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From Health Law Daily, July 23, 2014

Discrimination claims won’t stop mental health institution from closing

By Bryant Storm, JD

A district court refused to grant an injunction sought by the representatives of residents of an Illinois operated institution for the developmentally disabled who contended that in the process of closing the institution and transferring residents, Illinois violated federal discrimination and Medicaid laws.The court held that while the concerns raised by the residents’ representatives with respect to the relocation process were sincere, they presented no basis for an injunction, did not outweigh the state’s interests, and were premised on a mischaracterization of the institution’s closing and the relocation process (Illinois League of Advocates for the Developmentally Disabled v Illinois Department of Human Services, July 21, 2014, Aspen, M).

Murray. The Warren G. Murray Developmental Center (Murray) is a state operated developmental center (SODC), which provides housing and services, known as Intermediate Care Facilities for individuals with Mental Retardation (ICF-MR) services, to over 200 individuals with developmental disabilities. Murray is one of seven SODCs in the state of Illinois. The residents of SODCs are, in the courts words, “nonverbal and medically fragile” and often have the mentality of infants or toddlers and require specialized care. Some of the conditions identified by the court include: “mental illnesses, self-injurious and aggressive behaviors, elopement tendencies, seizures, autism, cerebral palsy, and pica disorder, which is characterized by an individual’s efforts to ingest inedible objects.”

Rebalancing. Illinois Governor Quinn introduced a rebalancing initiative to make Illinois less reliant on SODCs to care for the state’s developmentally disabled residents and more reliant on community-based care. Murray and another SODC, the Jacksonville Developmental Center (Jacksonville), were both slated to close under the initiative. Although Jacksonville did close, the Illinois League of Advocates for the Developmentally Disabled, the Murray Parents Association, and several residents’ guardians brought suit challenging the closure of Murray and delayed its closure.

Relocation. As part of the initiative, DHS’s advised all guardians to consider community integrated living arrangement (CILAs). DHS contracted with CR Alliance and CR Associates (CRA) to assist DHS in assessing residents for placement in the community. The process, which DHS called person-centered-planning or ACCT, uniquely evaluated each resident for an ideal placement in a community setting that would address the resident’s unique care needs.

Discrimination. The Murray residents’ representatives challenged the ACCT process and alleged that the process violated Title II of the Americans with Disabilities Act (P.L. 101-336) by forcing residents into a flawed procedure that predetermined community living as the best choice for all residents. The representatives contended that not all SODC residents could be adequately cared for in a community setting and by failing to appropriately address that reality, the initiative and DHS discriminated against the Murray residents because they were residents of an SODC.

No evidence. In response to each argument it analyzed, the court returned to a fundamental determination that there was no evidence that DHS or the ACCT program denied Murray residents or their guardians an opportunity to choose between community based care and care in another public or private SODC or institution that provided ICF-MR services. The court also found nothing to support the resident’s contention that the ACCT process was discriminatory against SODC residents because there was no basis to conclude that the Murray residents were being forced to choose a particular kind of care. On the contrary, the evidence showed that CRA, DHS, and the ACCT program were being implemented to help resident’s guardians make informed choices. The court found no basis to conclude that at any point in the process DHS did, or intended to, deprive Murray residents of choice.

Additionally, evidence which showed inadequacies of community-based care was deemed unpersuasive by the court because there was no evidence presented that community-based care was any worse than the care Murray residents received in an SODC. In fact, national trends and DHS evidence suggested community care would be better for the majority of residents. Because the court deemed it unlikely that the representatives of the Murray residents could succeed on their discrimination claims at trial, the court denied their motion for a preliminary injunction.

Medicaid. The court also analyzed claims by the resident’s representatives that a lack of choice violated Medicaid laws. Under Medicaid’s Home- and Community-Based (HCBS) waiver program, in 42 U.S.C. § 1396n(c)(2)(C), Medicaid provides waivers so individuals who would otherwise be eligible for Medicaid benefits for care in a traditional, long-term care institution could also receive care in a home or community based residence. Medicaid regulations, in 42 C.F.R. sec. 441.302(d), require that beneficiaries are: (1) Informed of any feasible alternatives available under the waiver; and (2) Given the choice of either institutional or home- and community-based services.”

The resident’s representatives claimed that the DHS initiative and ACCT procedure eliminated the choice that Medicaid was supposed to guarantee through the HCBS waiver program. The court held that the Medicaid requirement was designed to provide information and waivers to those interested in community care. Because residents had made it clear that they were disinterested in community care, the argument was unpersuasive to the court. The court held that DHS in no way deprived residents of choice between community and institutional care and provided them with opportunities to obtain information and guidance related to both. Accordingly, the court found that no violation of federal Medicaid law took place.

The case number is 13 C 1300.

Attorneys: Barton James O'Brien (Taft Stettinius & Hollister LLP) for Karen Kelly, Illinois League of Advocates for the Developmentally Disabled, and Murray Parents Association, Inc. Thomas A. Ioppolo, Illinois Attorney General's Office, for Illinois Department of Human Services. Patrick J. Boyle (Gunn and Gunn) for Community Resource Alliance.

Companies: Illinois League of Advocates for the Developmentally Disabled; Murray Parents Association, Inc.; Illinois Department. of Human Services; Community Resource Alliance

MainStory: TopStory CaseDecisions MedicaidNews IllinoisNews

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