Institute Summary of Plaintiff and Intervener Reply in Ligas Case

Jul 14, 2017 by

Summary of the Plaintiffs’ and Interveners’ Reply in Support of Their Joint Motion to Enforce the Consent Decree

July 14, 2017

 The Plaintiffs and Interveners submitted a joint reply to the State response to the Motion to Enforce the Ligas Consent Decree.  A link to the full reply is available at the end of this document.  The below summary highlights key elements from the exceptionally well-crafted document.

The Institute extends its deep appreciation to the following attorneys who have so capably represented the Ligas class and Interveners and to Court Monitor Ronnie Cohn:

Barry Taylor, Laura Miller and Amanda Antholt at Equip for Equality

Benjamin Wolf and Gail Waller at ACLU of Illinois

Scott Mendel and William Choslovsky representing the Interveners

 The summary below parallels the key areas included in the reply.

Motion to enforce seeks only to maintain service system established by the Consent Decree (CD), not expand it as Defendants’ response suggests.

  • The CD assures the availability of person-centered services and community integration and to provide the resources necessary to meet the needs of those living in ICFDD’s, none of which is happening based on affidavits from community agencies.
  • While CD doesn’t explicitly provide for court-ordered rate increases, however by agreeing to the CD, Defendants’ took on the obligation of paying for the cost of services, and couldn’t have expected them to remain stagnant over time. By refusing to pay the cost of services, the state is pushing the burden onto non-profit community agencies which have little capacity to absorb the additional expenses, thereby resulting in a reduction of services to class members.
  • “Level funding” does not equate to level services as the state argues. The affidavits submitted by many community agencies.

Defendants have not refuted the violations of the CD’s requirements under paragraphs 4, 13 and 14.

  • The primary factual issue to be addressed by the Court is whether the state is providing the services required by the CD (through contracted agencies) or whether its failure to maintain an adequate community system is depriving Class members and Interveners of the services to which they are entitled under the CD.
  • The reply claims the state is indeed failing to uphold its above obligation and cites numerous affidavits in support of that position.
  • The reply discredits the NCI survey data the state relied upon to demonstrate compliance with service plans, citing that the state cannot verify how many of the 170 people surveyed receive CILA services, which is the subject of the Motion to Enforce.
  • The reply discredits the state claim that service providers have not brought concerns to DHS’ attention, citing hearings, public comments to the Waiver renewal and numerous meetings on the topic.
  • The reply refutes the states’ claim that they have actually “increased services” by increasing Behavior Analyst hours and opening 16 crisis beds. The reply points out that these are not a substitute for inadequate DSP staffing.
  • The reply challenges the states’ reliance on national survey data, citing the very surveys the state used which indicated that many were statistically unreliable and cannot be used for comparative purposes and regardless of this, Illinois signed a Consent Decree which does not exist in other states.

The CD is not a vehicle for Medicaid compliance and the Court’s authority to enforce is not relinquished to CMS.

  • The state tries to “use a single undefined phrase (federally approved objective criteria)” out of context to argue the CD requires nothing more than compliance with CMS requirements. The reply highlights several elements of the CD which obligate the state to specific requirements which are not being met.
  • The reply argues that the phrase “federally approved objective criteria” applies only to the Medicaid eligibility process, and is not relevant to rates paid to providers.
  • The reply asks the Judge to disregard the state argument that since CMS has approved our Waiver, services are in compliance with the CD, stating that the Motion is to enforce the CD, not Medicaid requirements.
  • Several references challenge the state’s position that CMS has “approved” the Illinois rate structure.

Remedy: The Court can and should enforce the Consent Decree

  • The reply challenges the state position that the Court cannot order relief necessary to compel compliance, stating it is well established that the Court has the authority to enforce CD’s and citing case law.
  • The reply requests the state be ordered to develop a detailed plan for how the state will bring itself into compliance with the CD, including a commitment to increase rates over a specific timeframe (rather than requesting a specific financial remedy).
  • The Court should not accept the state’s argument that making rates comparable to other midwestern states would require a “fundamental alteration” of the state system, as that is a defense to an ADA claim in litigation. The state cannot enter into a CD and then claim it doesn’t have the money to comply with what it agreed to.  “Further, the vast majority of people receiving services are either Class members or beneficiaries, making it disingenuous to suggest that adequately funding the services they need will dramatically alter the system”.
  • The reply provides a different/more robust interpretation of several of the case law references the state cited in its response to the Motion.

Ligas Reply

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