent Decree, as amended and supplemented, and the Cost Neutral Plan is in effect. B. Outreach. Defendants shall create and perform the outreach activities required to comply with the requirements of this Plan and the Consent Decree to achieve the transitions required. Defendants will inform all Class Members of their rights under the Consent Decree and this Plan. Details of the Defendants' specific outreach activities shall be contained in the Implementation Plan to be developed as outlined in paragraph H. Defendants shall also ensure that the Qualified Professionals conducting the Evaluations provide outreach with appropriate frequency to Class Members who express concerns about leaving Nursing Facilities, and that, as has previously been recommended by the Monitor, the Peer Mentor program receives appropriate support. C. Transition Activity Schedule. By December 30, 2016, Defendants shall create a Transition Activity Schedule (Schedule), including Class Members from the November I0, 2016, list that includes Class Members who do not oppose moving to a Community-Based Setting. The initial Schedule shall include at least 150 Class Members (excluding Class Members not yet transitioned but who are in the housing queue on December 30, 20 16). At least every six months following the creation of the Schedule, Defendants, through the
-3-

Case: 1:07-cv-04737 Document #: 290 Filed: 11/16/16 Page 5 of 9 PageID #:2152
outreach efforts described in Paragraph B and in the Implementation Plan set forth in Paragraph H, shall identifY and add to the Schedule at least 1,000 Class Members who do not oppose moving to a Community-Based Setting. Defendants shall ensure that Class Members on the Schedule will be moved to appropriate Community-Based Settings according to the time frames detailed in Paragraph F herein. Placements will be prioritized based on their urgency of need for Community-Based Services or placement in a Community-Based Setting, the length of time that the Class Member has resided in a Nursing Facility, geographical considerations, and other appropriate factors. The Defendants shall identifY or develop sufficient and appropriate Community-Based Settings and services so that Class Members placed on the Schedule will be able to move to appropriate Community-Based Settings in the time frames stated in this plan, or at a reasonable pace to be determined as set forth in paragraph E below. D. Evaluations. Defendants shall complete at least 1000 Evaluations of Class Members on the Schedule by June 30, 2017, and thereafter continue to complete a sufficient number of Evaluations in a timely manner in order to achieve the transitions required under paragraph F. For any Class Member who remains on the Schedule a year after their Evaluation, Defendants shall update the Evaluation at least annually, except as provided in Section VI.A.7 and VI.A.8 of the Decree. These updates shall not be included in calculating the 1000 minimum required above. E. Service Plans. Qualified Professionals shall develop Service Plans, as provided in the Consent Decree, for Class Members with Evaluations indicating they are able to move to Community-Based Settings. These Service Plans shall be completed within three months of the Class Members' Evaluations.
- 4-

Case: 1:07-cv-04737 Document #: 290 Filed: 11/16/16 Page 6 of 9 PageID #:2153
F. Transitions. Until December 31, 2016, Defendants will continue to operate under the current Implementation Plan and will transition a sufficient number of Class Members to Community-Based Settings to comply with the Order Granting Agreed Motion to Amend Consent Decree dated December 1, 2015, Paragraph C.3. Defendants will transition 250 additional Class Members to appropriate Community-Based Settings by June 30, 2017, and 300 additional Class Members by December 31, 2017. During the second quarter of calendar 2017, the Parties and the Monitor shall discuss the proposals made by the consultant pursuant to his/her review outlined in paragraph I. Benchmarks for transitions for calendar 2018 and 2019 shall be determined by the Parties in conjunction with the Monitor or the Court if the Parties are unable to agree based on the Monitor' s findings and systemic enhancements made as a result thereof. Prior to December 31, 2018, the Parties and the Monitor shall agree upon a reasonable pace for moving all Class Members determined appropriate for transition to Community-Based Settings beginning in January 20 19, and such pace shall be presented in an addendum to this Plan to be filed with the Court. If the Parties and the Monitor cannot agree about what constitutes a reasonable pace, the issue will be presented to the Court for resolution. G. Resources. The Defendants' responsibility to continue development of and increasing community capacity necessary and appropriate to comply with the Consent Decree and this Plan shall continue under this Plan and shall incorporate and respond to findings by the Monitor and the consultant pursuant to paragraph I herein. H. Implementation Plan. By November 16, 2016, Defendants shall send to Class Counsel and the Comt Monitor a proposed, updated Implementation Plan that will include detailed plans and programs to achieve compliance with this Cost Neutral Plan and the Consent Decree. The updated Implementation Plan will detail Defendants' plan to increase the pace
-5-

Case: 1:07-cv-04737 Document #: 290 Filed: 11/16/16 Page 7 of 9 PageID #:2154
of transitions from the benchmarks required by the Consent Decree to those in this Cost Neutral Plan. Detailed plans will be set out to achieve the requirement to reach all Class Members. Specific targets for the pace of Evaluations, development of Service Plans, development of additional Community-Based Services and Settings, and all other actions and activities necessary to comply with this Cost Neutral Plan and the Consent Decree will be detailed in the updated Implementation Plan. The provisions of the Consent Decree regarding review and approval of proposed Implementation Plan updates remain in effect. This updated Implementation Plan shall be finalized by the Parties and the Monitor and filed with the Court by December 30, 2016. I. Community Capacity-Building. The Monitor, at the State's expense, with the input of the Defendants and Class Counsel, will retain an appropriate independent consultant (who will be solely chosen by, directly supervised by, report to, be directed by and solely responsible to the Monitor) to advise the Monitor on how the Defendants can develop Community Capacity sufficient to transition the required number of Class Members under the Consent Decree and the Cost Neutral Plan. The Defendants, within 30 days of the entry of this Cost Neutral Plan, shall take any and all necessary steps to amend the contract of the Monitor to allow him to hire, retain and pay the consultant. The consultant will determine the current barriers to the Defendants' development of Community Capacity required to achieve compliance with the Consent Decree and the Cost Neutral Plan and to transition greater numbers of Class Members to Community-Based Settings in the future. Within six months of the Court' s approval of this Cost Neutral Plan Order, the Monitor will submit a proposal to the Defendants and Class Counsel which includes recommendations for addressing barriers to development of Community Capacity and recommendations for substantially expanding Community Capacity in order to transition Class Members as required by the Consent Decree
-6-

Case: 1:07-cv-04737 Document #: 290 Filed: 11/16/16 Page 8 of 9 PageID #:2155
and the Cost Neutral Plan. The Parties and the Monitor shall discuss the consultant' s findings and incorporate the Monitor's recommendations based on those findings into or as an Amendment to the updated Implementation Plan. J. Future Actions. All provisions of the Consent Decree and the current Implementation Plan not specifically changed or modified by this Cost Neutral Plan or the updated Implementation Plan described in paragraph H, shall remain in full force and effect. The Parties and the Monitor, after filing their reports, shall meet with the Court at least annually to discuss and report on their progress. K. Termination. Until the Consent Decree is terminated, the Court shall retain exclusive jurisdiction to fully oversee, supervise, modify and enforce the terms of the Consent Decree, the current and updated Implementation Plan and this Cost Neutral Plan. Pursuant to Section XII.D of the Consent Decree, the Parties, jointly or separately, may request termination of the monitoring process described in Section XIII of the Consent Decree, the Consent Decree, the updated Implementation Plan and this Cost Neutral Plan at any time after December 31 , 2019, if the Monitor agrees that Defendants have substantially complied with the terms of the Consent Decree, the Implementation Plan and this Cost Neutral Plan. Defendants shall notify Class Counsel in writing if they intend to seek termination of the Consent Decree (Termination Request). Class Counsel shall have 120 days from receipt of the Termination Request to conduct reasonable discovery concerning issues relevant to the determination of compliance. If Class Counsel oppose the Termination Request, Class Counsel may file a response within 120 days from the date ofreceipt of all information reasonably requested from Defendants in the conduct of discovery. The Court may grant Defendants' Termination Request if the Court finds that Defendants have substantially complied with the terms of the Consent Decree, and the Court determines that Defendants have implemented and are
-7-

Case: 1:07-cv-04737 Document #: 290 Filed: 11/16/16 Page 9 of 9 PageID #:2156

maintaining a system that complies with the Consent Decree, the Implementation Plan and this Cost Neutral Plan. The Consent Decree, the Implementation Plan and this Cost Neutral Plan shall remain in effect, and the Court shall retain its jurisdiction over the Consent Decree, the Implementation Plan and this Cost Neutral Plan, until a final order is entered granting a Termination Request and all appellate rights have been exhausted.

@V, SO ORDERED THIS !i1fJ._ DAY OF

2016.

NOV 1 6 2016

-8-

 </s> Case: 1:07-cv-04737 Document #: 324 Filed: 04/05/18 Page 1 of 8 PageID #:2777

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LENIL COLBERT, et al., Plaintiffs, v.
BRUCE RAUNER, et al., Defendants.

) ) ) ) No. 07 C 4737 ) ) Judge Joan Humphrey Lefkow ) Magistrate Judge Maria Valdez ) ) )

UPDATED COST NEUTRAL PLAN

This matter came on for hearing before the court on a status hearing March 8, 2018.

Being fully advised, the court hereby amends and restates the Cost Neutral Plan:

INTRODUCTION AND BACKGROUND Plaintiffs,1 a class of Illinois residents with disabilities receiving Medicaid benefits and

living in Nursing Facilities in Cook County, Illinois, filed this lawsuit on August 22, 2007,

seeking declaratory and injunctive relief to redress alleged violations of Title II of the Americans

with Disabilities Act (ADA), 42 U.S.C. §§ 12131-32, Section 504 of the Rehabilitation Act, 29

U.S.C. § 794(a), and the Social Security Act, 42 U.S.C. §§ 1396-1396v (SSA). Plaintiffs alleged

that they were unnecessarily segregated and institutionalized in Nursing Facilities and forced to

live in conditions in violation of the ADA and the Rehabilitation Act, which require Illinois to

administer services in the most integrated appropriate setting.

1Capitalized terms set forth herein are defined in Section IV of the Consent Decree. All other terms will have the meaning ordinarily attributed to them.

Case: 1:07-cv-04737 Document #: 324 Filed: 04/05/18 Page 2 of 8 PageID #:2778
Plaintiffs alleged that Defendants denied them the opportunity to live in appropriate integrated settings where they could lead more independent and more productive lives in their own communities. Plaintiffs sought injunctive relief requiring Defendants: (1) to inform Plaintiffs as to their eligibility for Community-Based Services and their choice of such services; (2) to provide comprehensive evaluations to determine each Plaintiff’s eligibility for Community-Based Services, both prior to and after admission to Nursing Facilities; and (3) to provide, as appropriate, Plaintiffs with services and medical and other supports in CommunityBased Settings and to refrain from providing services only in institutional settings. Defendants denied liability and specifically denied that they violated the ADA, the Rehabilitation Act, or the SSA.
The Parties reached a settlement and filed a Consent Decree on August 29, 2011, that the Court approved on December 21, 2011, after appropriate notice and a hearing. The Parties have operated under that Consent Decree, as amended on July 24, 2014, on December 1, 2015, and on November 16, 2016. As required by the amended Consent Decree, the Parties meet regularly in attempts to agree on ways and manners to comply with the Amended Consent Decree. The Parties relied on Berkeley Research Group, LLC (BRG), to perform the collection of costs data and information and the analysis of the costs incurred by the State of Illinois for certain Class Members to live in Nursing Facilities and compared those costs to the costs to the State of Illinois for those same Class Members to live in Community-Based Settings. BRG performed all of its work pro bono. BRG’s analysis shows that the State’s expenditures, with amortization of one-time costs and allocation of non-Class Member specific costs over a 10 year period, are on average over 35 percent less for the Class Members transitioned to and living in CommunityBased Settings as compared to the costs to have them continue living in Nursing Facilities. The
2

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analysis also concluded that those same cost savings should be expected for other Class Members who will transition from Nursing Facilities to Community-Based Settings in the future.
BRG’s analysis further shows that the State’s total expenditures for all costs related to transitioning Class Members and to operate and administer the systems related to CommunityBased Services as compared to continuing to have Class Members living in Nursing Facilities, on a cash basis, are approximately 10 percent higher in the first 12 months after transition and are approximately 30 percent lower in the second year after transition and in every year thereafter. This means that, on a cash basis, the State saves money somewhere in the second year a Class Member is allowed to live where he or she desires. The Parties agree that approximately 1500 Class Members have been living in Community-Based Settings for at least one year, and that the State of Illinois has realized a reduction in expenditures due to the Consent Decree and will continue to see a reduction in expenditures as more Class Members are transitioned.
COST NEUTRAL PLAN A. Master Class Member List. By April 15, 2018, Defendants shall create a list of all Class Members living in Nursing Facilities as of December 31, 2017, and Defendants shall continue to update that list at least annually while the Consent Decree, as amended and supplemented, and this Updated Cost Neutral Plan are in effect. B. Outreach. Defendants shall create and perform the outreach activities required to comply with the requirements of this Plan and the Consent Decree to achieve the transitions required. Defendants will inform all Class Members of their rights under the Consent Decree and this Plan. Details of the Defendants’ specific outreach activities shall be contained in the Implementation Plan to be developed as outlined in paragraph H. Defendants shall also ensure that the Qualified Professionals conducting the Evaluations provide outreach with appropriate frequency to Class
3

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Members who express concerns about leaving Nursing Facilities, and that, as has previously been recommended by the Monitor, the Peer Mentor program receives appropriate support. C. Transition Activity Schedule. By April 22, 2018, Defendants shall create a Transition Activity Schedule (Schedule), including Class Members on the April 15, 2018 Master Class Member List, that includes Class Members who do not oppose moving to a Community-Based Setting. The initial Schedule shall include at least 300 Class Members (excluding Class Members not yet transitioned but who are in the housing queue on March 1, 2018). At least every six months following the creation of the Schedule, Defendants, through the outreach efforts described in Paragraph B and in the Implementation Plan set forth in Paragraph H, shall identify and add to the Schedule at least 1,000 Class Members who do not oppose moving to a Community-Based Setting. Defendants shall ensure that Class Members on the Schedule will be moved to appropriate Community-Based Settings according to the time frames detailed in Paragraph F herein. Placements will be prioritized based on their urgency of need for Community-Based Services or placement in a Community-Based Setting, the length of time that the Class Member has resided in a Nursing Facility, geographical considerations, and other appropriate factors. The Defendants shall identify or develop sufficient and appropriate Community-Based Settings and services so that Class Members placed on the Schedule will be able to move to appropriate Community-Based Settings in the time frames stated in this plan, or at a reasonable pace to be determined as set forth in paragraph F below. D. Evaluations. Defendants shall complete at least 1,000 Evaluations of Class Members on the Schedule between March 1 and June 30, 2017, and thereafter continue to complete a sufficient number of Evaluations in a timely manner in order to achieve the transitions required under paragraph F. For any Class Member who remains on the Schedule a year after their Evaluation, Defendants shall update the Evaluation at least annually, except as provided in Section VI.A.7
4

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and VI.A.8 of the Decree. These updates shall not be included in calculating the 1,000 minimum required above. E. Service Plans. Qualified Professionals shall develop Service Plans, as provided in the Consent Decree, for Class Members with Evaluations indicating they are able to move to Community-Based Settings. These Service Plans shall be completed within three months of the Class Members’ Evaluations. F. Transitions. Until June 30, 2018, Defendants will continue to operate under the current Implementation Plan and will transition a sufficient number of Class Members to CommunityBased Settings to comply with the Order Granting Agreed Motion to Amend Consent Decree dated December 1, 2015, Paragraph C.3. Defendants will transition 300 additional Class Members to appropriate Community-Based Settings between January 1 and June 30, 2018 (second half of FY2018), 400 additional Class Members by December 31, 2018 (first half of FY2019), an additional 450 Class Members by June 30, 2019 (second half of FY2019), and an additional 450 Class Members by December 31, 2019 (first half of FY2020). During the fourth quarter of calendar 2018, the Parties and the Monitor shall discuss the proposals made by the consultant and the Court Monitor pursuant to paragraph I. Benchmarks for transitions for the remainder of FY2020 and FY2021 shall be determined by the Parties in conjunction with the Monitor or the Court if the Parties are unable to agree based on the Monitor’s findings and systemic enhancements made as a result thereof. Prior to December 31, 2020, the Parties and the Monitor shall agree upon a reasonable pace for moving all Class Members determined appropriate for transition to Community-Based Settings beginning in January 2021, and such pace shall be presented in an addendum to this Plan to be filed with the Court. If the Parties and the Monitor cannot agree about what constitutes a reasonable pace, the issue will be presented to the Court for resolution.
5

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G. Resources. The Defendants’ responsibility to continue development of and increasing Community Capacity necessary and appropriate to comply with the Consent Decree and this Plan shall continue under this Plan and shall incorporate and respond to findings by the Monitor and the consultant pursuant to paragraph I herein. H. Implementation Plan. By April 30, 2018, Defendants shall send to Class Counsel and the Court Monitor a proposed, updated Phase 4 Implementation Plan that will include detailed plans and programs to achieve compliance with this Cost Neutral Plan and the Consent Decree. The Phase 4 Implementation Plan will detail Defendants’ plan to increase the pace of transitions from the benchmarks required by the Consent Decree to those in this Cost Neutral Plan. Detailed plans will be set out to achieve the requirement to reach all Class Members. Specific targets for the pace of Evaluations, development of Service Plans, development of additional CommunityBased Services and Settings, and all other actions and activities necessary to comply with this Cost Neutral Plan and the Consent Decree will be detailed in the Phase 4 Implementation Plan. The provisions of the Consent Decree regarding review and approval of proposed Implementation Plan updates remain in effect. The Phase 4 Implementation Plan shall be finalized by the Parties and the Monitor and filed with the Court by June 30, 2018, or, if the Parties are unable to agree on an Implementation Plan, the Parties shall submit their proposed Implementation Plans to the Court no later than July 13, 2018. I. Community Capacity-Building. In respectful reliance on the reports issued by the consultant in April 2017 and the Court Monitor in May 2017, the Phase 4 Implementation Plan shall include detailed and precise steps and plans to address barriers to development of Community Capacity and to expand substantially Community Capacity in order to transition Class Members as required by the Consent Decree and this Updated Cost Neutral Plan.
6

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J. Future Actions. All provisions of the Consent Decree and the current Implementation Plan not specifically changed or modified by this Updated Cost Neutral Plan shall remain in full force and effect. The Parties and the Court Monitor shall meet with the Court at least annually to discuss and report on their progress. K. Termination. Until the Consent Decree is terminated, the Court shall retain exclusive jurisdiction to fully oversee, supervise, modify and enforce the terms of the Consent Decree, the current and updated Implementation Plan and this Cost Neutral Plan. Pursuant to Section XII.D of the Consent Decree, the Parties, jointly or separately, may request termination of the monitoring process described in Section XIII of the Consent Decree, the Consent Decree, the updated Implementation Plan and this Updated Cost Neutral Plan at any time after December 31, 2021, if the Monitor agrees that Defendants have substantially complied with the terms of the Consent Decree, the Implementation Plan and this Cost Neutral Plan. Defendants shall notify Class Counsel in writing if they intend to seek termination of the Consent Decree (Termination Request). Class Counsel shall have 120 days from receipt of the Termination Request to conduct reasonable discovery concerning issues relevant to the determination of compliance. If Class Counsel oppose the Termination Request, Class Counsel may file a response within 120 days from the date of receipt of all information reasonably requested from Defendants in the conduct of discovery. The Court may grant Defendants’ Termination Request if the Court finds that Defendants have substantially complied with the terms of the Consent Decree, and the Court determines that Defendants have implemented and are maintaining a system that complies with the Consent Decree, the Implementation Plan and this Cost Neutral Plan. The Consent Decree, the Implementation Plan and this Cost Neutral Plan shall remain in effect, and the Court shall retain its jurisdiction over the Consent Decree, the Implementation Plan and this Cost Neutral
7

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Plan, until a final order is entered granting a Termination Request and all appellate rights have been exhausted.

Date: April 5, 2018

_____________________________ U.S. District Judge Joan H. Lefkow

8

 </s> Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 1 of 33
PROTO,TERMED,VALDEZ
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.2.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:07−cv−04737

Colbert et al v. Rauner et al Assigned to: Honorable Joan H. Lefkow Cause: 29:0794 Job Discrimination (Handicap)
Plaintiff Lenil Colbert

Date Filed: 08/22/2007 Date Terminated: 12/20/2011 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question
represented by Daniel J. Zollner Dykema Gossett PLLc 10 South Wacker Drive Suite 2300 Chicago, IL 60606

Email: dzollner@dykema.com TERMINATED: 05/06/2008 LEAD ATTORNEY

Hallie Joan Fahey Ross Dixon & Bell, LLP 55 West Monroe Street Suite 3000 Chicago, IL 60603−5758 (312) 759−1920 Email: hallie.fahey@troutmansanders.com TERMINATED: 01/13/2009 LEAD ATTORNEY

Max P Lapertosa U.S. Department of Justice 1800 G Street NW Room 7119 Washington, DC 20006 (202) 305−1077 Email: Max.Lapertosa@usdoj.gov TERMINATED: 05/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen David Libowsky Dentons US LLP 233 South Wacker Drive Suite 5900 Chicago, IL 60606 3128768000 Email: stephen.libowsky@dentons.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angela Mary Barry Howrey LLP (CH) 321 North Clark Street Suite 3400 Chicago, IL 60654−2402 312 846 5681 Email: barrya@howrey.com TERMINATED: 02/25/2010

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 2 of 33
Barry Charlton Taylor Equip for Equality 20 North Michigan Suite 300 Chicago, IL 60602 (312) 895−7317 Email: barryt@equipforequality.org ATTORNEY TO BE NOTICED
Benjamin S. Wolf Roger Baldwin Foundation of ACLU, Inc. 150 N. Michigan Ave. Suite 600 Chicago, IL 60601−7401 (312) 201−9740 Email: bwolf@aclu−il.org ATTORNEY TO BE NOTICED
Celiza Braganca Braganca Law LLC 230 South Clark Street, #262 Chicago, IL 60604 847−906−3460 Email: Lisa@SECDefenseAttorney.com TERMINATED: 09/27/2012
Claire E.W. Stewart Roger Baldwin Foundation of ACLU, Inc. 150 N. Michigan Ave. Ste. 600 Chicago, IL 60601 (312) 201−9740 Email: cstewart@aclu−il.org ATTORNEY TO BE NOTICED
David I Curkovic Cope Ehlers, P.C. 120 W. Madison Suite 1300 Chicago, IL 60602 312−549−9383 Email: dcurkovic@copeehlers.com TERMINATED: 11/25/2008
Edward B. Mullen , III Ed Mullen, Esq. 2129 N. Western Ave Chicago, IL 60647 312−342−8972 Email: ed_mullen@mac.com ATTORNEY TO BE NOTICED
Karen I. Ward Equip for Equality 20 North Michigan Suite 300 Chicago, IL 60602 (312) 341−0022 Email: karen@equipforequality.org TERMINATED: 06/18/2014 ATTORNEY TO BE NOTICED
Kenneth M Walden Access Living 115 West Chicago Avenue

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 3 of 33

Chicago, IL 60654 (312) 640 − 2136 Email: kwalden@accessliving.org TERMINATED: 09/27/2012

Kimberly L. Borowicz Access Living 115 W. Chicago Avenue Chicago, IL 60654 312 640 2155 Email: kborowicz@accessliving.org TERMINATED: 09/27/2012

Patricia A. Werner Access Living 115 West Chicago Ave. Chicago, IL 60654 312/640−2148 Email: pwerner@accessliving.org TERMINATED: 09/27/2012

Regina A Ripley Nicolaides Fink Thorpe Michaelides Sullivan 10 South Wacker Suite 2100 Chicago, IL 60606 (312) 585−1478 Email: rripley@nicolaidesllp.com TERMINATED: 01/13/2009

Shannon Young Shin Dentons US LLP 233 South Wacker Drive Suite 5900 Chicago, IL 312−876−8000 Email: shannon.shin@dentons.com ATTORNEY TO BE NOTICED

Stephen F. Gold Law Offices of Stephen F. Gold 1709 Benjamin Franklin Pkwy 2nd Floor Philadelphia, PA 19103 (215) 627−7100 ATTORNEY TO BE NOTICED

Plaintiff Constance Gray

represented by Daniel J. Zollner (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY

Hallie Joan Fahey (See above for address) TERMINATED: 01/13/2009 LEAD ATTORNEY

Max P Lapertosa (See above for address) TERMINATED: 05/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 4 of 33

Plaintiff

Stephen David Libowsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela Mary Barry (See above for address) TERMINATED: 02/25/2010
Barry Charlton Taylor (See above for address) ATTORNEY TO BE NOTICED
Benjamin S. Wolf (See above for address) ATTORNEY TO BE NOTICED
Celiza Braganca (See above for address) TERMINATED: 09/27/2012
Claire E.W. Stewart (See above for address) ATTORNEY TO BE NOTICED
David I Curkovic (See above for address) TERMINATED: 11/25/2008
Edward B. Mullen , III (See above for address) ATTORNEY TO BE NOTICED
Karen I. Ward (See above for address) TERMINATED: 06/18/2014 ATTORNEY TO BE NOTICED
Kenneth M Walden (See above for address) TERMINATED: 09/27/2012 ATTORNEY TO BE NOTICED
Kimberly L. Borowicz (See above for address) TERMINATED: 09/27/2012
Patricia A. Werner (See above for address) TERMINATED: 09/27/2012
Regina A Ripley (See above for address) TERMINATED: 01/13/2009
Shannon Young Shin (See above for address) ATTORNEY TO BE NOTICED
Stephen F. Gold (See above for address) ATTORNEY TO BE NOTICED

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 5 of 33

Ernest Reeves

represented by Daniel J. Zollner (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY

Hallie Joan Fahey (See above for address) TERMINATED: 01/13/2009 LEAD ATTORNEY

Max P Lapertosa (See above for address) TERMINATED: 05/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen David Libowsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angela Mary Barry (See above for address) TERMINATED: 02/25/2010

Barry Charlton Taylor (See above for address) ATTORNEY TO BE NOTICED

Benjamin S. Wolf (See above for address) ATTORNEY TO BE NOTICED

Celiza Braganca (See above for address) TERMINATED: 09/27/2012

Claire E.W. Stewart (See above for address) ATTORNEY TO BE NOTICED

David I Curkovic (See above for address) TERMINATED: 11/25/2008

Edward B. Mullen , III (See above for address) ATTORNEY TO BE NOTICED

Karen I. Ward (See above for address) TERMINATED: 06/18/2014 ATTORNEY TO BE NOTICED

Kenneth M Walden (See above for address) TERMINATED: 09/27/2012 ATTORNEY TO BE NOTICED

Kimberly L. Borowicz (See above for address) TERMINATED: 09/27/2012

Patricia A. Werner (See above for address)

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 6 of 33

TERMINATED: 09/27/2012

Regina A Ripley (See above for address) TERMINATED: 01/13/2009

Shannon Young Shin (See above for address) ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Kenya Lyles

represented by Daniel J. Zollner (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY

Hallie Joan Fahey (See above for address) TERMINATED: 01/13/2009 LEAD ATTORNEY

Max P Lapertosa (See above for address) TERMINATED: 05/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen David Libowsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angela Mary Barry (See above for address) TERMINATED: 02/25/2010

Barry Charlton Taylor (See above for address) ATTORNEY TO BE NOTICED

Benjamin S. Wolf (See above for address) ATTORNEY TO BE NOTICED

Celiza Braganca (See above for address) TERMINATED: 09/27/2012

Claire E.W. Stewart (See above for address) ATTORNEY TO BE NOTICED

David I Curkovic (See above for address) TERMINATED: 11/25/2008

Edward B. Mullen , III (See above for address) ATTORNEY TO BE NOTICED

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 7 of 33

Karen I. Ward (See above for address) TERMINATED: 06/18/2014 ATTORNEY TO BE NOTICED

Kenneth M Walden (See above for address) TERMINATED: 09/27/2012 ATTORNEY TO BE NOTICED

Kimberly L. Borowicz (See above for address) TERMINATED: 09/27/2012

Patricia A. Werner (See above for address) TERMINATED: 09/27/2012

Regina A Ripley (See above for address) TERMINATED: 01/13/2009

Shannon Young Shin (See above for address) ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Dwight Scott for themselves and all others similarly situated

represented by Daniel J. Zollner (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY

Hallie Joan Fahey (See above for address) TERMINATED: 01/13/2009 LEAD ATTORNEY

Max P Lapertosa (See above for address) TERMINATED: 05/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen David Libowsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angela Mary Barry (See above for address) TERMINATED: 02/25/2010

Barry Charlton Taylor (See above for address) ATTORNEY TO BE NOTICED

Benjamin S. Wolf (See above for address) ATTORNEY TO BE NOTICED

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 8 of 33
Celiza Braganca (See above for address) TERMINATED: 09/27/2012
Claire E.W. Stewart (See above for address) ATTORNEY TO BE NOTICED
David I Curkovic (See above for address) TERMINATED: 11/25/2008
Edward B. Mullen , III (See above for address) ATTORNEY TO BE NOTICED
Karen I. Ward (See above for address) TERMINATED: 06/18/2014 ATTORNEY TO BE NOTICED
Kenneth M Walden (See above for address) TERMINATED: 09/27/2012 ATTORNEY TO BE NOTICED
Kimberly L. Borowicz (See above for address) TERMINATED: 09/27/2012
Patricia A. Werner (See above for address) TERMINATED: 09/27/2012
Regina A Ripley (See above for address) TERMINATED: 01/13/2009
Shannon Young Shin (See above for address) ATTORNEY TO BE NOTICED
Stephen F. Gold (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Bruce Rauner

represented by Andrew Laurence Dryjanski Office of the Illinois Attorney General 100 West Randolph Street 13th Floor Chicago, IL 60601 (312)814−3632 Email: adryjanski@atg.state.il.us TERMINATED: 01/15/2015 LEAD ATTORNEY
Brent Douglas Stratton Office of the Attorney General 100 West Randolph Street Chicago, IL 60601 (312)814−2560

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 9 of 33
Email: bstratton@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kerry R. Peck Peck, Bloom, Miller & Mitchell 105 West Adams 31st Floor Chicago, IL 60603 (312) 201−0900 Email: kpeck@peckbloom.com TERMINATED: 06/18/2009 LEAD ATTORNEY
Gladys M. Stevens Illinois Attorney General's Office 100 West Randolph Street 13th Floor Chicago, IL 60601 (312)814−3313 Email: gstevens@atg.state.il.us ATTORNEY TO BE NOTICED
Meghan Maine Illinois Department of Human Services 100 West Randolph Street 6th Floor Chicago, IL 60601 (312) 814−0927 Email: Meghan.Maine@illinois.gov ATTORNEY TO BE NOTICED
Peter Chadwell Koch Office of the Attorney General 100 West Randolph Street Chicago, IL 60601 (312)814−6534 Email: pkoch@atg.state.il.us TERMINATED: 05/31/2011
R. Douglas Rees Office of the Illinois Attorney General 100 W. Randolph Street 12th Floor Chicago, IL 60601 (312) 814−3498 Email: drees@atg.state.il.us ATTORNEY TO BE NOTICED
Rachel Jana Moore Rachel Moore Law, LLC One Northfield Plaza Suite 300 Northfield, IL 60093 847 441 1851 Email: rachel@rachelmoorelaw.com ATTORNEY TO BE NOTICED
Raymond Joseph Koenig , III Peck, Bloom, Austriaco & Mitchell, LLC 105 West Adams 31st Floor Chicago, IL 60603 (312)201−0900 Email: rkoenig@peckbloom.com

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 10 of 33

TERMINATED: 06/18/2009

Timothy J. Ritchey Peck, Bloom, Austriaco & Mitchell, LLC 105 W. Adams 31st Floor Chicago, IL 60603 (312)201−0900 Email: tritchey@peckbloom.com TERMINATED: 06/18/2009

Defendant
Carol L Adams in her official capacity as Secretary of the Illinois Department of Human Services

represented by Andrew Laurence Dryjanski (See above for address) TERMINATED: 01/15/2015 LEAD ATTORNEY

Brent Douglas Stratton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gladys M. Stevens (See above for address) ATTORNEY TO BE NOTICED

Meghan Maine (See above for address) ATTORNEY TO BE NOTICED

Peter Chadwell Koch (See above for address) TERMINATED: 05/31/2011

R. Douglas Rees (See above for address) ATTORNEY TO BE NOTICED

Rachel Jana Moore (See above for address) ATTORNEY TO BE NOTICED

Defendant
Barry S Maram in his official capacity as Director of the Illinois Department of Healthcare and Family Services

represented by Andrew Laurence Dryjanski (See above for address) TERMINATED: 01/15/2015 LEAD ATTORNEY

Brent Douglas Stratton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gladys M. Stevens (See above for address) ATTORNEY TO BE NOTICED

Karen Elaine Konieczny Illinois Attorney General's Office 160 North LaSalle Street Suite N−1000 Chicago, IL 60601 (312)793−2380 Email: karen.konieczny@illinois.gov

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 11 of 33

Defendant M.D. Eric E Whitaker in his official capacity as Director of the Illinois Deparment of Public Health TERMINATED: 09/29/2009
Defendant Charles D. Johnson
Defendant Damon T. Arnold

Meghan Maine (See above for address) ATTORNEY TO BE NOTICED
Peter Chadwell Koch (See above for address) TERMINATED: 05/31/2011
R. Douglas Rees (See above for address) ATTORNEY TO BE NOTICED
Rachel Jana Moore (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Laurence Dryjanski (See above for address) TERMINATED: 01/15/2015 LEAD ATTORNEY
Brent Douglas Stratton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gladys M. Stevens (See above for address) ATTORNEY TO BE NOTICED
Meghan Maine (See above for address) ATTORNEY TO BE NOTICED
Peter Chadwell Koch (See above for address) ATTORNEY TO BE NOTICED
Rachel Jana Moore (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Laurence Dryjanski (See above for address) TERMINATED: 01/15/2015 LEAD ATTORNEY
Brent Douglas Stratton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Douglas Rees (See above for address) ATTORNEY TO BE NOTICED
represented by R. Douglas Rees (See above for address) ATTORNEY TO BE NOTICED

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 12 of 33

Defendant Michelle R.B. Saddler
Defendant Julie Hamos
Defendant John Holton
Defendant LaMar Hasbrouck
Service List

represented by R. Douglas Rees (See above for address) ATTORNEY TO BE NOTICED
represented by R. Douglas Rees (See above for address) ATTORNEY TO BE NOTICED
represented by R. Douglas Rees (See above for address) ATTORNEY TO BE NOTICED
represented by R. Douglas Rees (See above for address) ATTORNEY TO BE NOTICED
represented by Gail P Hutchings Court Monitor 4923 Waple Lane Alexandria, VA 22304 (703) 350−7936 Email: GHutchings@BehavioralHealthPolicy.com ATTORNEY TO BE NOTICED

Date Filed 08/22/2007 08/22/2007 08/22/2007 08/22/2007 08/22/2007 08/29/2007 08/30/2007 08/30/2007 08/30/2007
08/30/2007
09/10/2007

# Docket Text
1 COMPLAINT filed by Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves.(rbf, ) (Entered: 08/23/2007)
2 CIVIL Cover Sheet. (rbf, ) (Entered: 08/23/2007)
3 ATTORNEY Appearance for Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves by Max P Lapertosa (rbf, ) (Entered: 08/23/2007)
4 ATTORNEY Appearance for Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves by Daniel J. Zollner (rbf, ) (Entered: 08/23/2007)
6 SUMMONS Issued as to Defendants Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker (rbf, ) (Entered: 08/23/2007)
7 AFFIDAVIT of Service filed by Plaintiff Lenil Colbert on August 29, 2007 (Attachments: # 1 Affidavit of Process Server)(Zollner, Daniel) (Entered: 08/29/2007)
8 MINUTE entry before Judge Joan H. Lefkow :Status hearing set for 10/18/2007 at 09:30 AM.Mailed notice (mad, ) (Entered: 08/30/2007)
9 MOTION by Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves to certify class (Lapertosa, Max) (Entered: 08/30/2007)
10 MEMORANDUM by Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves in support of motion to certify class 9 (Lapertosa, Max) (Entered: 08/30/2007)
11 NOTICE of Motion by Max P Lapertosa for presentment of motion to certify class 9 before Honorable Joan H. Lefkow on 9/25/2007 at 09:30 AM. (Lapertosa, Max) (Entered: 08/30/2007)
13 ATTORNEY Appearance for Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves by Edward B. Mullen (rbf, ) (Entered: 09/12/2007)

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 13 of 33

09/11/2007 09/12/2007
09/12/2007
09/13/2007
09/13/2007 09/13/2007 09/13/2007 09/13/2007 09/13/2007 09/13/2007 09/13/2007
09/13/2007
09/13/2007
09/14/2007
09/14/2007
09/14/2007 09/19/2007 09/21/2007
09/21/2007 09/25/2007

12 ATTORNEY Appearance for Defendant Barry S Maram by Karen Elaine Konieczny (Konieczny, Karen) (Entered: 09/11/2007)
14 ATTORNEY Appearance for Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves by Regina A Ripley (Ripley, Regina) (Entered: 09/12/2007)
15 ATTORNEY Appearance for Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves by David I Curkovic (Curkovic, David) (Entered: 09/12/2007)
16 ATTORNEY Appearance for Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves by Daniel J. Zollner Application for Leave to Appear Pro Hac Vice (Zollner, Daniel) (Entered: 09/13/2007)
17 ATTORNEY Appearance for Defendant Rod R Blagojevich by Raymond Joseph Koenig, III (Koenig, Raymond) (Entered: 09/13/2007)
18 ATTORNEY Appearance for Defendant Rod R Blagojevich by Timothy J. Ritchey (Ritchey, Timothy) (Entered: 09/13/2007)
19 ATTORNEY Appearance for Defendants Carol L Adams, Barry S Maram, Eric E Whitaker by Andrew Laurence Dryjanski (Dryjanski, Andrew) (Entered: 09/13/2007)
20 ATTORNEY Appearance for Defendants Carol L Adams, Barry S Maram, Eric E Whitaker by Gladys M. Stevens (Stevens, Gladys) (Entered: 09/13/2007)
21 ATTORNEY Appearance for Defendant Rod R Blagojevich by Andrew Laurence Dryjanski (Dryjanski, Andrew) (Entered: 09/13/2007)
22 ATTORNEY Appearance for Defendant Rod R Blagojevich by Gladys M. Stevens (Stevens, Gladys) (Entered: 09/13/2007)
23 ATTORNEY Appearance for Defendants Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker by Meghan O. Maine (Maine, Meghan) (Entered: 09/13/2007)
24 MOTION by Defendants Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker for extension of time to file answer regarding complaint 1 or otherwise plead (Ritchey, Timothy) (Entered: 09/13/2007)
25 NOTICE of Motion by Timothy J. Ritchey for presentment of motion for extension of time to file answer, motion for relief 24 before Honorable Joan H. Lefkow on 9/25/2007 at 09:30 AM. (Ritchey, Timothy) (Entered: 09/13/2007)
26 ATTORNEY Appearance for Defendants Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker by Rachel Jana Fleischmann (Fleischmann, Rachel) (Entered: 09/14/2007)
27 ATTORNEY Appearance for Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves by Benjamin S. Wolf (Wolf, Benjamin) (Entered: 09/14/2007)
28 ATTORNEY Appearance for Defendants Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker by Peter Chadwell Koch (Koch, Peter) (Entered: 09/14/2007)
29 NOTICE by Edward B. Mullen of Change of Address (rbf, ) (Entered: 09/21/2007)
30 ATTORNEY Appearance for Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves by Kenneth M Walden (Walden, Kenneth) (Entered: 09/21/2007)
31 ATTORNEY Appearance for Defendant Rod R Blagojevich by Kerry R. Peck; Notice of Filing. (rbf, ) (Entered: 09/26/2007)
32 MINUTE entry before Judge Joan H. Lefkow :Motion hearing held. Defendants' motion for extension of time to respond to complaint 24 is granted to 11/5/2007. Plaintiff's motion to maintain a class action is continued to 11/20/2007 at 09:30 AM. Status hearing of 10/18/2007 is stricken.Mailed notice (mad, ) (Entered: 09/26/2007)

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 14 of 33

09/26/2007 11/05/2007 11/05/2007 11/05/2007 11/07/2007 11/07/2007 11/09/2007 11/16/2007 11/16/2007 11/20/2007
11/27/2007 11/27/2007 12/03/2007
12/04/2007 12/21/2007 12/21/2007 01/03/2008 01/03/2008

33 ATTORNEY Appearance for Defendants Carol L Adams, Barry S Maram, Eric E Whitaker by Brent Douglas Stratton (Stratton, Brent) (Entered: 09/26/2007)
34 MOTION by Defendants Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitakerfor more definite statement (Dryjanski, Andrew) (Entered: 11/05/2007)
35 MEMORANDUM by Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker in support of motion for more definite statement 34 (Dryjanski, Andrew) (Entered: 11/05/2007)
36 NOTICE of Motion by Andrew Laurence Dryjanski for presentment of motion for more definite statement 34 before Honorable Joan H. Lefkow on 11/20/2007 at 09:30 AM. (Dryjanski, Andrew) (Entered: 11/05/2007)
37 Notice of Withdrawal of Appearance by Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves (Zollner, Daniel) (Entered: 11/07/2007)
38 NOTICE by Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves re other 37 Notice of Filing (Zollner, Daniel) (Entered: 11/07/2007)
39 ATTORNEY Appearance for Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves by Karen I. Ward (Ward, Karen) (Entered: 11/09/2007)
40 MEMORANDUM by Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves in Opposition to motion for more definite statement 34 (Lapertosa, Max) (Entered: 11/16/2007)
41 NOTICE by all plaintiffs re memorandum in opposition to motion 40 for more definite statement (Lapertosa, Max) (Entered: 11/16/2007)
42 MINUTE entry before Judge Joan H. Lefkow :Motion hearing held. Reply in support of defendants' joint motion for more definite statement 34 is due by 11/27/2007. Hearing and ruling is set for 12/11/2007 at 10:00 AM. Mailed notice (mad, ) (Entered: 11/20/2007)
43 REPLY by Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker to memorandum in opposition to motion 40 for a more definite statement (Ritchey, Timothy) (Entered: 11/27/2007)
44 NOTICE by all defendants re reply to response to motion 43 for a more definite statement (Ritchey, Timothy) (Entered: 11/27/2007)
45 MINUTE entry before Judge Joan H. Lefkow :Defendants' motion for a more definite statement 34 is denied. In−court hearing and ruling date of 12/11/2007 is stricken. Defendants are directed to answer or otherwise plead to the complaint by January 2, 2008. Defendants' response to the motion to maintain a class action shall be filed by January 15, 2008, and plaintiffs' reply by January 31, 2008. Mailed notice (mad, ) (Entered: 12/03/2007)
46 APPLICATION for Leave to Appear Pro Hac Vice on behalf of Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves by Stephen F. Gold; Order entered. Filing fee $ 50 paid, receipt number 10342280. (gmr, ) (Entered: 12/06/2007)
47 MOTION by Defendants Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker for extension of time to file answer regarding complaint 1 (Ritchey, Timothy) (Entered: 12/21/2007)
48 NOTICE of Motion by Timothy J. Ritchey for presentment of motion for extension of time to file answer, motion for relief 47 before Honorable Joan H. Lefkow on 1/8/2008 at 09:30 AM. (Ritchey, Timothy) (Entered: 12/21/2007)
49 MOTION by Defendants Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker for extension of time to file response/reply as to motion to certify class 9 and for limited discovery on proposed class (Ritchey, Timothy) (Entered: 01/03/2008)
50 NOTICE of Motion by Timothy J. Ritchey for presentment of motion for extension of time to file response/reply, motion for relief 49 before Honorable Joan H. Lefkow on 1/8/2008 at 09:30 AM. (Ritchey, Timothy) (Entered: 01/03/2008)

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 15 of 33

01/08/2008
01/18/2008 01/18/2008 01/18/2008 01/18/2008 01/30/2008 01/30/2008 02/05/2008 02/05/2008 03/11/2008
03/11/2008 03/17/2008
03/17/2008
03/20/2008 04/14/2008 04/14/2008 04/14/2008

51 MINUTE entry before Judge Joan H. Lefkow :Defendants' joint motion for second extension of time to 1/18/2008 to respond to complaint 47 is granted. Defendants' joint motion to conduct limited discovery on the proposed class and to extend defendants' deadline to 3/17/2008 to respond to plaintiffs' motion for class certification 49 is granted. Reply will be due by 3/31/2008.Mailed notice (mad, ) (Entered: 01/08/2008)
52 ANSWER to Complaint by Rod R Blagojevich(Ritchey, Timothy) (Entered: 01/18/2008)
53 NOTICE by Rod R Blagojevich re answer to complaint 52 (Ritchey, Timothy) (Entered: 01/18/2008)
54 Affirmative Defenses and ANSWER to Complaint by Carol L Adams, Barry S Maram, Eric E Whitaker(Dryjanski, Andrew) (Entered: 01/18/2008)
55 NOTICE by Carol L Adams, Barry S Maram, Eric E Whitaker re answer to complaint 54 (Dryjanski, Andrew) (Entered: 01/18/2008)
56 MOTION by Defendants Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker for protective order (Attachments: # 1 Exhibit)(Ritchey, Timothy) (Entered: 01/30/2008)
57 NOTICE of Motion by Timothy J. Ritchey for presentment of motion for protective order 56 before Honorable Joan H. Lefkow on 2/5/2008 at 09:30 AM. (Ritchey, Timothy) (Entered: 01/30/2008)
58 MINUTE entry before Judge Joan H. Lefkow : Defendant's motion for agreed protective order 56 is granted. Enter Agreed Protective Order.Mailed notice (rbf, ) (Entered: 02/11/2008)
59 AGREED PROTECTIVE Order Signed by Judge Joan H. Lefkow on 2/5/2008.(rbf, ) (Entered: 02/11/2008)
60 MOTION by Defendants Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker for extension of time to file response/reply to Plaintiffs' Motion to Maintain A Class Action (Attachments: # 1 Exhibit A)(Dryjanski, Andrew) (Entered: 03/11/2008)
61 NOTICE of Motion by Andrew Laurence Dryjanski for presentment of motion for extension of time to file response/reply 60 before Honorable Joan H. Lefkow on 3/20/2008 at 09:30 AM. (Dryjanski, Andrew) (Entered: 03/11/2008)
62 RESPONSE by Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reevesin Opposition to MOTION by Defendants Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker for extension of time to file response/reply to Plaintiffs' Motion to Maintain A Class Action 60 filed on August 30, 2007 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Lapertosa, Max) (Entered: 03/17/2008)
63 NOTICE by Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves re response in opposition to motion, 62 for extension of time to respond to Plaintiffs' August 30, 2007 motion to maintain a class action (Lapertosa, Max) (Entered: 03/17/2008)
64 MINUTE entry before Judge Honorable Joan H. Lefkow: Defendants' joint motion 60 for extension of time to 4/14/2008 to respond to plaintiffs' motion to maintain class action is granted. Reply due by 4/28/2008. Mailed notice (td, ) (Entered: 03/25/2008)
65 MEMORANDUM by Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker in Opposition to motion to certify class 9 (Dryjanski, Andrew) (Entered: 04/14/2008)
66 NOTICE by Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker re memorandum in opposition to motion 65 to Certify Class (Dryjanski, Andrew) (Entered: 04/14/2008)
67 CERTIFICATE of Service /Mailing of Exhibits "A" through "G" in Support of Memorandum in Opposition to Plaintiffs' Motion to Maintain Class Action by Andrew Laurence Dryjanski on behalf of Rod R Blagojevich, Carol L Adams, Barry S Maram,

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 16 of 33

04/28/2008 04/28/2008 04/29/2008 04/29/2008 05/06/2008 05/16/2008 05/16/2008 05/22/2008 09/29/2008
09/29/2008 10/14/2008 10/14/2008 10/15/2008 10/23/2008 11/12/2008 11/13/2008

Eric E Whitaker (Dryjanski, Andrew) (Entered: 04/14/2008)
68 REPLY by Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves to memorandum in opposition to motion 65 , MOTION by Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves to certify class 9 (Attachments: # 1 Exhibit A)(Lapertosa, Max) (Entered: 04/28/2008)
69 NOTICE by Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves re reply to response to motion, 68 to certify class (Lapertosa, Max) (Entered: 04/28/2008)
70 MOTION by counsel for Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves to withdraw as attorney Motion for Leave to Withdraw Appearance (Zollner, Daniel) (Entered: 04/29/2008)
71 NOTICE of Motion by Daniel J. Zollner for presentment of motion to withdraw as attorney 70 before Honorable Joan H. Lefkow on 5/6/2008 at 09:30 AM. (Zollner, Daniel) (Entered: 04/29/2008)
72 MINUTE entry before Honorable Joan H. Lefkow: Motion of Daniel J. Zollner for leave to withdraw appearance 70 is granted. Daniel J. Zollner is withdrawn as attorney for plaintiffs. Mailed notice (kj, ) (Entered: 05/08/2008)
73 MOTION by counsel for Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves to withdraw as attorney for Plaintiffs (Lapertosa, Max) (Entered: 05/16/2008)
74 NOTICE of Motion by Max P Lapertosa for presentment of motion to withdraw as attorney 73 before Honorable Joan H. Lefkow on 5/22/2008 at 09:30 AM. (Lapertosa, Max) (Entered: 05/16/2008)
75 MINUTE entry before the Honorable Joan H. Lefkow: Motion of Max Lapertosa for leave to withdraw appearance on behalf of plaintiffs 73 is granted. Mailed notice (td, ) (Entered: 05/29/2008)
76 MINUTE entry before the Honorable Joan H. Lefkow:Enter Memorandum Opinion and Order. For the reasons stated in the Memorandum Opinion and Order, the court grants plaintiffs' motion to certify this case 9 and certifies the following class: "all Medicaid−eligible adults with disabilities in Cook County, Illinois, who are being, or may in the future be, unnecessarily confined to nursing facilities and who, with appropriate supports and services, may be able to live in a community setting." Status hearing is set for 10/23/2008 at 10:00 a.m.Mailed notice (mad, ) (Entered: 09/29/2008)
77 MEMORANDUM Opinion and Order Signed by the Honorable Joan H. Lefkow on 9/29/2008:Mailed notice(mad, ) (Entered: 09/29/2008)
78 MOTION by Defendants Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker for reconsideration regarding memorandum opinion and order 77 Motion for Partial Reconsideration of Class Certification Order (Dryjanski, Andrew) (Entered: 10/14/2008)
79 NOTICE of Motion by Andrew Laurence Dryjanski for presentment of motion for reconsideration, motion for relief 78 before Honorable Joan H. Lefkow on 10/23/2008 at 09:30 AM. (Dryjanski, Andrew) (Entered: 10/14/2008)
80 ATTORNEY Appearance for Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves by Hallie Joan Fahey (Fahey, Hallie) (Entered: 10/15/2008)
81 MINUTE entry before the Honorable Joan H. Lefkow:Motion hearing held on 10/23/2008. Defendants' joint motion for partial reconsideration of class certification order 78 is denied. Status hearing held on 10/23/2008. Scheduling Conference set for 11/13/2008 at 09:30 AM. Mailed notice (mad, ) (Entered: 10/24/2008)
82 REPORT of Rule 26(f) Planning Meeting (Mullen, Edward) (Entered: 11/12/2008)
83 MINUTE entry before the Honorable Joan H. Lefkow: Scheduling conference held. Status hearing set for 1/29/2009 at 9:30 a.m. Enter Scheduling Order. Amendments to the pleadings and/or joinder of additional parties may be sought upon appropriate

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 17 of 33

11/13/2008 11/18/2008 11/18/2008 11/25/2008
12/15/2008 12/17/2008 12/17/2008 12/23/2008 12/29/2008 12/29/2008 12/29/2008 12/29/2008 01/13/2009
01/15/2009 01/15/2009

motion by 1/16/2009. Non−expert discovery will close on 8/17/2009. Cut−off date for designation of plaintiffs' and defendants' initial trial expert(s) is 11/17/2009; reports of rebuttal expert(s), if any due by 1/18/2010. All expert discovery will be completed by 4/17/2010. [For further detail see separate order(s).] Mailed notice (td, ) (Entered: 11/18/2008)
84 SCHEDULING ORDER Signed by the Honorable Joan H. Lefkow on 11/13/2008. (td, ) (Entered: 11/18/2008)
85 MOTION by counsel for Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves to withdraw as attorney Nunc Pro Tunc (Curkovic, David) (Entered: 11/18/2008)
86 NOTICE of Motion by David I Curkovic for presentment of motion to withdraw as attorney 85 before Honorable Joan H. Lefkow on 11/25/2008 at 09:30 AM. (Curkovic, David) (Entered: 11/18/2008)
87 MINUTE entry before the Honorable Joan H. Lefkow: Motion of David I. Curkovic for leave to withdraw as counsel for plaintiffs 85 is granted. David I. Curkovic is withdrawn as counsel for plaintiffs. Motion for nunc pro tunc entry of order is denied. See Statement below. [For further details see minute order.] Mailed notice (td, ) (Entered: 12/02/2008)
88 ATTORNEY Appearance for Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves by Kimberly L. Borowicz (Borowicz, Kimberly) (Entered: 12/15/2008)
89 MOTION by Defendants Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker for extension of time to make Rule 26(a)(1) disclosures (Ritchey, Timothy) (Entered: 12/17/2008)
90 NOTICE of Motion by Timothy J. Ritchey for presentment of extension of time 89 before Honorable Joan H. Lefkow on 1/6/2009 at 09:30 AM. (Ritchey, Timothy) (Entered: 12/17/2008)
91 MINUTE entry before the Honorable Joan H. Lefkow:Defendant's agreed motion to extend time to 1/16/2009 to make Rule 26(a)(1) disclosures 89 is granted. Motion hearing date of 1/6/2009 is stricken.Mailed notice (mad, ) (Entered: 12/23/2008)
92 MOTION by counsel for Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves to withdraw as attorney Motion for Leave to Withdraw (Ripley, Regina) (Entered: 12/29/2008)
93 Notice of Motion NOTICE of Motion by Regina A Ripley for presentment of motion to withdraw as attorney 92 before Honorable Joan H. Lefkow on 1/13/2009 at 09:30 AM. (Ripley, Regina) (Entered: 12/29/2008)
94 MOTION by counsel for Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves to withdraw as attorney Motion for Leave to Withdraw (Fahey, Hallie) (Entered: 12/29/2008)
95 Notice of Motion NOTICE of Motion by Hallie Joan Fahey for presentment of motion to withdraw as attorney 94 before Honorable Joan H. Lefkow on 1/13/2009 at 09:30 AM. (Fahey, Hallie) (Entered: 12/29/2008)
96 MINUTE entry before the Honorable Joan H. Lefkow: Motion of Regina A. Ripley for leave to withdraw appearance as counsel for plaintiffs 92 is granted. Motion of Hallie Miller Fahey for leave to withdraw appearance as counsel for plaintiffs 94 is granted. Mailed notice (td, ) (Entered: 01/15/2009)
97 MOTION by Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves for leave to file Appearances of Additional Counsel (Libowsky, Stephen) (Entered: 01/15/2009)
98 NOTICE of Motion by Stephen David Libowsky for presentment of motion for leave to file 97 before Honorable Joan H. Lefkow on 1/27/2009 at 09:30 AM. (Libowsky, Stephen) (Entered: 01/15/2009)

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 18 of 33

01/16/2009 01/16/2009 01/16/2009 01/16/2009 01/27/2009 01/27/2009 01/27/2009
02/10/2009
02/10/2009 02/20/2009 02/20/2009 02/20/2009
02/25/2009
02/25/2009 02/25/2009 02/26/2009

99 MOTION by Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves to amend/correct Complaint (Attachments: # 1 Exhibit First Amended Complaint, # 2 Exhibit Article)(Borowicz, Kimberly) (Entered: 01/16/2009)
100 NOTICE of Motion by Kimberly L. Borowicz for presentment of motion to amend/correct 99 before Honorable Joan H. Lefkow on 1/27/2009 at 09:30 AM. (Borowicz, Kimberly) (Entered: 01/16/2009)
101 REPORT of Rule 26(f) Planning Meeting (Dryjanski, Andrew) (Entered: 01/16/2009)
102 NOTICE by Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker re report of rule 26(f) planning meeting 101 Defendants' Rule 26(a)(1) Disclosures (Dryjanski, Andrew) (Entered: 01/16/2009)
103 ATTORNEY Appearance for Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves by Stephen David Libowsky (Libowsky, Stephen) (Entered: 01/27/2009)
104 ATTORNEY Appearance for Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves by Angela Mary Barry (Barry, Angela) (Entered: 01/27/2009)
105 MINUTE entry before the Honorable Joan H. Lefkow: Motion hearing held. Motion of Stephen D. Libowsky and Angela M. Barry of Howrey, LLP for leave to enter appearances of additional counsel on behalf of plaintiffs 97 is granted. Response to plaintiffs' motion for leave to amend the complaint 99 due by 2/10/2009; reply due by 2/24/2009. Status hearing of 1/29/2009 is stricken. Mailed notice (td, ) (Entered: 01/28/2009)
106 RESPONSE by Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitakerin Opposition to MOTION by Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves to amend/correct Complaint 99 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Dryjanski, Andrew) (Entered: 02/10/2009)
107 NOTICE by Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker re response in opposition to motion, 106 (Dryjanski, Andrew) (Entered: 02/10/2009)
108 MOTION by Defendants Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker for extension of time to respond to discovery (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Ritchey, Timothy) (Entered: 02/20/2009)
109 NOTICE of Motion by Timothy J. Ritchey for presentment of extension of time 108 before Honorable Joan H. Lefkow on 2/26/2009 at 09:30 AM. (Ritchey, Timothy) (Entered: 02/20/2009)
110 REPLY by Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves to response in opposition to motion, 106 , MOTION by Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves to amend/correct Complaint 99 (Attachments: # 1 Exhibit)(Libowsky, Stephen) (Entered: 02/20/2009)
111 RESPONSE by Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves to MOTION by Defendants Rod R Blagojevich, Carol L Adams, Barry S Maram, Eric E Whitaker for extension of time to respond to discovery 108 (Attachments: # 1 Exhibit)(Borowicz, Kimberly) (Entered: 02/25/2009)
112 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable Maria Valdez for the purpose of holding proceedings related to: discovery supervision.(mad, )Mailed notice. (Entered: 02/25/2009)
113 MINUTE entry before the Honorable Joan H. Lefkow:Defendant's motion for extension of an additional 30 days to respond to plaintiffs' discovery request 108 is granted.Mailed notice (mad, ) (Entered: 02/25/2009)
114 MINUTE entry before the Honorable Maria Valdez:Initial status hearing is set before Magistrate Judge Maria Valdez on 3/19/09 at 9:30 a.m., in Courtroom 1300. Parties shall deliver a copy of an initial status report, to chambers, Room 1318, four business days before the initial status hearing. The parties must follow the format for an Initial Status Report found on the Judge's website available at www.ilnd.uscourts.gov, or the parties can contact courtroom deputy, Yolanda Pagan, at 312/408−5135 for a copy. If

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 19 of 33

03/04/2009
03/11/2009 03/17/2009 05/14/2009 05/14/2009 05/18/2009 05/18/2009 05/20/2009
06/01/2009 06/01/2009 06/04/2009 06/04/2009 06/04/2009 06/04/2009 06/15/2009 06/15/2009 06/18/2009

the parties have recently prepared and filed an initial status report, the submission of the previously filed initial status report is sufficient.Mailed notice (yp, ) (Entered: 02/26/2009)
115 MINUTE entry before the Honorable Maria Valdez: At counsel's telephonic request, Initial status hearing is reset before Magistrate Judge Maria Valdez on 3/17/09 at 9:30 a.m., in Courtroom 1300. Parties shall deliver a copy of an initial status report, to chambers, Room 1318, four business days before the initial status hearing. The parties must follow the format for an Initial Status Report found on the Judge's website available at www.ilnd.uscourts.gov, or the parties can contact courtroom deputy, Yolanda Pagan, at 312/408−5135 for a copy. If the parties have recently prepared and filed an initial status report, the submission of the previously filed initial status report is sufficient. Mailed notice (yp, ) (Entered: 03/04/2009)
116 STATUS Report by Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4)(Libowsky, Stephen) (Entered: 03/11/2009)
117 MINUTE entry before the Honorable Maria Valdez:Magistrate Judge Status hearing held on 3/17/2009. Status hearing continued to 5/20/2009 at 09:30 a.m. Court inquire about early mediation. Mailed notice (yp, ) (Entered: 03/18/2009)
118 MOTION by Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reevesto File New and Proper Answers (Libowsky, Stephen) (Entered: 05/14/2009)
119 NOTICE of Motion by Stephen David Libowsky for presentment of motion for miscellaneous relief 118 before Honorable Maria Valdez on 5/20/2009 at 09:45 AM. (Libowsky, Stephen) (Entered: 05/14/2009)
120 STIPULATION (Libowsky, Stephen) (Entered: 05/18/2009)
121 NOTICE by all plaintiffs re stipulation 120 (Libowsky, Stephen) (Entered: 05/18/2009)
122 MINUTE entry before the Honorable Maria Valdez: Magistrate Judge Status hearing and motion hearing held on 5/20/2009. Plaintiffs' motion to require defendants to file new and proper answers 118 is withdrawn. Court inquired about settlement conference. Status hearing continued to 8/11/2009 at 09:30 AM.Mailed notice (yp, ) (Entered: 05/21/2009)
123 Defendant Carol Adams' Amended ANSWER to Complaint and Affirmative Defenses by Carol L Adams(Dryjanski, Andrew) (Entered: 06/01/2009)
124 NOTICE by Carol L Adams re answer to complaint 123 (Dryjanski, Andrew) (Entered: 06/01/2009)
125 AMENDED Answer by Defendant Barry S Maram to Plaintiffs' complaint 1 (Dryjanski, Andrew) (Entered: 06/04/2009)
126 NOTICE by Barry S Maram re amended answer to complaint 125 (Dryjanski, Andrew) (Entered: 06/04/2009)
127 AMENDED Answer by Defendant Eric E Whitaker to Plaintiffs' complaint 1 (Dryjanski, Andrew) (Entered: 06/04/2009)
128 NOTICE by Eric E Whitaker re amended answer to complaint 127 (Dryjanski, Andrew) (Entered: 06/04/2009)
129 MOTION by counsel for Defendant Rod R Blagojevich to withdraw as attorney (Ritchey, Timothy) (Entered: 06/15/2009)
130 NOTICE of Motion by Timothy J. Ritchey for presentment of motion to withdraw as attorney 129 before Honorable Joan H. Lefkow on 6/18/2009 at 09:30 AM. (Ritchey, Timothy) (Entered: 06/15/2009)
131 MINUTE entry before the Honorable Joan H. Lefkow:Motion of Kerry R. Peck, Timothy J. Ritchey and Ray J. Koenig for leave to withdraw as counsel for defendant Pat Quinn, in his official capacity as Governor of Illinois 129 is granted. Mailed notice

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 20 of 33

06/29/2009 08/05/2009 08/05/2009
08/07/2009 08/11/2009
08/26/2009
09/29/2009 09/29/2009 09/30/2009 09/30/2009 10/06/2009
10/30/2009 10/30/2009 10/30/2009 11/02/2009 12/14/2009
12/14/2009

(rp, ) (Entered: 06/22/2009)
132 NOTICE by Kimberly L. Borowicz of Change of Address for Edward B. Mullen III and Kenneth M. Walden (Borowicz, Kimberly) (Entered: 06/29/2009)
133 MOTION by Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves for extension of time to complete discovery to October 30, 2009 (Libowsky, Stephen) (Entered: 08/05/2009)
134 NOTICE by Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves re MOTION by Plaintiffs Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves for extension of time to complete discovery to October 30, 2009 133 (Libowsky, Stephen) (Entered: 08/05/2009)
135 NOTICE of Motion by Stephen David Libowsky for presentment of motion for extension of time to complete discovery 133 before Honorable Maria Valdez on 8/11/2009 at 09:30 AM. (Libowsky, Stephen) (Entered: 08/07/2009)
136 MINUTE entry before the Honorable Maria Valdez: Magistrate Judge Status and motion hearing held on 8/11/2009. Plaintiff's motion for extension of time to complete discovery 133 is granted. Non−expert discovery will close on 10/30/2009. Cut−off date for designation of plaintiffs' and defendants' initial trial expert(s) is 2/1/2010; reports of rebuttal expert(s), if any due by 4/2/2010. All expert discovery will be completed by 6/30/2010. Court inquire about settlement. Status hearing continued to 10/6/2009 at 09:30 a.m.Mailed notice (yp, ) (Entered: 08/13/2009)
137 MINUTE entry before the Honorable Joan H. Lefkow: Plaintiffs' motion for leave to amend the complaint 99 is granted. Additionally, pursuant to Fed. R. Civ. P. 25(d), Governor Pat Quinn is substituted for Rod R. Blagojevich as a defendant. [For further details see minute order.] Mailed notice (td, ) (Entered: 08/27/2009)
138 FIRST AMENDED complaint by Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves against Pat Quinn, Carol L Adams, Barry S Maram, Eric E Whitaker (Borowicz, Kimberly) (Entered: 09/29/2009)
139 FIRST AMENDED complaint by Kenya Lyles, Dwight Scott, Lenil Colbert, Constance Gray, Ernest Reeves against Charles D. Johnson, Damon T. Arnold, Pat Quinn, Carol L Adams, Barry S Maram (Borowicz, Kimberly) (Entered: 09/29/2009)
140 ANSWER to amended complaint by Pat Quinn(Stratton, Brent) (Entered: 09/30/2009)
141 SUMMONS Issued as to Defendant Charles D. Johnson. (td, ) (Entered: 10/01/2009)
142 MINUTE entry before the Honorable Maria Valdez:Magistrate Judge Status hearing held on 10/6/2009. Non−expert discovery will close on 1/28/10. Cut−off date for designation of plaintiffs' and defendants' initial trial expert(s) is 5/3/10; reports of rebuttal expert(s), if any due by 7/1/10. All expert discovery will be completed by 9/28/10. This is the final extension. Status hearing continued to 1/5/2010 at 09:30 a.m. Mailed notice (yp, ) (Entered: 10/08/2009)
143 ATTORNEY Appearance for Defendant Charles D. Johnson by Andrew Laurence Dryjanski (Dryjanski, Andrew) (Entered: 10/30/2009)
144 ANSWER to amended complaint by Charles D. Johnson(Dryjanski, Andrew) (Entered: 10/30/2009)
145 NOTICE by Charles D. Johnson re answer to amended complaint 144 (Dryjanski, Andrew) (Entered: 10/30/2009)
146 ATTORNEY Appearance for Defendant Charles D. Johnson by Brent Douglas Stratton (Stratton, Brent) (Entered: 11/02/2009)
147 MOTION by Defendants Carol L Adams, Damon T. Arnold, Charles D. Johnson, Barry S Maram, Pat Quinn, Eric E Whitaker for protective order Agreed Addendum to Protective Order (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Dryjanski, Andrew) (Entered: 12/14/2009)
148 Agreed NOTICE of Motion by Andrew Laurence Dryjanski for presentment of motion for protective order 147 before Honorable Joan H. Lefkow on 12/17/2009 at 09:30

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 21 of 33

12/14/2009 12/17/2009 12/17/2009 01/05/2010 02/19/2010 02/19/2010 02/25/2010 03/09/2010 03/30/2010 04/28/2010
05/07/2010
05/10/2010 05/17/2010
06/07/2010

AM. (Dryjanski, Andrew) (Entered: 12/14/2009)
149 Amended Agreed NOTICE of Motion by Andrew Laurence Dryjanski for presentment of motion for protective order 147 before Honorable Joan H. Lefkow on 12/17/2009 at 08:30 AM. (Dryjanski, Andrew) (Entered: 12/14/2009)
150 MINUTE entry before Honorable Joan H. Lefkow: Defendants' agreed motion for agreed addendum to agreed protective order 147 is granted. [For further details see separate order(s).] Mailed notice (td, ) (Entered: 12/22/2009)
151 AGREED Addendum to the February 5, 2008 Agreed Protective Order Signed by the Honorable Joan H. Lefkow on 12/17/2009. (td, ) (Entered: 12/22/2009)
152 MINUTE entry before Honorable Maria Valdez:Magistrate Judge Status hearing held on 1/5/2010 and continued to 3/9/10 at 9:30 a.m. Non expert discovery closed by 3/31/2010. Court inquire about settlement. Mailed notice (yp, ) (Entered: 01/05/2010)
153 MOTION by counsel for Plaintiffs Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott to withdraw as attorney (Barry, Angela) (Entered: 02/19/2010)
154 NOTICE of Motion by Angela Mary Barry for presentment of motion to withdraw as attorney 153 before Honorable Joan H. Lefkow on 2/25/2010 at 09:30 AM. (Barry, Angela) (Entered: 02/19/2010)
155 MINUTE entry before Honorable Joan H. Lefkow: Motion of Angela M. Barry for leave to withdraw her appearance on behalf of plaintiffs 153 is granted. Mailed notice (tc, ) (Entered: 03/01/2010)
156 MINUTE entry before Honorable Maria Valdez:Magistrate Judge Status hearing held on 3/9/2010 and continued to 3/30/2010 at 09:30 AM. on report of settlement. Mailed notice (yp, ) (Entered: 03/11/2010)
157 MINUTE entry before Honorable Maria Valdez:Magistrate Judge Status hearing held on 3/30/2010. Discovery is extended to closed by 4/30/2010. Status hearing set for 4/28/2010 at 09:30 AM.Mailed notice (yp, ) (Entered: 03/30/2010)
158 MINUTE entry before Honorable Maria Valdez:Magistrate Judge Status hearing held on 4/28/2010. Fact discovery to close by 7/15/10. Exchange certificate of completeness of document discovery by 6/30/10.Initial expert reports by 9/15/10. Any rebuttal reports by 10/15/10. All experts deposition by 11/15/10. The Court will maintain the District Court's Daubert motion schedule. Status hearing continued to 6/24/2010 at 09:30 AM.Mailed notice (yp, ) (Entered: 04/29/2010)
160 EXECUTIVE COMMITTEE ORDER:Case referred to the Honorable Jeffrey T. Gilbert. It appearing that Jeffrey T. Gilbert has been appointed as a United States Magistrate Judge for the Northern District of Illinois, and It further appearing that Internal Operating Procedure 17(a) provides for the creation of an initial calendar for a newly−appointed magistrate judge; therefore It is hereby ordered that the attached list of civil consent cases and civil referrals be and they are hereby reassigned to form the initial calendar of the Honorable Jeffrey T. Gilbert. Signed by Executive Committee on 5/7/10.(kmt, ) (Entered: 05/10/2010)
159 MINUTE entry before Honorable Maria Valdez: Pursuant to Order of the Executive Committee dated 5/7/10, status hearing set for 6/24/10 before Judge Valdez is hereby stricken. Parties will be advised of the next status by electronic notice. Mailed notice (yp, ) (Entered: 05/10/2010)
161 MINUTE entry before Honorable Jeffrey T. Gilbert: This case has been reassigned to Magistrate Judge Gilbert. Status hearing set for 6/15/2010 at 9:45 a.m. in Courtroom 1386. Parties shall deliver a copy of the initial status report to chambers, Room 1366, five business days before the initial status hearing. The parties are directed to review and to comply with Judge Gilbert's standing order for initial status report. Copies are available in chambers or through Judge Gilbert's web page at www.ilnd.uscourts.gov. Mailed notice (ep, ) (Entered: 05/17/2010)
162 STATUS Report Joint Status Report by Carol L Adams, Damon T. Arnold, Lenil Colbert, Constance Gray, Charles D. Johnson, Kenya Lyles, Barry S Maram, Pat

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 22 of 33

06/11/2010 06/17/2010
06/25/2010 06/25/2010 06/29/2010
08/13/2010 08/13/2010 09/01/2010
10/04/2010 10/13/2010 10/20/2010 10/20/2010

Quinn, Ernest Reeves, Dwight Scott, Eric E Whitaker (Libowsky, Stephen) (Entered: 06/07/2010)
163 MINUTE entry before Honorable Jeffrey T. Gilbert: Status hearing set for 6/15/2010 at 9:45 a.m. is stricken pending further order of the Court. Mailed notice (ep, ) (Entered: 06/11/2010)
164 EXECUTIVE COMMITTEE ORDER: It appearing that on May 7, 2010, a referral in 07 C 4737, Colbert, et al. v. Blagojevich, et al., was transferred to the initial calendar of Magistrate Judge Jeffrey T. Gilbert from Magistrate Judge Maria Valdez; and It further appearing that Magistrate Judge Gilbert has recused himself from the referral in 07 C 4737; therefore It is hereby ordered, pursuant to the Court's procedures for the formation of the initial calendar of a magistrate judge, that the Clerk of Court is to return the referral in 07 C 4737, Colbert, et al. v. Blagojevich, et al., to the calendar of Magistrate Judge Valdez; and It is further ordered, pursuant to the initial calendar procedures, that the referral pending before Magistrate Judge Valdez in 09 C 6648, Edwards v. Potter, be transferred to Magistrate Judge Gilbert as a replacement for the case in which a recusal was entered. Signed by Executive Committee on 6/17/10. (tc, ) (Entered: 06/24/2010)
165 MOTION by Defendants Carol L Adams, Damon T. Arnold, Charles D. Johnson, Barry S Maram, Pat Quinn, Eric E Whitaker, Plaintiffs Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott for extension of time to complete discovery and to suspend all scheduled dates. (Libowsky, Stephen) (Entered: 06/25/2010)
166 NOTICE of Motion by Stephen David Libowsky for presentment of motion for extension of time to complete discovery, 165 before Honorable Maria Valdez on 6/30/2010 at 09:45 AM. (Libowsky, Stephen) (Entered: 06/25/2010)
167 MINUTE entry before Honorable Maria Valdez: Parties joint motion for extension of time to complete discovery and to suspend all scheduled dates 165 is granted. All previous dates as stated on the motion are hereby suspended until further order of the Court. Status hearing set for 8/24/2010 at 09:30 AM. on report of potential settlement. Presentment date of 6/30/10 on said motion is stricken. Mailed notice (yp, ) (Entered: 06/29/2010)
168 MINUTE entry before Honorable Maria Valdez: On Court's own motion, status hearing set for 8/24/10 is hereby stricken and reset for 9/1/2010 at 09:30 AM. on report of settlement.Mailed notice (yp, ) (Entered: 08/13/2010)
169 MINUTE entry before Honorable Maria Valdez: Minute entry dated 8/13/10 document number 168 is vacated. Order to read as follows: "On Court's own motion, status hearing set for 8/24/10 is hereby stricken and reset for 9/1/2010 at 09:30 AM. on report of settlement discussions."Mailed notice (yp, ) (Entered: 08/13/2010)
170 MINUTE entry before Honorable Maria Valdez:Magistrate Judge Status hearing held on 9/1/2010. Settlement Conference set for 10/4/2010 at 02:00 PM. Judge Valdez requires full compliance with the Court's Standing Order of Settlement Conference found on the Judge's website available at www.ilnd.uscourts.gov. Because of the volume of settlement conferences conducted by Judge Valdez, once a settlement conference date has been agreed upon, no further continuances will be granted without a motion showing extreme hardship. Mailed notice (yp, ) (Entered: 09/01/2010)
171 MINUTE entry before Honorable Maria Valdez:Settlement conference held on 10/4/2010. Status hearing set for 10/14/2010 at 09:30 a.m. on settlement conference setting. Mailed notice (yp, ) (Entered: 10/06/2010)
172 MINUTE entry before Honorable Maria Valdez: On Court's own motion, status set for 10/14/2010 is hereby stricken and reset for 10/20/2010 at 09:30 AM.Mailed notice (yp, ) (Entered: 10/13/2010)
173 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable Maria Valdez for the purpose of holding proceedings related to: settlement conference.(mad, )Mailed notice. (Entered: 10/20/2010)
174 MINUTE entry before Honorable Maria Valdez:Magistrate Judge Status hearing held on 10/20/2010. Continued Settlement Conference set for 11/8/2010 at 02:30 PM. Mailed notice (yp, ) (Entered: 10/20/2010)

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 23 of 33

11/08/2010
01/07/2011
01/10/2011 01/10/2011 01/13/2011 01/26/2011 01/31/2011 02/24/2011 03/24/2011 04/12/2011 04/20/2011
04/21/2011 05/19/2011 05/27/2011 05/27/2011 05/31/2011
06/23/2011

175 MINUTE entry before Honorable Maria Valdez:Settlement conference held on 11/8/2010. The Defendant to provide the information requested to the Plaintiffs by November 22, 2010. Plaintiffs to provide a written response to Defendants' position by December 6, 2010. Parties to meet in person to discuss the respective proposals by December 23, 2010. Settlement Conference continued to January 7, 2011 at 2:00 p.m. Mailed notice (yp, ) (Entered: 11/08/2010)
176 MINUTE entry before Honorable Maria Valdez:Settlement conference held on 1/7/2011. Parties advise that they can conclude settlement discussions without any further assistance from this Court. Referral to remain open until February 28, 2011.Mailed notice (yp, ) (Entered: 01/07/2011)
177 MOTION by Plaintiffs Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott for leave to appear as Additional Counsel Unopposedfor Class Plaintiffs (Libowsky, Stephen) Modified on 1/11/2011 (kj, ). (Entered: 01/10/2011)
178 NOTICE of Motion by Stephen David Libowsky for presentment of motion for leave to appear 177 before Honorable Joan H. Lefkow on 1/13/2011 at 08:30 AM. (Libowsky, Stephen) (Entered: 01/10/2011)
179 MINUTE entry before Honorable Joan H. Lefkow: Plaintiffs motion for leave to enter an appearance of Patricia Werner as additional counsel for plaintiffs 177 is granted. Mailed notice. (kj, ) (Entered: 01/19/2011)
180 ATTORNEY Appearance for Plaintiffs Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott by Patricia A. Werner (Werner, Patricia) (Entered: 01/26/2011)
181 MINUTE entry before Honorable Joan H. Lefkow: Status hearing set for 2/24/2011 at 08:30 AM for report on settlement.Mailed notice (mad, ) (Entered: 01/31/2011)
182 MINUTE entry before Honorable Joan H. Lefkow:Status hearing held on 2/24/2011 and continued to 3/24/2011 at 08:30 AM for report on settlement.Mailed notice (mad, ) (Entered: 02/24/2011)
183 MINUTE entry before Honorable Joan H. Lefkow:Status hearing held on 3/24/2011 and continued to 4/21/2011 at 08:30 AM.Mailed notice (mad, ) (Entered: 03/25/2011)
184 ATTORNEY Appearance for Plaintiffs Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott by Celiza Patricia Braganca (Braganca, Celiza) (Entered: 04/12/2011)
186 MINUTE entry before Honorable Joan H. Lefkow. The clerk is directed to remove former Governor of the State of Illinois, Rod Blagojevich as a defendant and substitute in his stead the current Governor, Pat Quinn. Mailed notice (lw, ). (Entered: 04/21/2011)
185 MINUTE entry before Honorable Joan H. Lefkow:Status hearing held on 4/21/2011 and continued to 5/19/2011 at 09:00 AM.Mailed notice (mad, ) (Entered: 04/21/2011)
187 MINUTE entry before Honorable Joan H. Lefkow:Status hearing held on 5/19/2011 and continued to 7/5/2011 at 08:30 AM.Mailed notice (mad, ) (Entered: 05/20/2011)
188 MOTION by counsel for Defendants Carol L Adams, Barry S Maram, Pat Quinn to withdraw as attorney Peter C. Koch (Koch, Peter) (Entered: 05/27/2011)
189 NOTICE of Motion by Peter Chadwell Koch for presentment of motion to withdraw as attorney 188 before Honorable Joan H. Lefkow on 6/7/2011 at 08:30 AM. (Koch, Peter) (Entered: 05/27/2011)
190 MINUTE entry before Honorable Joan H. Lefkow. Motion of Peter C. Koch to withdraw as counsel of record for defendants Quinn, Adams, and Maram 188 is granted. Noticed motion date of 6/7/2011 is stricken. Mailed notice (lw, ). (Entered: 06/01/2011)
191 MINUTE entry before Honorable Maria Valdez: On Court's own motion, Status hearing set for 7/12/2011 at 09:30 AM. in Courtroom 1300 on report of settlement. Mailed notice (yp, ) (Entered: 06/23/2011)

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 24 of 33

07/01/2011 07/12/2011
07/25/2011 08/09/2011 08/29/2011 08/29/2011 08/30/2011
08/30/2011
08/30/2011 09/08/2011 11/30/2011 12/06/2011 12/09/2011
12/09/2011

192 MINUTE entry before Honorable Joan H. Lefkow: Status hearing of 7/5/2011 reset for 7/26/2011 at 08:30 AM.Mailed notice (mad, ) (Entered: 07/01/2011)
193 MINUTE entry before Honorable Maria Valdez:Magistrate Judge Status hearing held on 7/12/2011. Parties informed the Court that settlement documents are being finalized. Parties feel there is no reason to keep the referral open. Therefore, all matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Judge Honorable Maria Valdez no longer referred to the case.Mailed notice (yp, ) (Entered: 07/12/2011)
194 MINUTE entry before Honorable Joan H. Lefkow: Status hearing of 7/26/2011 stricken and reset for 8/9/2011 at 09:00 AM by agreement.Mailed and telephoned notice (mad, ) (Entered: 07/25/2011)
195 MINUTE entry before Honorable Joan H. Lefkow:Status hearing held on 8/9/2011 and continued to 8/30/2011 at 08:30 AM.Mailed notice (mad, ) (Entered: 08/09/2011)
196 MOTION by Plaintiffs Lenil Colbert, Kenya Lyles, Ernest Reeves to approve consent judgment Joint Motion for Preliminary Approval of Consent Decree and Approval of Notice Plan. (Attachments: # 1 Exhibit A−C)(Libowsky, Stephen) (Entered: 08/29/2011)
197 MEMORANDUM by Lenil Colbert, Kenya Lyles, Ernest Reeves in support of motion to approve consent judgment 196 Memorandum in Support of Joint Motion for Preliminary Approval of Consent Decree and Approval of Notice Plan. (Libowsky, Stephen) (Entered: 08/29/2011)
198 MOTION by Plaintiffs Lenil Colbert, Kenya Lyles, Ernest Reeves to amend/correct MOTION by Plaintiffs Lenil Colbert, Kenya Lyles, Ernest Reeves to approve consent judgment Joint Motion for Preliminary Approval of Consent Decree and Approval of Notice Plan. 196 (Attachments: # 1 Exhibit Ex. B−1 Amended Notice, # 2 Exhibit Ex. B−2 Amended Notice, # 3 Exhibit Ex. C Amended Proposed Order)(Braganca, Celiza) (Entered: 08/30/2011)
199 MINUTE entry before Honorable Joan H. Lefkow. Motion hearing held. Joint motion for preliminary approval of consent decree and approval of notice plan 196 is granted. Enter Order. An in−court fairness hearing regarding the fairness, reasonableness and adequacy of the proposed Decree is set for December 20, 2011, at 9:00 a.m. All Class Members, guardians or others who wish to comment on or object to the proposed Decree, shall do so by November 22, 2011. [For further details see minute order.] Mailed notice (lw, ). (Entered: 09/06/2011)
200 ORDER. Signed by the Honorable Joan H. Lefkow on 8/30/2011. (lw, ) (Entered: 09/06/2011)
201 NOTICE OF PROPOSED CLASS action settlement and hearing. Signed by the Honorable Joan H. Lefkow on 9/8/2011. (lw, ) (Entered: 09/13/2011)
202 MINUTE entry before Honorable Joan H. Lefkow: Status hearing set for 12/6/2011 at 08:30 AM.Mailed notice (mad, ) (Entered: 11/30/2011)
203 MINUTE entry before Honorable Joan H. Lefkow: Status hearing held on 12/6/2011. Fairness hearing set for 12/20/2011 at 9:00 a.m. to stand. Mailed notice by judge's staff. (srb,) (Entered: 12/06/2011)
204 AGREED MOTION by Defendants Carol L Adams, Damon T. Arnold, Charles D. Johnson, Barry S Maram, Pat Quinn, Eric E Whitaker, Plaintiffs Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott for approval of consent decree(Werner, Patricia) (Docket Text modified by Clerks' Office.) (Entered: 12/09/2011)
205 MEMORANDUM by Carol L Adams, Damon T. Arnold, Lenil Colbert, Constance Gray, Charles D. Johnson, Kenya Lyles, Barry S Maram, Pat Quinn, Ernest Reeves, Dwight Scott, Eric E Whitaker in support of motion to agreed motion to approve consent decree 204 and Joint Submission in Connection with the December 20, 2011 Fairness Hearing (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Text of Proposed Order)(Werner, Patricia) (Docket Text modified by Clerks' Office.) (Entered: 12/09/2011)

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 25 of 33

12/09/2011 12/12/2011
12/20/2011
12/21/2011 12/21/2011 01/05/2012 01/05/2012 01/06/2012 01/10/2012
01/10/2012 01/12/2012 01/12/2012 01/17/2012 01/30/2012
01/30/2012

206 NOTICE of Motion by Patricia A. Werner for presentment of motion for miscellaneous relief 204 before Honorable Joan H. Lefkow on 12/20/2011 at 09:00 AM. (Werner, Patricia) (Entered: 12/09/2011)
207 AMENDED JOINT SUBMISSION by Carol L Adams, Damon T. Arnold, Lenil Colbert, Constance Gray, Charles D. Johnson, Kenya Lyles, Barry S Maram, Pat Quinn, Ernest Reeves, Dwight Scott, Eric E Whitaker in connection with the December 20, 2011 Fairness Hearing and MEMORANDUM in support of motion for miscellaneous relief 204 Amended Memorandum (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Text of Proposed Order)(Werner, Patricia) (Docket Text modified by Clerks' Office.) (Entered: 12/12/2011)
208 MINUTE entry before Honorable Joan H. Lefkow: Fairness hearing held on 12/20/2011. Agreed Motion for approval of consent decree 204 is granted. The Court hereby approves consent decree and enters order of approval and consent decree order. All pending motions 198 are moot. Civil case terminated. Draft orders to follow. Mailed notice by judge's staff. (srb,) (Entered: 12/22/2011)
209 MINUTE entry before Honorable Joan H. Lefkow. Enter Order of approval of Consent Decree and Enter Consent Decree. [For further detail see minute order.] Mailed notice (lw, ). (Entered: 12/23/2011)
210 ORDER. Signed by the Honorable Joan H. Lefkow on 12/21/2011. (lw, ) (Entered: 12/23/2011)
211 MOTION by Plaintiff Lenil Colbert for judgment Agreed Motion for Entry of Judgment (Attachments: # 1 Text of Proposed Order)(Braganca, Celiza) (Entered: 01/05/2012)
212 MOTION by Plaintiff Lenil Colbert for judgment Notice of Agreed Motion for Entry of Judgment (Braganca, Celiza) (Entered: 01/05/2012)
213 NOTICE of Motion by Celiza Patricia Braganca for presentment of motion for judgment 211 before Honorable Joan H. Lefkow on 1/12/2012 at 08:30 AM. (Braganca, Celiza) (Entered: 01/06/2012)
214 JOINT MOTION by Defendants Carol L Adams, Damon T. Arnold, Charles D. Johnson, Barry S Maram, Pat Quinn, Eric E Whitaker, Plaintiffs Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott for extension of time for monitor recommendation (Attachments: # 1 Text of Proposed Order)(Werner, Patricia) (Docket Text modified by Clerks' Office.) (Entered: 01/10/2012)
215 NOTICE of Motion by Patricia A. Werner for presentment of extension of time, 214 before Honorable Joan H. Lefkow on 1/17/2012 at 08:30 AM. (Werner, Patricia) (Entered: 01/10/2012)
216 MINUTE entry before Honorable Joan H. Lefkow. Joint agreed motion for the entry of judgment 211 is granted. Enter Order to Enter Judgment. [For further detail see minute order.] Mailed notice (lw, ). (Entered: 01/17/2012)
217 ORDER to Enter Judgment. Signed by the Honorable Joan H. Lefkow on 1/12/2012. (lw, ) (Entered: 01/17/2012)
218 MINUTE entry before Honorable Joan H. Lefkow:Joint motion for extension of time for monitor recommendation 214 is granted. The parties are to submit their recommendation(s) for a monitor by 1/27/2012.Mailed notice (mad, ) (Entered: 01/18/2012)
219 JOINT MOTION by Defendants Carol L Adams, Damon T. Arnold, Charles D. Johnson, Barry S Maram, Pat Quinn, Eric E Whitaker, Plaintiffs Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott to Appoint Monitor (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Werner, Patricia) (Docket Text modified by Clerks' Office.) (Entered: 01/30/2012)
220 NOTICE of Motion by Patricia A. Werner for presentment of motion for miscellaneous relief, 219 before Honorable Joan H. Lefkow on 2/16/2012 at 08:30 AM. (Werner, Patricia) (Entered: 01/30/2012)

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 26 of 33

02/16/2012 09/20/2012 09/20/2012 09/21/2012 09/21/2012 09/27/2012
10/22/2012 10/22/2012 10/23/2012
11/08/2012 11/08/2012 11/08/2012 11/13/2012 11/28/2012 11/28/2012 11/27/2013 02/14/2014 03/05/2014

221 MINUTE entry before Honorable Joan H. Lefkow:Joint motion to appoint Dennis Jones as monitor to the Court in this case 219 is granted.Mailed notice (mad, ) (Entered: 02/16/2012)
222 MOTION by counsel for Plaintiffs Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott to withdraw as attorney (Werner, Patricia) (Entered: 09/20/2012)
223 NOTICE of Motion by Patricia A. Werner for presentment of motion to withdraw as attorney 222 before Honorable Joan H. Lefkow on 9/27/2012 at 08:30 AM. (Werner, Patricia) (Entered: 09/20/2012)
224 MOTION by Plaintiff Lenil Colbert for extension of time Joint Motion for Extension of Time to File the Implementation Plan (Libowsky, Stephen) (Entered: 09/21/2012)
225 NOTICE of Motion by Stephen David Libowsky for presentment of extension of time 224 before Honorable Joan H. Lefkow on 9/27/2012 at 08:30 AM. (Libowsky, Stephen) (Entered: 09/21/2012)
226 MINUTE entry before Honorable Joan H. Lefkow: Motion of Celiza P. Braganca, Kimberly L. Borowicz, Kenneth M. Walden, and Patricia A. Werner, (collectively, Access Living Attorneys) to withdraw as class counsel 222 is granted. Joint motion for extension of time to 10/22/2012 to file a final implementation plan 224 is granted. Mailed notice (pcs, ) (Entered: 09/28/2012)
227 MOTION by Defendants Pat Quinn, Michelle R.B. Saddler, Julie Hamos, John Holton, LaMar Hasbrouck for extension of time to file Implementation Plan (Stratton, Brent) (Entered: 10/22/2012)
228 NOTICE of Motion by Brent Douglas Stratton for presentment of extension of time 227 before Honorable Joan H. Lefkow on 10/25/2012 at 08:30 AM. (Stratton, Brent) (Entered: 10/22/2012)
229 MINUTE entry before Honorable Joan H. Lefkow: Parties' Joint Motion for extension of time to file the implementation plan 227 is granted to and including 11/5/2012. No appearance necessary on 10/25/2012. Mailed notice by judge's staff. (srb,) (Entered: 10/24/2012)
230 Implementation Plan by Julie Hamos, LaMar Hasbrouck, John Holton, Pat Quinn, Michelle R.B. Saddler (Stratton, Brent) (Entered: 11/08/2012)
231 MOTION by Defendants Julie Hamos, LaMar Hasbrouck, John Holton, Pat Quinn, Michelle R.B. SaddlerRegarding Implementation Plan (Attachments: # 1 Exhibit 1)(Stratton, Brent) (Entered: 11/08/2012)
232 NOTICE of Motion by Brent Douglas Stratton for presentment of motion for miscellaneous relief 231 before Honorable Joan H. Lefkow on 11/13/2012 at 08:30 AM. (Stratton, Brent) (Entered: 11/08/2012)
233 MINUTE entry before Honorable Joan H. Lefkow:Agreed motion to enter order regarding implementation plan 231 is granted. Mailed notice (ldg, ) (Entered: 11/28/2012)
234 MINUTE entry before Honorable Joan H. Lefkow: Enter Order regarding implementation plan. Mailed notice. (np, ) (Entered: 12/03/2012)
235 ORDER signed by the Honorable Joan H. Lefkow on 11/28/2012.(np, ) (Entered: 12/03/2012)
236 COURT Monitor Report to the Court by Julie Hamos, LaMar Hasbrouck, John Holton, Pat Quinn, Michelle R.B. Saddler. (Stratton, Brent) (Entered: 11/27/2013)
237 MINUTE entry before the Honorable Joan H. Lefkow: Status conference is set for 3/6/2014 at 03:00 PM.Mailed and telephoned notice (mad, ) (Entered: 02/14/2014)
238 ATTORNEY Appearance for Plaintiffs Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott by Barry Charlton Taylor (Taylor, Barry) (Entered: 03/05/2014)

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 27 of 33

03/06/2014 06/03/2014 06/16/2014 06/16/2014 06/18/2014 07/22/2014 07/22/2014 07/24/2014
07/24/2014 08/20/2014 11/26/2014 12/11/2014 01/06/2015
01/06/2015 01/15/2015 04/07/2015 05/28/2015 06/04/2015 06/08/2015

239 MINUTE entry before the Honorable Joan H. Lefkow:Status conference held off the record on 3/6/2014. Status conference continued to 7/24/2014 at 10:00 AM.Mailed notice (mad, ) (Entered: 03/06/2014)
240 Court Monitor's Interim Report by Julie Hamos, LaMar Hasbrouck, John Holton, Pat Quinn, Michelle R.B. Saddler (Stratton, Brent) (Entered: 06/03/2014)
241 MOTION by counsel for Plaintiff Lenil Colbert to withdraw as attorney Karen I. Ward Motion for Leave to Withdraw (Ward, Karen) (Entered: 06/16/2014)
242 NOTICE of Motion by Karen I. Ward for presentment of motion to withdraw as attorney 241 before Honorable Joan H. Lefkow on 6/19/2014 at 11:00 AM. (Ward, Karen) (Entered: 06/16/2014)
243 ORDER: Motion of Karen I. Ward for leave to withdraw as class counsel in this case 241 is granted. Signed by the Honorable Joan H. Lefkow on June 18, 2014. Mailed notice(mr, ) (Entered: 06/19/2014)
244 MOTION by Defendants Julie Hamos, LaMar Hasbrouck, John Holton, Pat Quinn, Michelle R.B. Saddler to amend/correct order 210 Consent Decree (Attachments: # 1 Exhibit Proposed Order)(Stratton, Brent) (Entered: 07/22/2014)
245 NOTICE of Motion by Brent Douglas Stratton for presentment of motion to amend/correct, motion for relief 244 before Honorable Joan H. Lefkow on 7/24/2014 at 10:00 AM. (Stratton, Brent) (Entered: 07/22/2014)
246 MINUTE entry before the Honorable Joan H. Lefkow:Status hearing held off the record on 7/24/2014. Status conference set for 12/11/2014 at 02:00 PM. Agreed motion of Class Plaintiffs and Defendants to amend consent decree 244 is granted. Mailed notice (mad, ) (Entered: 07/24/2014)
247 ORDER Signed by the Honorable Joan H. Lefkow on 7/24/2014 granting agreed motion of Class Plaintiffs and Defendants to amend consent decree.Mailed notice(mad, ) (Entered: 07/24/2014)
248 Implementation Plan by Julie Hamos, John Holton, Pat Quinn, Michelle R.B. Saddler (Stratton, Brent) (Entered: 08/20/2014)
249 Court Monitor's Annual Report by Julie Hamos, LaMar Hasbrouck, John Holton, Pat Quinn, Michelle R.B. Saddler (Stratton, Brent) (Entered: 11/26/2014)
250 MINUTE entry before the Honorable Joan H. Lefkow:Status conference held off the record on 12/11/2014. Status conference set for 4/9/2015 at 02:00 PM.Mailed notice (mad, ) (Entered: 12/12/2014)
251 MOTION by counsel for Defendants Carol L Adams, Damon T. Arnold, Julie Hamos, LaMar Hasbrouck, John Holton, Charles D. Johnson, Barry S Maram, Pat Quinn, Michelle R.B. Saddler, Eric E Whitaker to withdraw as attorney Andrew L. Dryjanski (Dryjanski, Andrew) (Entered: 01/06/2015)
252 NOTICE of Motion by Andrew Laurence Dryjanski for presentment of motion to withdraw as attorney, 251 before Honorable Joan H. Lefkow on 1/15/2015 at 11:00 AM. (Dryjanski, Andrew) (Entered: 01/06/2015)
253 ORDER: Defendants' motion to withdraw Andrew L. Dryjanski as counsel of record 251 is granted. Signed by the Honorable Joan H. Lefkow on January 15, 2015. Mailed notice(mr, ) (Entered: 01/20/2015)
254 MINUTE entry before the Honorable Joan H. Lefkow: Status conference of 4/9/2015 is reset for 6/8/2015 at 02:00 PM.Mailed and telephoned notice (mad, ) (Entered: 04/07/2015)
255 Monitor's Interim Report by John Holton (Stratton, Brent) (Entered: 05/28/2015)
256 MINUTE entry before the Honorable Joan H. Lefkow:The status conference of 6/8/2015 will be held in Courtroom 2201 at 2:00 p.m.Mailed notice (mad, ) (Entered: 06/04/2015)
257 MINUTE entry before the Honorable Joan H. Lefkow:Status conference held off the record on 6/8/2015. Monitor's report to the court is to be filed by 1/29/2016. Status

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 28 of 33

06/30/2015
06/30/2015 06/30/2015
06/30/2015 07/02/2015 10/06/2015 11/25/2015 11/25/2015 12/01/2015 12/01/2015 12/03/2015 01/29/2016 02/17/2016 02/17/2016 05/18/2016 05/26/2016

conference is set for 2/18/2016 at 02:00 PM. The time requirements to attempt to agree on and to file one or more Cost Neutral Plans as set forth in Sections VI.C.4 and VI.C.5 of the Consent Decree are hereby vacated, and new dates shall be discussed and set at the status hearing scheduled to occur on 2/18/2016.Mailed notice (mad, ) (Entered: 06/08/2015)
258 MOTION by Plaintiffs Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott for order to Maintain Compliance with Consent Decree (JOINT EMERGENCY MOTION) (Attachments: # 1 Exhibit 1 − Proposed Agreed Order)(Wolf, Benjamin) (Entered: 06/30/2015)
259 NOTICE of Motion by Benjamin S. Wolf for presentment of motion for order, 258 before Honorable Joan H. Lefkow on 6/30/2015 at 02:00 PM. (Wolf, Benjamin) (Entered: 06/30/2015)
260 MINUTE entry before the Honorable Joan H. Lefkow:Motion hearing held on 6/30/2015. Joint emergency motion for entry of agreed order 258 is granted. Enter Agreed Order To Maintain Compliance With Consent Decree. Mailed notice (mad, ) (Entered: 06/30/2015)
261 Agreed Order To Maintain Compliance With Consent Decree Signed by the Honorable Joan H. Lefkow on 6/30/2015:Mailed notice(mad, ) (Entered: 06/30/2015)
262 ORDER: The Clerk is directed to substitute Bruce Rauner for Pat Quinn as defendant in this case and to change the court's docket to reflect this change. Signed by the Honorable Joan H. Lefkow on 7/2/2015. Mailed notice (tt, ) (Entered: 07/06/2015)
263 ATTORNEY Appearance for Plaintiffs Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott by Claire E.W. Stewart (Stewart, Claire) (Entered: 10/06/2015)
264 MOTION by Plaintiffs Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott to amend/correct Agreed motion to amend consent decree (Attachments: # 1 Exhibit A)(Libowsky, Stephen) (Entered: 11/25/2015)
265 NOTICE of Motion by Stephen David Libowsky for presentment of motion to amend/correct 264 before Honorable Joan H. Lefkow on 12/2/2015 at 10:00 AM. (Libowsky, Stephen) (Entered: 11/25/2015)
266 MINUTE entry before the Honorable Joan H. Lefkow:Motion of Class Plaintiffs and Defendants to amend consent decree 264 is granted. Motion is stricken from the Court's call of 12/2/2015.Mailed notice (mad, ) (Entered: 12/01/2015)
267 ORDER Signed by the Honorable Joan H. Lefkow on 12/1/2015: Motion of Class Plaintiffs and Defendants to amend consent decree 264 granted.Mailed notice(mad, ) (Entered: 12/01/2015)
268 MINUTE entry before the Honorable Joan H. Lefkow:The Status Conference of 2/18/2016 is stricken and reset for 2/17/2016 at 02:00 PM.Mailed notice (mad, ) (Entered: 12/03/2015)
269 Court Monitor Annual Report by Bruce Rauner (Stratton, Brent) (Entered: 01/29/2016)
270 MINUTE entry before the Honorable Joan H. Lefkow:The time of the status conference on 2/17/2016 is reset to 11:00 AM.Mailed notice (mad, ) (Entered: 02/17/2016)
271 MINUTE entry before the Honorable Joan H. Lefkow:Status conference held off the record on 2/17/2016. Status conference set for 5/25/2016 at 11:00 AM.Mailed notice (mad, ) (Entered: 02/17/2016)
272 MINUTE entry before the Honorable Joan H. Lefkow: Status conference of 5/25/2016 stricken and reset for 6/2/2016 at 02:00 PM by agreement.Mailed and telephoned notice (mad, ) (Entered: 05/18/2016)
273 STATUS Report (JOINT) by Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott (Attachments: # 1 Exhibit 1 − BRG Report)(Wolf, Benjamin) (Entered: 05/26/2016)

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 29 of 33

06/02/2016 06/24/2016 06/24/2016 06/27/2016 06/27/2016 06/28/2016
06/28/2016 07/28/2016 08/25/2016
09/23/2016
09/23/2016 09/23/2016 09/23/2016 09/23/2016 09/26/2016
09/29/2016 11/16/2016

274 MINUTE entry before the Honorable Joan H. Lefkow:Status conference held and continued to 8/17/2016 at 02:00 PM.Mailed notice (jms, ) (Entered: 06/02/2016)
275 MOTION by Plaintiff Lenil Colbert for order (JOINT, AGREED) (Attachments: # 1 Exhibit 1 − Proposed Agreed Order)(Wolf, Benjamin) (Entered: 06/24/2016)
276 (JOINT, AGREED) NOTICE of Motion by Benjamin S. Wolf for presentment of motion for order 275 before Honorable Joan H. Lefkow on 6/29/2016 at 09:30 AM. (Wolf, Benjamin) (Entered: 06/24/2016)
277 MOTION by Plaintiff Lenil Colbert for order (CORRECTED, JOINT, AGREED) (Attachments: # 1 Exhibit 1 − Proposed Agreed Order)(Wolf, Benjamin) (Entered: 06/27/2016)
278 (JOINT, AGREED) NOTICE of Motion by Benjamin S. Wolf for presentment of motion for order 277 before Honorable Joan H. Lefkow on 6/29/2016 at 09:30 AM. (Wolf, Benjamin) (Entered: 06/27/2016)
279 MINUTE entry before the Honorable Joan H. Lefkow: Corrected Joint motion for entry of agreed order 277 is granted. Joint motion for entry of agreed order 275 is moot. Motions are stricken from the Court's call of 6/29/2016. Enter Agreed Order.Mailed notice (mad, ) (Entered: 06/28/2016)
280 AGREED ORDER to Maintain Compliance With Consent Decree Signed by the Honorable Joan H. Lefkow on 6/28/2016:Mailed notice(mad, ) (Entered: 06/28/2016)
281 MINUTE entry before the Honorable Joan H. Lefkow: Status conference of 8/17/2016 is stricken and reset for 8/25/2016 at 02:00 PM.Mailed and telephoned notice (mad, ) (Entered: 07/28/2016)
282 MINUTE entry before the Honorable Joan H. Lefkow:Status conference held on 8/25/2016, off the record, and continued to 9/29/2016 at 02:00 PM for possible hearing. Joint submission outlining issues and positions due by 9/15/2016.Mailed notice (mad, ) (Entered: 08/25/2016)
283 MOTION by Plaintiffs Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott MOTION FOR ENTRY OF CLASS PLAINTIFFS PROPOSED COST NEUTRAL PLAN (Attachments: # 1 Exhibit 1)(Libowsky, Stephen) (Entered: 09/23/2016)
284 NOTICE of Motion by Stephen David Libowsky for presentment of motion for miscellaneous relief 283 before Honorable Joan H. Lefkow on 9/29/2016 at 02:00 PM. (Libowsky, Stephen) (Entered: 09/23/2016)
285 ATTORNEY Appearance for Defendants Carol L Adams, Damon T. Arnold, Julie Hamos, LaMar Hasbrouck, John Holton, Charles D. Johnson, Barry S Maram, Bruce Rauner, Michelle R.B. Saddler by R. Douglas Rees (Rees, R.) (Entered: 09/23/2016)
286 MOTION by Defendant Bruce Rauneradoption and entry of defendants' plan (Attachments: # 1 Exhibit Defendants' Proposed Cost Neutral Plan)(Rees, R.) (Entered: 09/23/2016)
287 NOTICE of Motion by R. Douglas Rees for presentment of motion for miscellaneous relief 286 , motion for miscellaneous relief 283 before Honorable Joan H. Lefkow on 9/29/2016 at 02:00 PM. (Rees, R.) (Entered: 09/23/2016)
288 MOTION by Plaintiffs Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott MOTION FOR ENTRY OF CLASS PLAINTIFFS PROPOSED COST NEUTRAL PLAN (including inadvertently excluded pages from exhibits to docket no. 283). (Attachments: # 1 Exhibit 1)(Libowsky, Stephen) (Entered: 09/26/2016)
289 MINUTE entry before the Honorable Joan H. Lefkow:Hearing held on motions to modify consent decree 286 and 288 . Rulings entered on the record. The parties will draft a proposed order.Mailed notice (mad, ) (Entered: 09/30/2016)
290 ORDER APPROVING COST NEUTRAL PLAN Signed by the Honorable Joan H. Lefkow on 11/16/2016: Order entered pursuant to hearing and ruling on motions to modify consent decree 286 and 288 . (Attachments: # 1 Exhibit A − BRG Report, # 2 Exhibit B − Analysis of Transitioned Class Members (Report Exhibit), # 3 Exhibit C −

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 30 of 33

11/16/2016
12/02/2016 03/22/2017 05/12/2017 06/19/2017 06/19/2017 06/23/2017 06/23/2017 07/05/2017 07/06/2017 08/31/2017
09/01/2017 09/01/2017 09/07/2017
09/08/2017
09/08/2017

Analysis of Direct Costs Over Two Year Period, # 4 Exhibit D − Analysis of Transitioned Class Members (Total Costs), # 5 Exhibit E − Summary of Total Program Costs). Mailed notice(mad, ) (Entered: 11/16/2016)
291 NOTICE OF EMAIL NOTIFICATION FAILURE, for document # 290 sent to Attorney Karen Elaine Konieczny returned as: Unknown Address Error. Mailed to attorney Karen Elaine Konieczny a Letter re: bounce back email and a Notification of Change of Address form. Notices have been set to No. Counsel must email the Clerk's Office at Docketing_ILND@uscourts.gov when a Notification of Change of Address has been filed to ensure electronic notification is reset. (ek, ) (Entered: 11/17/2016)
292 MAIL RETURNED, for document # 291 sent to Karen Elaine Konieczny returned as undeliverable, return to sender. No new contact information received; however the document will be mailed a second time. (pk, ) (Entered: 12/05/2016)
293 Implementation Plan Phase 3 by Bruce Rauner (Stratton, Brent) (Entered: 03/22/2017)
294 Court Monitor Special Report by Bruce Rauner (Attachments: # 1 Exhibit Report to Court Monitor)(Stratton, Brent) (Entered: 05/12/2017)
295 MOTION by Plaintiff Lenil Colbert for order (JOINT MOTION FOR ENTRY OF AGREED ORDER) (Attachments: # 1 1 − 2016 Agreed Order to Maintain Compliance)(Wolf, Benjamin) (Entered: 06/19/2017)
296 NOTICE of Motion by Benjamin S. Wolf for presentment of motion for order 295 before Honorable Joan H. Lefkow on 6/28/2017 at 09:30 AM. (Wolf, Benjamin) (Entered: 06/19/2017)
297 MINUTE entry before the Honorable Joan H. Lefkow:Joint motion for entry of agreed order 295 is granted. Motion is stricken from the Court's call of 6/28/2017. Mailed notice (mad, ) (Entered: 06/23/2017)
298 Agreed Order to Maintain Compliance with Consent Decree Signed by the Honorable Joan H. Lefkow on 6/23/2017:Mailed notice(mad, ) (Entered: 06/23/2017)
299 NOTICE by Claire E.W. Stewart of Change of Address (Stewart, Claire) (Entered: 07/05/2017)
300 NOTICE by Benjamin S. Wolf of Change of Address (Wolf, Benjamin) (Entered: 07/06/2017)
301 MINUTE entry before the Honorable Joan H. Lefkow: Upon request of the parties, a status conference is set for 9/7/2017 at 11:00 AM. Parties are requested to submit a brief joint outline of topics to be discussed by 9/6/2017.Mailed and telephoned notice (mad, ) (Entered: 08/31/2017)
302 MOTION by Defendant Bruce Rauner to set a briefing schedule and a hearing date to select a new court monitor (Attachments: # 1 Exhibit Proposed Order)(Stratton, Brent) (Entered: 09/01/2017)
303 NOTICE of Motion by Brent Douglas Stratton for presentment of motion by filer to set a briefing schedule 302 before Honorable Joan H. Lefkow on 9/7/2017 at 11:00 AM. (Stratton, Brent) (Entered: 09/01/2017)
304 MINUTE entry before the Honorable Joan H. Lefkow:Motion hearing held on 9/7/2017. Joint motion to set a briefing schedule 302 is granted. The parties will submit their nominations for the next Court Monitor and any supporting materials on or before 5:00 p.m. on September 8, 2017, and will submit responses to each other's submissions on or before 5:00 p.m. on September 15, 2017. Status hearing held on 9/7/2017 and continued to 9/27/2017 at 11:00 AM.Mailed notice (mad, ) (Entered: 09/07/2017)
305 MEMORANDUM by Lenil Colbert PLAINTIFFS' MEMORANDUM IN SUPPORT OF THE APPOINTMENT OF GAIL HUTCHINGS AS COURT MONITOR IN WILLIAMS v. RAUNER AND COLBERT v. RAUNER (Attachments: # 1 Exhibit A and B)(Stewart, Claire) (Entered: 09/08/2017)
306 NOTICE by Lenil Colbert re memorandum 305 NOTICE OF FILING OF PLAINTIFFS' MEMORANDUM IN SUPPORT OF THE APPOINTMENT OF GAIL

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 31 of 33

09/08/2017 09/15/2017 09/15/2017 09/26/2017
10/30/2017 10/30/2017 11/07/2017
11/08/2017
11/16/2017 02/05/2018 02/06/2018
03/05/2018 03/05/2018 03/08/2018 03/08/2018
04/02/2018

HUTCHINGS AS COURT MONITOR IN WILLIAMS v. RAUNER AND COLBERT v. RAUNER (Stewart, Claire) (Entered: 09/08/2017)
307 Submission in support of nomination for court monitor by Bruce Rauner (Attachments: # 1 Exhibit Keith Schafer CV, # 2 Exhibit Daryl Plevy CV)(Stratton, Brent) (Entered: 09/08/2017)
308 RESPONSE by Defendant Bruce Rauner to memorandum 305 in support of the appointment of Gail Hutchings as court monitor (Stratton, Brent) (Entered: 09/15/2017)
309 REPLY by Plaintiff Lenil Colbert (Attachments: # 1 Exhibit 1)(Chung, Jin−Ho) (Entered: 09/15/2017)
310 ORDER Signed by the Honorable Joan H. Lefkow on 9/26/2017: Gail Hutchings is appointed Court Monitor to succeed the current Court Monitor, Denny Jones, when he concludes that role on September 30, 2017. The status hearing of September 27, 2017 is stricken and reset to November 21, 2017 at 11:15 a.m. See Statement.Mailed notice(mad, ) (Entered: 09/26/2017)
311 MOTION by Defendant Bruce Rauner to set reasonable rate for court monitor (Attachments: # 1 Exhibit A−F)(Stratton, Brent) (Entered: 10/30/2017)
312 NOTICE of Motion by Brent Douglas Stratton for presentment of motion for miscellaneous relief 311 before Honorable Joan H. Lefkow on 11/8/2017 at 09:30 AM. (Stratton, Brent) (Entered: 10/30/2017)
313 RESPONSE by Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott to MOTION by Defendant Bruce Rauner to set reasonable rate for court monitor 311 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Libowsky, Stephen) (Entered: 11/07/2017)
314 MINUTE entry before the Honorable Joan H. Lefkow:Motion hearing held on 11/8/2017. Defendant Bruce Rauner's motion to set reasonable rate for court monitor 311 is granted. The hourly rate for the Court Monitor is set at $350. Mailed notice (mad, ) (Entered: 11/09/2017)
315 MINUTE entry before the Honorable Joan H. Lefkow: Status hearing of 11/21/2017 reset for 2/6/2018 at 11:00 AM.Mailed notice (mad, ) (Entered: 11/16/2017)
316 STATUS Report (Class Plaintiffs' Status Report) by Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott (Attachments: # 1 Updated Cost Neutral Plan)(Libowsky, Stephen) (Entered: 02/05/2018)
317 MINUTE entry before the Honorable Joan H. Lefkow:Status hearing held on 2/6/2018 and continued to 3/8/2018 at 11:00 AM. Any motions to be set for 3/8/2018 should be on file no later than 3/5/2018. Parties are requested to notify the courtroom deputy no later than 3/7/2018 whether they believe the status will be an informal conference off the record or whether they believe it should be on the record with a court reporter present.Mailed notice (mad, ) (Entered: 02/07/2018)
318 MOTION by Plaintiffs Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott to Enter an Updated Cost Neutral Plan (Attachments: # 1 Updated Cost Neutral Plan)(Libowsky, Stephen) (Entered: 03/05/2018)
319 STATUS Report by Bruce Rauner (Stratton, Brent) (Entered: 03/05/2018)
320 Defendants' proposed updated cost neutral plan by Bruce Rauner (Stratton, Brent) (Entered: 03/08/2018)
321 MINUTE entry before the Honorable Joan H. Lefkow:Motion hearing held on 3/8/2018. Class plaintiffs' motion to enter an updated cost neutral plan 318 is granted − draft order to follow. Plaintiffs and defendants shall each submit their proposed order versions. Status hearing held on 3/8/2018 and continued to 4/18/2018 at 09:45 AM.Mailed notice (mad, ) (Entered: 03/08/2018)
322 MOTION by Defendant Bruce Rauner to clarify (Stratton, Brent) (Entered: 04/02/2018)

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 32 of 33

04/02/2018 04/05/2018 04/05/2018 04/18/2018 04/23/2018
05/15/2018
05/22/2018 05/23/2018 06/14/2018

323 NOTICE of Motion by Brent Douglas Stratton for presentment of motion to clarify 322 before Honorable Joan H. Lefkow on 4/18/2018 at 09:45 AM. (Stratton, Brent) (Entered: 04/02/2018)
324 UPDATED COST NEUTRAL PLAN Signed by the Honorable Joan H. Lefkow on 4/5/2018:Mailed notice(mad, ) (Entered: 04/05/2018)
325 MINUTE entry before the Honorable Joan H. Lefkow: Defendants' motion for clarification 322 is granted. Paragraph F is modified to reflect correction of the court's misapprehension of the proposed orders. Mailed notice (mad, ) (Entered: 04/05/2018)
326 MINUTE entry before the Honorable Joan H. Lefkow:Status hearing held on 4/18/2018 and continued to 5/22/2018 at 11:15 AM. At the parties' request, the court is reserving the afternoon of 7/26/2018 for potential hearing.Mailed notice (mad, ) (Entered: 04/18/2018)
327 TRANSCRIPT OF PROCEEDINGS held on April 18, 2018 before the Honorable Joan H. Lefkow. Order Number: 30600. Court Reporter Contact Information: Blanca I. Lara, 219 South Dearborn, Chicago, Illinois, blanca_lara@ilnd.uscourts.gov. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 5/14/2018. Redacted Transcript Deadline set for 5/24/2018. Release of Transcript Restriction set for 7/23/2018. (Lara, Blanca) (Entered: 04/23/2018)
328 TRANSCRIPT OF PROCEEDINGS held on April 18, 2018 before the Honorable Joan H. Lefkow. Order Number: 30600. Court Reporter Contact Information: Blanca I. Lara, 219 South Dearborn, Chicago, Illinois, blanca_lara@ilnd.uscourts.gov. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 6/5/2018. Redacted Transcript Deadline set for 6/15/2018. Release of Transcript Restriction set for 8/13/2018. (Lara, Blanca) (Entered: 05/15/2018)
329 MINUTE entry before the Honorable Joan H. Lefkow:Status hearing held on 5/22/2018 and continued to 7/18/2018 at 10:00 AM. Responsible parties should be prepared to testify at the hearing set for 7/26/2018 at 02:00 PM. Witness lists for the 7/26/2018 hearing are to be provided before the status on 7/18/2018.Mailed notice (mad, ) (Entered: 05/23/2018)
330 ORDER : The Clerk shall place Court Monitor, Gail P. Hutchings, on the court's service list on the court's docket: Court Monitor, Gail P. Hutchings, 4923 Waple Lane, Alexandria, VA 22304, (703) 350−7936, GHutchings@BehavioralHealthPolicy.com. Signed by the Honorable Joan H. Lefkow on 5/23/2018. Mailed notice. (ek, ) (Entered: 05/23/2018)
331 TRANSCRIPT OF PROCEEDINGS held on May 22, 2018 before the Honorable Joan H. Lefkow. Order Number: 30959. Court Reporter Contact Information: Ms. Joene Hanhardt, Official Court Reporter, 219 S. Dearborn St., Suite 1744−A, Chicago, Illinois 60604, 312−435−6874.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

Redaction Request due 7/5/2018. Redacted Transcript Deadline set for 7/16/2018. Release of Transcript Restriction set for 9/12/2018. (Hanhardt, Joene) (Entered: 06/14/2018)

Case: 1:07-cv-4737 As of: 11/27/2018 01:34 PM CST 33 of 33

06/18/2018
06/25/2018 06/29/2018 07/13/2018 07/13/2018
07/24/2018
08/02/2018 08/03/2018 08/07/2018 10/10/2018 10/11/2018 11/27/2018

332 MINUTE entry before the Honorable Joan H. Lefkow: Status hearing of 7/18/2018 is reset for 7/24/2018 at 10:00 AM. Witness lists for the subsequent evidentiary hearing are to be provided on or before 7/23/2018.Mailed and telephoned notice (mad, ) (Entered: 06/18/2018)
333 MINUTE entry before the Honorable Joan H. Lefkow: Evidentiary Hearing of 7/26/2018 is stricken and reset for 8/8/2018 at 10:30 AM.Mailed and telephoned notice (mad, ) (Entered: 06/25/2018)
334 ATTORNEY Appearance for Plaintiffs Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott by Shannon Young Shin (Shin, Shannon) (Entered: 06/29/2018)
335 MOTION by Plaintiff Lenil Colbert for extension of time Joint (Taylor, Barry) (Entered: 07/13/2018)
336 Joint NOTICE of Motion by Barry Charlton Taylor for presentment of extension of time 335 before Honorable Joan H. Lefkow on 7/24/2018 at 10:00 AM. (Attachments: # 1 JOINT MOTION TO EXTEND TIME FOR FILING IMPLEMENTATION PLAN)(Taylor, Barry) (Entered: 07/13/2018)
337 MINUTE entry before the Honorable Joan H. Lefkow:Status hearing held on 7/24/2018. Motion hearing held on 7/24/2018. Joint motion for extension of time for filing implementation plan 335 is granted to noon on 8/7/2018. Mailed notice (mad, ) (Entered: 07/25/2018)
338 STATUS Report (Class Plaintiffs' Status Report) by Lenil Colbert, Constance Gray, Kenya Lyles, Ernest Reeves, Dwight Scott (Libowsky, Stephen) (Entered: 08/02/2018)
339 MINUTE entry before the Honorable Joan H. Lefkow: Evidentiary hearing set for 8/8/2018 is stricken by resolution and agreement of parties. Status hearing is set for 10/23/2018 at 11:00 a.m. Mailed notice (ags, ) (Entered: 08/03/2018)
340 Implementation Plan for FY2019 by Bruce Rauner (Stratton, Brent) (Entered: 08/07/2018)
341 MINUTE entry before the Honorable Joan H. Lefkow: The Court is unavailable on 10/23/2018. The status hearing set for that date is stricken and reset to 11/20/2018 at 11:00 a.m. Mailed notice (ags, ) (Entered: 10/10/2018)
342 MINUTE entry before the Honorable Joan H. Lefkow: By request and agreement of the parties, the status hearing set for 11/20/2018 is stricken and reset to 12/11/2018 at 11:00 a.m. Mailed notice (ags, ) (Entered: 10/11/2018)
343 MINUTE entry before the Honorable Joan H. Lefkow: By request and agreement of the parties, the status hearing set for 12/11/2018 is stricken and reset to 12/18/2018 at 11:00 a.m. Mailed notice (ags, ) (Entered: 11/27/2018)


[CONTENT] August 22, 2007 | Americans | ADA | Social Security Act | the Rehabilitation Act | the Nursing Care Reform Act | Illinois | the United States | District Court | the Northern District | Illinois ||| Defendants ||| Court | Joan H. Lefkow | Medicaid | Cook County | Illinois ||| 71 | Fed | R.Serv.3d 1089 ||| January 7, 2011 | Magistrate | Maria Valdez ||| Aug. 29, 2011 ||| Dec. 20, 2011 |||  ||| first | two | 1,100 ||| up to $10 million | first |||  ||| $1.2 million ||| December 2011 | November 16, 2016 |||  |||  ||| April 5, 2018 ||| Gail P. Hutchings | May 20, 2020 [SUMMARY] On August 22, 2007, individuals with disabilities filed a lawsuit under the Americans with Disabilities Act (ADA), the Social Security Act, the Rehabilitation Act, and the Nursing Care Reform Act, against various Illinois state officials in the United States District Court for the Northern District of Illinois.  Plaintiffs, represented by private and public interest counsel, asked the court for declaratory and injunctive relief, claiming that they were institutionalized in a nursing facility even though they were capable of living in a more community-integrated setting with appropriate services.  Plaintiffs claimed that Defendants conditioned receipt of long-term care on remaining in an institutionalized setting, even though it would be less expensive for Plaintiffs to receive appropriate care in the community.

The Court (Judge Joan H. Lefkow) certified a class as: "all Medicaid-eligible adults with disabilities in Cook County, Illinois, who are being, or may in the future be, unnecessarily confined to nursing facilities and who, with appropriate supports and services, may be able to live in a community setting."  71 Fed.R.Serv.3d 1089.

At a status hearing on January 7, 2011, the parties advised Magistrate Judge Maria Valdez that they could conclude settlement discussions without further assistance from the court.  

On Aug. 29, 2011, the parties jointly moved for the court to approve the consent decree they had agreed upon.  The court held a fairness hearing on Dec. 20, 2011, and ultimately accepted the decree.

The consent decree established benchmarks for moving specific numbers of class members out of nursing facilities and into community-based settings. Over the course of the first two-and-a-half years, the decree compelled the state to move 1,100 class members into the community. It also required the state to provide up to $10 million in housing assistance to support the first group of transitioned adults. The decree also compelled the state to develop services needed to adequately support class members who choose to live in the community. It established a monitor to ensure compliance with the decree, and granted $1.2 million in attorneys' fees. 

The court approved an updated plan following the parties' cross-motion to enter into a cost-neutral plan and supplement and amend the December 2011 consent decree on November 16, 2016. The plan included the transition of class members into community-based settings, and continued evaluations and service plans for the class members. The court retained jurisdiction to oversee the full implementation of the plan. The court approved an updated plan on April 5, 2018. Monitoring by the court appointed monitor (Gail P. Hutchings) is ongoing as of May 20, 2020.