Stanley Ligas, et al. v. Felicia Norwood, et al....Stanley Ligas, et al. v. Felicia Norwood, et al....

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StanleyLigas,etal.v.FeliciaNorwood,etal.

FifthAnnualReportoftheMonitorJanuary20,2017

INTRODUCTION

ThisreportisrespectfullysubmittedtotheCourt,thePartiesandtheIntervenors

inaccordancewith¶34theLigasConsentDecree(Decree),whichwasapproved

andfiledbytheCourtonJune15,2011.TheDecreerequiresthat:

“TheMonitor shall file annual reports to the Court, which shall beserved on all Parties and Intervenors and shall be made publiclyavailable.Suchreportsshallincludetheinformationnecessary,intheMonitor’s professional judgement, for the Court, Plaintiffs andIntervenors to evaluate Defendants’ compliance or non-compliancewiththetermsoftheDecree.”

The first LigasMonitor, Tony Records,was appointed by the Court on July 19,

2011.Uponhisretirement,thecurrentMonitor’sappointmentwaseffectiveon

July1,2015. The first threeAnnualReportsof theMonitorwere submittedby

Mr. Records on September 27, 2012; September 30, 2013 and September 30,

2014.BaseduponthetimingofthecurrentMonitor’sappointmentinJuly,2015,

the reporting schedulewas changed to January, 2016 to allow theMonitor six

monthsforaninitialevaluationoftheDefendants’compliancewiththetermsof

theDecree.TheFourthAnnualReportwasfiledwiththeCourtanddistributedto

the Parties and Intervenors on January 7, 2016. It was subsequently made

availableontheDHSwebsiteanddistributedwidely.

Case: 1:05-cv-04331 Document #: 646 Filed: 01/20/17 of 57 PageID #:12232

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The ongoing cooperation of the Defendants, Plaintiffs’ counsel and

representatives, counsel for the Intervenors, service providers, advocacy

organizations,familyassociationsandotherstoonumeroustomentionhasbeen

invaluable incompleting thecurrent report. Input fromthoseprotectedby the

Decree and their families remains critical to theMonitor’s efforts on an almost

dailybasis aswell asduring annual evaluationsof theDecree’s effectiveness at

eachstageofitsimplementation.


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CHALLENGES

TheMonitor’sFourthAnnualReportcitesthelackofaStatebudgetforFiscalYear

(FY) 2016 in Illinois and describes in detail how funding was guaranteed for

providers serving all of those protected by the Consent Decree. It is stated

thereinthatthelackofabudgetfortheStateofIllinoisresultedinuncertainties

for beneficiaries of the Consent Decree and their families, agencies, advocates,

staffandprovidersofalltypesofservices.FederalCourtorderstoaddressthese

issues are quoted therein and the Monitor’s requirement of monthly updates

fromDHSregardingtimelinessofsuchpaymentsisreferenced.This“Information

Request Regarding Ligas Payments” remains in effect. In light of the lack of a

State budget for FY17, which continues to date, the Plaintiffs, Defendants and

Intervenors prepared an “Agreed Order to Maintain Compliance with Consent

Decree”and filedwith theCourton6/26/16a JointMotion toApproveAgreed

Order. This Order, which was approved by United States District Judge Sharon

JohnsonColemanon6/27/16andenteredon6/28/16requires,inpart,that:

“The Comptroller shall continue to timely approve and makepayments for all services, programs and personnel, at a level andwithinthetimeperiodthatsuchpaymentsweremadeinFiscalYear2016, that are necessary to comply with the Consent Decree andImplementationPlans. TheCourtspreviousordersofJune30,2015(Dkt.#597),August18,2015(Dkt.#610)andSeptember1,2015(Dkt.#624) are incorporated herein and shall continue in effect. ThisOrdershall remain ineffectuntil theearlieroftheeffectivedateoftheFiscalYear2017budgetorJuly1,2017,oruntilfurtherorderofthisCourt.”


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“The Illinois Department of Healthcare and Family Services, theDepartment of Human Services, and the Illinois State Comptrollershall provide such information to the CourtMonitor on amonthlybasis to enable her to evaluate and to advise the Court and theParties regarding the State’s compliance with the Consent DecreeandOrdersenteredbythisCourt.”“IfatanytimetheStatebelievesthat itmaynotbeabletocomplywith any provision of the Consent Decree or this Order, the Statemust immediatelybringtheState’spotentialnon-compliancetotheattentionoftheCourt,theMonitor,thePlaintiffsandtheIntervenorsbeforesuchnon-complianceoccurs.”“TheStateshallmaintainitsexpeditedpaymentsconsistentwiththetermsandconditionsthatexistedduringFY2015.”

Todate,Defendantshavemaintained fundingat thesame levelpaid inFY2016

which, thoughnoted tobe inadequate in the FourthAnnualReport, remains in

compliancewiththe6/28/16CourtOrder.

The Monitor’s Fourth Annual Report addresses the fact that low wages,

particularly those paid to Direct Support Professionals (DSPs), resulted in a

staffingcrisisforprovidersofservicesintheireffortstorecruit,trainandmaintain

adequate staffing with the existing wages. There has been a great deal of

discussionatalllevelsduringthepastyearwithoutimprovementinthissituation.

Thestaffingcrisiscontinuesasanotheryearhaspassedwithnoreliefintermsof

salaryincreases,DSPvacancyrateseitherstayingthesameorincreasingandthe


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heightening impact of no increases in rates to providers since 2008 combined

withongoinghighercostsofoperating.

The Monitor’s Fourth Annual Report describes delays in initiation of waiver

services for class members once they have been selected from the PUNS list.

Herein it is noted that a new tracking system has been developed to actively

monitorthoseclassmembersseekingservices.

TheMonitor’s Fourth Annual Report notes limited availability of small CILAs in

some geographic areas as well as for individuals with more intense medical,

behavioralorphysicalneeds.TheMonitorhasbeen informedduringFiscalYear

17thatthissituationisworseningasnewCILAdevelopmentisbeingdelayeddue

to lack of availability of DSPs willing to accept current wages and that some

existingsmallCILAsareatriskofeitherclosingorbeingconsolidated into larger

homes due to staff turnover rates of up to 70%. Some providers are actually

stating that they are no longer able to accept into their CILAs individuals with

more significant needs due to the provider agencies’ inability to recruit,

repeatedlyretrain(atsignificantcost)andconsistentlymaintainsufficientlyskilled

stafftoservetheseindividuals.

TheMonitor’sFourthAnnualReportdiscusses inadequateavailabilityofflexible,

person-centered, integrateddayactivitiesoremploymentfor individualsseeking

suchopportunities,allofwhichremainsproblematic.Effortshavebegunthrough

theEmploymentFirst initiativethatappeartobepromisingbut it istoosoonto


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evaluatetheoutcomes.Inadditionthedaytrainingrequirementforthoseliving

inCILAs isadeterrent to those individuals looking forhomes in thecommunity

but preferring other daytime activities that are more customized and/or

integratedintothecommunity.

TheMonitor’sFourthAnnualReportnotesthatdespitetheDefendants’ongoing

commitment tocompliancewith theConsentDecree, thepreviousMonitorhad

expressedconcernthatresourcesforimplementationare“significantlystrained”

and that “if not effectively addressed could result in non-compliance”. The

current Monitor’s finding, in January, 2016, of non-compliance with regard to

ResourcesandCapacityisrepeatedherein.(SeesectionIbelow.)

The Monitor has initiated conversations with the Division of Developmental

Disabilities(DDD)withintheDepartmentofHumanServices(DHS)regardingthe

processesutilized tomonitor thequalityof servicesprovided tobeneficiariesof

the Consent Decree. Information requests were submitted to DDD and all

documentswerepromptlyprovided.DiscussionsareongoingamongtheMonitor

andtheParties.(SeesectionI.ResourcesandCapacity)


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OVERALLIMPLEMENTATIONACTIVITIES

TheMonitorhas,over thepastyear, soughtandalso receivedunsolicited input

regardingmanyaspectsoftheimplementationoftheLigasConsentDecree.Such

activitiesareconsistentwiththeDecree’sComplianceEvaluationStandardswhich

state,inpart:

“On an ongoing basis, the Monitor will seek and encourage classmembers, families and guardians of class members, the privateprovider community andmembersof the general public to providewrittenandverbalfeedbackonissuesrelatedtocompliancewiththeDecree. Informal meetings and conference calls will also beconducted with defendants’ counsel and staff, class counsel andintervenors’counselregardingtheirrespectiveexperiencesaswellasinformationtheymayhavewithregardtocomplianceactivities.”

TheMonitor’simplementationactivitiesoverthepastyearincluded:

• Communicating regularly with the Defendants, Plaintiffs andIntervenors;

• Conveningmore frequent Parties’ meetings than had previously beenthepracticeinordertoaddressthemostcriticalissuesimpactingthoseprotected by the Consent Decree as well as to attempt to reachconsensuson thedevelopmentof theLigas ImplementationPlan2016Revisions;

• Conveningmeetingstoaddressthe“ReasonablePace”provisionoftheConsent Decree which is scheduled to become effective on June 15,2017;

• Reviewing data and other information provided by the Defendants atagreeduponintervalsaswellasonamorefrequentbasisasrequestedbytheMonitor;


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• Reviewinghundredsof documents providedbyClass Counsel, Counselfor the Intervenors, service providers, Independent SupportCoordination(ISC)agencies,advocacyorganizationsandindividuals;

• Participating in Status Conferences, which are currently being heldapproximately every 60 days, with Judge Coleman, Defendants, ClassCounselandCounselfortheIntervenors;

• Meeting with members of the management team and staff at theDivision of Development Disabilities (DDD) within the Department ofHumanServices(DHS);

• Participating in monthly conference calls with Plaintiffs’ Counsel andDefendantsregardingindividualclassmemberissues;

• Responding promptly to frequent inquiries from class members andtheirfamilies,guardiansandadvocates;

• Presenting information regarding Ligas matters to large and smallgroups of parents, ISCs, service providers, provider organizations,advocates, the Ligas Class Member/ Family Advisory Council, and theLigasFamilyAdvocacyProgram;

• Participating inapanelconvenedby theSenateCommitteeonHumanServicestoaddressthestatusandfutureofthe implementationoftheLigasConsentDecree;

• Visitingindividualswheretheylive,workandattendprograms;• Initiating numerous conference calls with Defendants, Plaintiffs and

Intervenorstoaddresssignificantissuesonatimelybasis;• InitiatingadiscussionwiththeDevelopmentalDisabilitiesDivision(DDD)

of the Department of Human Services (DHS) regarding the overallqualitymonitoringof IndependentSupportCoordination (ISC)agenciesandCommunityIntegratedLivingArrangements(CILAs);and

• Addressing,inavarietyofways,theimpactuponthoseprotectedbytheConsentDecreeoftheState’soverallfiscalcrisisandthespecificissueofinadequatewagesforDirectSupportProfessionals.


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The Defendants continue to engage in actions required by the Consent DecreeandLigasImplementationPlanthroughsuchactivitiesas:

• MeetingornumericallyexceedingtheConsentDecree’sbenchmarksforinitiatingservicesforclassmembersonthewaitinglistaswellasthoselivinginICFs/DD;

• Responding promptly and comprehensively to information requestsfromtheMonitor;

• Participating in issue specific conference calls and videoconferencesinitiatedbytheMonitorbeyondthosewhicharescheduledonaroutinebasis;

• ParticipatinginmonthlyconferencecallswiththeMonitorandEquipforEquality (EFE) regarding individual Class member issues as well aspromptly following up on individual Class member issues broughtdirectly to DDD by the Monitor in response to contacts from familymembersandguardians;

• ConductingreviewsofalloftheISCagenciesandasampleoftheCILAsonanannualbasisaswellasrespondingtotheMonitor’s requests foradditionalinformationregardingtheprocessesandprotocolsinvolvedinthissystem;

• Maintaining agreed upon data required to assess compliancewith theConsentDecree;

• Participating in a cooperative, though eventually unsuccessful, effortwith thePlaintiffs, IntervenorsandMonitor to reachconsensuson thecontentof the2016Revisionsof the Ligas Implementation inorder tocontinuethepracticeoffiling jointlywiththeCourtthe2016RevisionsoftheLigasImplementationPlan;

• Recentlydeveloping,withinputfromthePlaintiffsandMonitor,amorecomprehensivelistofthosewhohavebeenselectedtoreceiveservicesfromthePrioritizationofUrgencyofNeedforServices(PUNS)databaseandarestillseekingservices;and

• Organizing and participating in quarterly meetings of the Ligas ClassMember/FamilyAdvisoryCommittee.


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The Ligas Class Member/ Family Advisory Committee was established in

compliancewith the2013Revisionof theLigas ImplementationPlanandmeets

quarterly at two locations which are connected by videoconferencing and

telephone. DDD staff, Class counsel, the Monitor, family advocates and self-

advocates regularly attend these meetings and guest speakers are invited to

meetingsuponrequestofthemembersorassuggestedbyDDDortheMonitor.

The Monitor finds these meetings to be informative and brings questions,

concernsaswellassuggestionsfromthesemeetingstoothersasnecessary.


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COMPLIANCEREQUIREMENTSANDACTIVITIES

Pursuant to¶32of theConsentDecree, Compliance Evaluation Standardswere

finalized in July 2012 to provide “objective standards to guide the Monitor in

evaluating the Defendants’ compliance with the Decree.” The Ligas

ImplementationPlan,asrequiredby¶29oftheDecree,“issupplementaltothe

ConsentDecreeandtheMonitorthereforealsoreportsonactivitiesspecified in

the Implementation Plan as they relate to each of the following Compliance

EvaluationStandards:

I. ResourcesandCapacityII. ClassMemberList(s)III. TransitionServicePlansIV. TransitionforClassMembersinICFs/DDV. CrisisServicesVI. TransitionforClassMembersonWaitingListVII. OutreachVIII. ImplementationPlanIX. DataReports

AsnotedintheFourthAnnualReportoftheMonitor,whileeachoftheseareasof

complianceisaddressedseparatelyinthefollowingsectionsofthecurrentreport,

more attention is given to the areas which currently have the greatest impact

uponthoseprotectedbytheConsentDecree.


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I. ResourcesandCapacity

Paragraph4oftheConsentDecreerequires,inpart:

“Defendants shall implement sufficient measures to ensure theavailability of services, supports and other resources of sufficientquality, scope and variety to meet their obligations to suchIndividualsundertheDecreeandtheImplementationPlan…”

“Funding for services for each Individual with DevelopmentalDisabilities will be based on the Individual’s needs using federallyapproved objective criteria regardless of whether the Individualchooses to receive services in an ICF-DD or in a Community-Basedsetting…”

Paragraph5oftheDecreerequires,inpart:

“Annual budgets submitted by Defendants on behalf of theiragencies shall request sufficient funds necessary to develop andmaintain the services, supports and structures described in theDecree, consistent with the choices of Individuals withDevelopmental Disabilities, including Class Members. Defendantsshall take steps sufficient to implement funding mechanisms thatfacilitatetransitionamongservicesettings.”

Inaddition,theComplianceEvaluationStandardsindicatethat:

“Thedefendantswill provide theproposed annual budget and costassumptions to the parties, intervenor and Monitor that specifyspending plans for all activities related to compliance with theDecree in sufficient detail to permit an evaluation of Defendants’compliancewiththeDecree.”


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For Fiscal Year 2017, the second consecutive year, there is no approved State

Budgetandnoassurancethatthisimpassewillberesolvedwithinthesecondhalf

of Fiscal Year 2017. The Implementation Plan 2016 Revisions document

recognizes that Federal Court orders continue to require that all payments be

madefor“allservices,programsandpersonnelforallbeneficiariesoftheConsent

Decree, at a level no less than the levels paid in Fiscal Year 2015, that are

necessarytocomplywiththeConsentDecreeandImplementationPlans”.While

the Defendants continue to complywith theOrders, including providing to the

Monitor monthly reports of payments made, DHS has not provided to the

Monitor, Plaintiffs or Intervenors, or within the 2016 Implementation Plan

Revisions, any indication of how the agencywill be addressing the shortage of

DSPsduetoinadequatewages.

The DHS website includes the 2/17/2016 Illinois Budget Briefing Presentation

which states that “The proposed budget for FY 17 continues to provide critical

servicestothemostvulnerableinIllinois.TheAgencycontinuesitscommitment

torebalancing—movingindividualswithdevelopmentaldisabilities,mentalillness

or physical disabilities out of institutional care and into community settings.”

There is no indication by DHS in the 2016 Implementation Plan Revision that

addresses how this “rebalancing” may be funded or how the staffing crisis in

generalwillbeaddressed.ThisispartofthereasonthatthisImplementationPlan

wasfiledwiththecourtbytheDefendantsalone,withoutajointmotionincluding

thePlaintiffsandIntervenors.


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Therefore, as it was during the preparation of the Monitor’s Fourth Annual

Report,itisimpossiblefortheMonitortomakeafindingthatthesufficientfunds

referencedin¶5willbeavailable.

TheFourthAnnualReportincludesdozensofstatementsfromserviceproviders,

families and others detailing not only the fiscal problem causing the

unprecedented staffing shortage in CILAs and ICFs/DD but also its impact upon

thepeoplewholive inthesehomes. Thesestatementsremainrelevantbutwill

notberepeatedhereinastheMonitorhasreceivedadditional,morerecentinput

from countless family members and providers of services and supports to

beneficiariesoftheConsentDecree.Forexample:

“We have consistently run 15% (staff) vacancy rates in Residential DSPopeningssince2008.Thispastyearithasincreasedto25-30%.Wedonothaveenoughstafftomeettheneedsoftheclients.Thisincludesconsistentdifficulty inassistingwith:ADLs (activitiesofdaily living),particularlywithhygiene and cleaning; community access; managing finances. Becausethese needs are not consistently being met, the clients have increasedincidents of maladaptive behaviors and both clients and families aredissatisfiedwithservices.”“Residentshavetogetusedtodifferentstaffintheirhomeeachday.Staffhave to learn all the outcomes, behavior and counseling plans each timetheyareinanewhouse.Thisaffectstheresidentsbecausetheyaren’tabletobuildtrustwithstaffastheyarenotconsistently inthehome.Multiplefamily members and guardians have called with complaints about theinconsistentstaffingandhowthatimpactsthequalityofservices.”


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“There have been multiple staff who have left to work at home healthagenciesduetopay.”“WearenotinapositiontoexpandourCILAcapacity.Weareunabletofillthe current shifts we have within our current homes. Taking on morehomeswouldmeanmorevacancies.”“We have closed three CILA homes and sold buildings to reduce costs.Occupancy in 2008 was nine homes with no home having more than 5people.In2015,weoperated6CILAlocations.Occupancyrangesfromfourtoeightpeopleperhouse.”“ForCILAsandICFs,wehave:downsizedstaffingduetolargeyearlydeficit;cut back on community outings; trimmed health insurance coverage.Throughtheadmissionprocess,wehavedeclinedmoredifficultindividualswithmedicalorbehavioralissues.”“Ahugeshortageinstaffingdirectlyimpactstheprogramandthequalityoftime spent with an individual. This situation has created the need toredirect focus tomaintaining personal carewithADLs rather than to skillacquisitionandskillretention.Thisdirectlyimpactstheagency’sabilitytoachieve our mission, goals and overall objective. This truly becomes adisservicetotheindividualsweserve.”“TheworkofaDirectSupportProfessional isbothphysicallyandmentallyexhausting. Whiletheworkcanbeveryrewarding,the impactofstaffingshortagesandmandatoryovertimedoesnotequatetoequalpayforequalwork.Itisfartooeasytofindalessstressfulanddemandingjobpayinganequalorhigherrateofpay.Overthepastyear,thelongtermeffectsofthestate’s failure to increase the rate of pay has created a reduction in ourapplicantpoolandanincreaseinourturnover.”


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“Our group homes run with minimal staffing, which does not provideopportunities to promote community integration. Scheduled outings arereducedor foregone. Thisalsocreatesan increasedrisktobothourstaffand individuals. Since thehigh staffing shortages, the agencyhas had toimplement a system for voluntary, and then ultimately mandatory,overtimetocoverallshifts inourgrouphomes. Theextrahoursstaffareworking have the potential to increase mental and physical exhaustion,which ultimately increase the risk of injury or errors with respect topersonalcareandqualityofcare.” “Giventhecurrentresidentialandnursingrates,weareunabletosupportindividuals withmore advanced nursing or behavioral needs.We neitherhavethecommunityresourcesnorsupportstafftoadequatelyaddressandmanagetheseindividuals.”“Staffworkovertimeandextrashiftstomeetbasicneedsandresidentsarenotinthecommunityastheyshouldbe.Lessconsistentcaregiversreducethe quality of care and increase the opportunity for error, particularlymedication administration errors. Lack of consistent staff and individualattention results in less individual goal progress and increasedbehavioralissues.”“Thisorganizationwouldbeclosed in threemonths if itoperatedonlyonwhattheStatecurrentlypaysourorganization.““TotrainaDSPrequiresnotonlycompletingtheDSPcurriculum,butalsoagencyandprogramorientation. Costsaverage$2846.00perpersonpertrainingalone.Thisdoesnotincludeadvertisingandtimespentreviewingand interviewing candidates. With a turnover of 32%, the CILA programhad1/3ofitsstaffmissingduringthelastyear.”“Recentlythestaffwholeftweregood,longertermemployeeswhotoldus


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that they left due towages. Therehavebeen several over thepast eightyearswhowereworkingtwojobsandlefttofindonejobthatpaidalivingwage. The reality is that many DSP positions remain open so only basicneeds are being addressed. It is impossible to provide the staff time andindividualizedsupportsnecessaryforbuildingcommunityrelationshipsandemploymentopportunities.”“WehaveexperiencedseveraltimeswhenstaffinghasdroppedsolowthatwewereunabletostaffallofourCILAhomesfortheweekendsandhavehadtoclosesomeofthemtokeepproperstaffingratios.Consumersthenhavetoberelocatedtoanotherhomefortheweekend.”“TheFiscalYear2016reductioninthemonthlypersonalallowanceforCILAresidentshas forcedmost consumers to spendall theirmonthly fundsonmedicalitems,clothingandhygieneproductsleavingnomoneyforleisureactivitiesorhobbieswhichareimportanttotheresident.”“MydaughterhasexperiencedfivetripstotheEmergencyRoomoverthepast eighteen months, is not being provided with the opportunitiesincludedinherISP,hasonlyonestaffmemberonmostshiftstomeettheneedsofall fourwomenwholivetogetherandhavesignificantlydifferinglevelsofneed,andisn’talwaysprovidedwithhealthyfood.”(TheMonitorregularlyaddressessuchconcernswithfamilies,serviceprovidersandDDDstaff.)“DSP turnover rate in our CILA homes is 70.32% over the past twelvemonths.Duetothelargeamountsofovertime,wehavestaffthataretiredandnotatthetopoftheirperformanceabilities.”“Consumer behavior and skill development is directly impacted by therevolving door of staff. Staff barely have a chance to review IndividualSupport Plans or Behavior Plans before they have to move to another


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housetofillavacantshiftortheyleave.Weareinaconstantstafftrainingmode.Consumersbecomeconfusedfromhavingtoadapttovariousstaffpersonalitiesandit isalmost impossibletogaintrust inthepersonwhoisresponsibleforassistinginbathing,toileting,etc.Decisionsarefocusedonwhodowehaveateachhouseandwhichstaffingoptionproducestheleastamountofrisktotheconsumerandtheorganization.Itisverydifficulttogobeyondmeeting just theconsumers’basicneedsof food, clothingandshelter.Personcenteredplanningrequiresoneononeinteractionwiththeresident. We try to let residentsmake individual choices, but often theyhave to go on group outings. It is even more difficult to deal withunscheduledrequestsforcommunityaccessandtovisitfriendsandfamily.We have reduced the assistance in providing transportation for familyvisits,especiallythoseoutoftown.Weoftenstruggletofindenoughstafftotakeconsumerstomedicalappointments.”“Our DSPs are essential to the well being of residents. DSPs providecompanionship; assist with daily activities such as shopping, eating,grooming,minorhealthcare;facilitateextracurricularactivities.Asaresultoflowwagesandinsufficientbenefits,theagencyhasseenaturnoverrateofover25%.TheconstantturnoverofDSPsisverydisruptivetoresidentsas they lose DSPs to whom they have become attached and then mustadjust tonewstaff. This leads toa lowerqualityof life for individualsaswellasmorebehavioralandmoodissues.”“WhenChicagoraisedtheminimumwagetotendollars,ouragencysawitslaborpoolevaporate.ManyapplicantsareunqualifiedfortheDSPpositionandDSPpositionshavetakenoverninetydaystofillwithsomeremainingvacantfor120daysormore.ThedecreaseinDSPsputsourabilitytomeettheneedsofresidentsatrisk.Wehavetodevotemoretimeandmoneytostaff recruitment, using money that should be going to programs forresidents.“


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“Person-centered planning has been hardest hit by inadequate Statefunding. Day program rates cannot even cover basic transportation, letalonewhat is needed formore individualized activities. Residential ratesonlyprovideforabareminimumlevelofstaffing,whichdoesnotallowforindividualizedactivities.Wearenotreimbursedfor themoreexperiencedandskilledlevelofstaffpersonneededtocarryoutperson-centeredplans.Ligas Class Members are seeing their integration into the communitycurtailedbecauseof the lackofState fundingandarenotbeingprovidedwiththeservicesset forth intheirTransitionServicePlans. Ouragency isnow facedwith the choice of discharging residents, closing programs, orproviding less than adequate care, all at the expense of individuals withdisabilities.”“MydaughterlivesinanICF/DD(IntermediateCareFacility/DevelopmentalDisabilities) and has an intellectual disability, seizure disorder as well aslimitedcommunicationskills.Withmoredirectcarestaffleavinginrecentyears,thereisaconstantflowofnewstaffwhodonotknowmydaughter.Due tomy daughter’s limited communication skills and complexmedicalneeds,ittakesseveralmonthsforanewstaffmembertogettoknowandunderstandher.Moreimportant,ittakesseveralmonthsformydaughtertofeelcomfortablewiththenewstaffpersonwhomusthelpherwithhermostpersonalneeds.Mydaughterhasacalciumdeficiencyduetoseizuredisorder medications, which makes it critical that her teeth be properlycaredfor. Newstaffdonotknowhowtoproperlycareformydaughter’steethandthepoordentitionhascausedherto loseteethandhascausedtheconditionofherremainingteethtoworsen.Theconstantturnoverofstaff and use of temporary staff has also caused her to suffer increasedanxietyasshedoesnotfeelcomfortablehavinganewpersontakecareofheruntilshebuildsabondwiththatperson.”“My son lives in a CILA and has autism, an anxiety disorder and limitedverbalskills.Routineandpredictabilityareextremelyimportantformyson


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and the lack of these results in his becoming very anxious, fearful andfrustrated.Untillastyear,mysonlivedinafour-personCILA,butthentheoperatingagencyhadtoconsolidateandincreasethecapacityof itsCILAsinordertocutcosts.Mysonmovedtoadifferenthouseforsixpeopleanditisanticipatedthatthishousewillbeincreasedtoeightresidentsinorderto further cut costs. Moving to a newhomewithmore residents is veryconfusing tohimand I amconcerned forhis safety and the safetyof theotherresidentsbecauseitismuchmoredifficultforasinglestaffpersontoadequatelysupervisesixoreightindividualswithsignificantdevelopmentaldisabilitiesratherthanfour.Staffworka lotofovertime,resultingintheirfatigue, stress and inability to domore than complete basic tasks. Theydon’thavethetime,energyorexperiencetoprovidethepersonalizedcarethat my son and other residents need. My son loves activities in thecommunity and used to get out into the community at least once eachweek,butnowonlygetsonceortwiceeachmonth.Heisoftenaloneinhisroomandbored,anxiousandfrustrated.Heisbeingseverelylimited.”

EvenmorefarreachingthanindividualorlargegroupcontactswiththeMonitor,

and demonstrating widespread concern with the wages paid to Direct Support

Professionals (DSPs)whoprovidewhat isaptlydescribedas“front lineservices”

tothoselivinginCILAsandICFsinthecommunity,isthefactthatbothchambers

oftheIllinoisLegislaturepassedbillsinthefallof2016toprovide“livablewages”

to such employees. This legislation was vetoed by the Governor and an

attemptedoverrideofthevetowasunsuccessful.

Asnotedabove, this crisis goesbeyond themoney involved in raisingwages to

the impact of the situation on the beneficiaries of the Consent Decree. On

October17,2016, the IllinoisSenateHumanServicesCommitteeheldahearing


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onthe“CurrentStatusandFutureofCompliancewiththeLigasConsentDecree

and Related Subject Matter.” The Monitor, Plaintiffs’ Counsel, Intervenors’

Counsel and DHS Chief of Staff were invited to speak, as were a parent, two

serviceprovidersandadirectsupportprofessional.

DHS’ Chief of Staff, Fred Flather, reported on the State’s accomplishments in

meetingorexceedingthebenchmarksrequiredbytheConsentDecreeformoving

ClassMembers into the community. He also described the ongoing process of

defining the “reasonable pace,” as required by the Consent Decree, at which

thosewho choose to live in community-based settingswill be able tomove to

such environments following the six years during which these benchmarks will

have been measured. In addition, at this hearing as well as during Parties’

meetings over the past several months, DHS indicated that the agency is not

opposedtoraisingwagesforDSPsbutthatthisneedstobeaddressedwithinthe

contextofthebudgetprocess.

ScottMendel, Counsel for the Intervenors, spoke about his daughter’s positive

experience living in an ICF/DDanddescribed the Intervenors’ participation as a

partyintheLigascase.Hecitedparagraph4oftheConsentDecreewithregardto

theState’sresponsibilitytobothhonortheresidentialchoices,includingICFs/DD,

of all individuals with developmental disabilities and provide the resources

necessarytomeettheneedsof thosewhochooseto live in ICFs/DD. Henoted

that“LikeCILAs,thereimbursementratesprovidedtoICFs/DDhavenotincreased

since March 2008” and that “in those almost nine years costs have increased


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dramatically. As a result, the resources provided by the State are no longer

sufficienttomeettheneedsofICF/DDresidents.Theinsufficientratesarehaving

asevereadverseeffectonICF/DDresidents.Residentsarenotreceivingthecare

they require as a result of low reimbursement rates leading to increased DSP

turnover; reduced physical, occupational and speech therapy; reduced

communityoutings;reducedrecreationalopportunities.This isaviolationofthe

Decree.”

Barry Taylor, Vice President for Civil Rights and Systemic Litigation at Equip for

Equality and lead counsel in Ligas v. Norwood, represented the Plaintiffs and,

following a brief overview of the case and Consent Decree implementation,

stated:“WhiletheStatehassofarmetitsquantitativerequirementsunderthe

ConsentDecree,wedohave serious concerns about thequality of the services

beingprovided.…Fromourperspective,manyofthequalityissuesarisefromthe

lowwagespaid toDisability ServiceProfessionals orDSPs. Themain issues for

ourclientsare:Lackofperson-centeredplanningtoallowourclientstoliveinthe

most integrated setting…; difficulty placing and supporting people in the

community who have significant medical or behavioral needs…; lack of

meaningful participation in the community…; lack of integrated, competitive

employment opportunities as providers are often taking a one-size fits all

approach…because they don’t have sufficient staff to supportmore customized

andintegratedemploymentopportunities.”


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The Monitor acknowledged the State’s success in meeting the numeric

benchmarks in theConsentDecreeandhighlighteda fewof thesectionsof the

Fourth Annual Report aswell as the reasons for the finding of noncompliance.

TheMonitor stated therein that “when committedproviders areadmitting that

theiravailablestaffhavetofocusprimarilyonsafety, itcannotbeassumedthat

theentitlementsofthoseprotectedbytheConsentDecreearebeingguaranteed

orthattheexpectationsofthebeneficiariesoftheDecreeandtheirfamiliesare

beingmet.” TheMonitor’s full testimony isnot includedhereinas theexcerpts

presentedabovefromserviceprovidersandfamilymemberseloquentlyexpress

manyoftheMonitors’concernsrelatedtotheinadequatefundingandresulting,

unprecedentedstaffingcrisis.

The service providers spoke in detail about the difficulties in maintaining the

qualityandconsistencyof serviceswhileexperiencing: thehighest staffvacancy

levelsintheirhistoriesandinabilitytorecruitnewstaffduetolowwages;lackof

increase inwages forDSPs in nine years; unprecedented costs of overtime and

staff training; staff unable to address individuals’ needs. In addition, other

written testimony was submitted to this Senate Committee and one of these

documentsprovidedtotheMonitornoted:

“Of issue is that I/DD provider agencies are having an extremelydifficult time hiring and retaining Direct Support Professionals, orDSPs. Specifically,forLigasClassMembers,theinabilitytohireandretainDSPshasmeanttherearefewergrouphomeoptionsforthoseindividualswishingtomoveoutofICFs/DDaswellasalackofDSPstohelpthoseindividualsathomeorinagrouphomereceiveaccessto the community-based supports and services that are required


24

under the Consent Decree. For the roughly 34,000 DSPs workingacross Illinois, themajor issue is that their average hourly wage is$9.35 or about $19,488.00 per year. This is less than the federalpoverty level fora familyof threewhichhas led tooverhalfof theDSPs utilizing public benefits even though they work full time.Without a living wage, there has been and continues to be highturnoveramongthesecaregivers,whichleadstoinstability.”

All of thismirrors the individual concerns reported to theMonitor by families,

guardiansandserviceproviders,asreportedherein.

The most compelling testimony at the hearing was provided by the DSP who

discussedherongoingfifteenyearsofworkingatajobshelovesbutinthemidst

ofextremelyhighstaffturnoverratesandstaffvacanciesresultingininadequate

staffingandunsafesituations.Shetalkedaboutworkingdoubleshiftsforweeks

ata time, trying tomeet theneedsof six individualsat thesametimewhenall

havehealthandothersignificantneedsrequiringpersonalattention“24/7.”She

nowearnsless,afterfifteenyearsofexemplaryandpersonallyvaluedwork,than

herpreviouswageoftendollarsperhourwhichsheearnedwhenworkingfora

different State department. Her clearly heartfelt narrative about her own

strugglestomeetlivingexpensesandmedicalcostswhilebeingunwillingtogive

uptheworktowhichshe isdevotedwasmore illustrativeofthecrisisthanany

statisticsthatmightbeprovided.

Asisindicatedrepeatedlyaboveinthissectionaswellasinparagraphs4,5and

26 of the Consent Decree, the availability and quality of services are critical to


25

beneficiaries of the Consent Decree. Paragraph 4 refers to the Defendants’

obligationto“implementsufficientmeasurestoensuretheavailabilityofservices,

supportsandotherresourcesofsufficientquality,scopeandvarietytomeettheir

obligationstosuchindividuals…”Thispointstotheneedforqualitymonitoring

aswellassufficientfunding.

Paragraph5 states that “Annualbudgets submittedbyDefendantsonbehalf of

their agencies shall request sufficient funds necessary to develop andmaintain

services, supports and structures described in the Decree, consistent with the

choicesofIndividualswithDevelopmentalDisabilities,includingClassMembers.”

Thestatementsaboveinthissectionclearlyrefertolackofavailabilityofcertain

chosenopportunitiesandactivitiesforindividuals,aswellasproviders’inabilityto

maintain services and structures due to inadequate wages resulting in staff

shortages.

Paragraph 26 requires that the “Implementation Planmust, at aminimum: (c)

describenecessary resourcedevelopment activities… to implement theDecree”

and (e) identify, based on information known at the time the Implementation

Plan is prepared, any services or supports required in Transition Service Plans

formulated pursuant to the Decree that are not currently available in the

appropriate quantity, quality or geographic location…” This indicates that

resource development efforts are a critical component of the Plan and that

quality as well as quantity of services must be monitored in order to conduct

meaningfulreviewsoftheadequacyofserviceprovision.


26

FollowingtheMonitor’sreviewofallavailabledocumentsusedbytheBureauof

QualityManagement (BQM) within DDD, theMonitor expressed concerns that

DDDsurveyprotocolshadbeenabbreviatedduring thepast twoyearsand that

theprocessfor followinguponsurveycitationswasnotclear.Therefore,atthe

Monitor’s request, theMonitor, Plaintiffs andDDDmet on a conference call in

early January, 2017 to discuss the current system of monitoring the quality of

services provided in CILAs and day programs. The discussion was informative,

addressedquestions raisedby theMonitorandexplained initiatives thatwillbe

rolledoutthroughtheLifeChoicesprojectwhichareintendedtoimprovetheway

inwhich ISC agencies, CILAs and day services aremonitored. TheMonitorwill

review a sample of surveys previously conducted by the Bureau of Quality

Management,alongwithanyrequiredCorrectiveActionPlansandfollow-ups,to

explore the efficacy of current practices aswell asmake recommendations if it

appears thatanyneededenhancements to the systemarenotbeingaddressed

throughcurrentplanning.

ProblemsrelatedtothemonitoringofCILAsandtheinvestigationofincidentsin

some of these homes were brought to public attention during November and

December, 2016 when the Chicago Tribune published several articles alleging

abuseandneglectoccurringprimarily inCILAsoverthepastthreeorfouryears.

While documenting intolerable treatment of individuals with developmental

disabilitieswholiveinCILAs,thesearticlesalsobroughtforththerolesplayedby

inadequatefunding,insufficientstaffavailabilityandinconsistent,untrainedstaff

in such tragic situations. In addition, it became evident that more effective


27

oversightonmany levels isanabsolutenecessity.Forexample, theprocessand

outcomesofquality surveys,quarterlynotesby ISCsand investigationsmustbe

furtherevaluated, either aspartof theongoingworkof the LifeChoices teams

and theQuality Committee or as discrete efforts. On a positive note, sessions

hostedbytheQualityCommitteeareinprocessatthetimeofthiswritingandare

planned statewide to train ISCs specifically in person-centered planning and

practices, which is certainly a necessary component of Ligas Transition Service

Plans,IndividualServicePlans,ISCs’notesandalloversightefforts.

On 12/13/2016, the Joint State Senate and House Human Services Committee

held a Subject Matter Hearing to hear testimony regarding abuse and neglect

takingplaceingrouphomesforindividualswithdevelopmentaldisabilities.DHS

Secretary JamesDimasacknowledged that theState takes suchallegations very

seriously anddescribedDHS’ efforts, beginning in2015, “to improvequality for

people.” Hespokeof improvementswithintheOfficeof the InspectorGeneral,

such as increasing the number of investigators, enhancing the supervision of

investigations and discontinuing the participation of providers in their own

investigations. Anassessmentisrequiredofwhetherornotsuchimprovements

arehavingthedesiredoutcomesandwhatadditionalmeasuresarestillneededto

protect those living in CILAs, including Class Members. Secretary Dimas also

outlinedaplantodevelop“reportcards”oftheperformanceofindividualservice

providerstoinformthechoicesoffamiliesandadvocatesinmakingselectionsof

the most appropriate agencies to provide needed services. There was

comprehensive questioning by the legislators and testimony on behalf of Equip


28

forEquality,TheInstituteonPublicPolicyforPeoplewithDisabilities,TheArcof

Illinois,IARF(IllinoisAssociationofRehabilitationFacilities)andfromthesiblingof

awomanwho lives in aCILA. Someof this testimony, aswell asotherwritten

commentsreceivedthereafter,included:

• “Illinois’ network of community-based services and supports is notoperating under the best of circumstances, with reimbursement rateshavingbeenfrozenbythestatefornearlyadecade.Thesinglemostcriticalissuefacingtheprovisionofcommunity-basedservicesandsupportsistheinabilitytorecruitandretrainfrontlinestaff.Foryears,ourcommunityhasbeensoundingthealarmaboutthisgrowingcrisis.”

• “It isourhopethatthesearticleswillbethecatalyst forthechangesthatneedtobemadeinIllinois.”

• “The widely discussed direct support wage crisis is having a substantialimpactonthequalityofcaredeliveredincommunityresidences.Agenciesare facing unprecedented challenges in recruiting and retaining a directsupport workforce which is the backbone of the community residentialsystem.”

• “Theproblemshighlighted in theTribunearticlearenotan indictmentofcommunity living for people with disabilities. There is powerful andunequivocalsupport forcommunity living ina largebodyofresearchthathas consistently documented positive experiences of people withdevelopmentaldisabilitieslivinginthecommunity.”

• “The fact that anyone is hurt or, worse, dies of anything besides naturalcausesinagrouphomeisunacceptable.Isupportthoroughinvestigation,corrective action and when appropriate, sanctions. We must alsoacknowledgethatindividualswithI/DDareoftenchallenging,andeventhebesttrainedstaffwillneverbeabletopreventallincidentsfromoccurring.


29

That said, we are not on a level playing field with community housing(CILA). Reimbursement rates are horrendously inadequate…There is noway thatcommunityprovideragenciescancompetewithotherminimumwagejobsthatareeasierandlessstressful. Recruitmentandretentionofqualitystaffisnexttoimpossible,especiallynorthandwestofthecity,andthe ability to do proper training and implement retention strategies andongoingtraining isnotpossiblewiththecurrentreimbursementrates…Tocreate living environments inwhich the health and safety bars are set atthehighestpossiblelevel,weneedtheresourcestodoit.”

One of the provider agencies cited in the first Tribune article had its license

revokedpriortotheJointCommittee’shearing. Thisagencyhadbeensurveyed

orotherwise reviewedbyDDDeight timesbetween5/17/2011and11/14/2016

andtherewererepeatcitationsnotedinallofthesurveysorfollow-upsafterthe

one in 5/2012. Therewere follow-up visits between a few of the surveys and

CorrectiveActionPlanswererequiredatleastthreetimes,includingduringtheir

11/2016survey,lessthanamonthpriortothelicenserevocation.Further,EFE’s

AbuseInvestigationUnit, in2003, issuedaspecialreportentitled“WhyDoesan

Agency That Profited from Exploiting People with Disabilities Remain Taxpayer

Funded?” The subject of this report was the same agency, though using a

differentname,whoselicensewasrecentlyrevoked.Thisreportstatedthatthe

investigation “revealed extremely serious concerns about the services provided

bythisagencytoindividualswithdisabilitiesandthefailureofthisagencytomeet

andmaintainminimumqualityresidentialanddayprogrammingstandards.”The

conclusion stated, in part: “Only through interventions at the highest level of

governmentandthecommitmentofsufficientresourcestosupporttrulyeffective

oversight, monitoring, investigative, and enforcement mechanisms will the


30

system bywhichwe protect ourmost vulnerable citizens, both old and young,

become anything other than an illusion of safety and humane care.”

Comprehensiverecommendationsarecontainedthereinwhichmightbeusefulto

considerinaddressingcurrentissues.

TheMonitorisnotmakinganygeneralizationsbaseduponhavingreviewedonly

onesuchsituation,butthecurrentsituationinvolvingthisproviderdoesillustrate

that even when an established process for quality monitoring is followed and

thereareuncorrectedcitationsoverseveralyears,itcantaketoolongtoresultin

arevokedlicense.Inordertoclosethisloop,theMonitorrecommendsthatBQM

explorewhetherornottherewasanydocumentationinISCs’quarterlynotesthat

referred to such problems. Upon learning of the revocation of this agency’s

license, theMonitor requested from the Defendants information regarding the

ClassMembersinvolvedandhasaskedforongoingupdates.

Aswasthecase inJanuary,2016andbaseduponallofthematerial included in

thissection,mostsignificantlytheescalatingimpactofthecrisesuponthequality

ofservicesprovidedtothoseprotectedbytheConsentDecree,theMonitoronce

again finds noncompliance with this compliance standard. The Monitor has

informedthePartiesandIntervenorsofthelikelihoodofthisfinding.

It is worthy of note that the Ligas Implementation Team continues to include

eighteenpositionsandthattheonlyvacanciesatthetimeofthecurrentreport’s


31

preparationisonepositionthatwasvacatedon12/31/2016andisintheprocess

of being filled and another thatwill be filled as of 2/1/2017. Members of this

teamare clearly critical to theMonitor’s day-to-day activities and their insights

andresponsivenesstorequestsaregreatlyappreciated.

There is also some positive news included in the Implementation Plan 2016

Revisions document that describes some of DHS’ new initiatives such as:

increasing the number of Behavior Therapy hours an individual may receive

annually under theWaiver; engaging a consultant through a State Mentoring

GrantwiththeFederalDepartmentofLabortoexploreopportunitiestoenhance

access to employment services; developing a web-based reporting and search

mechanism for tracking vacancies in residential and day programs as well as

providers’willingnesstodevelopnewservicecapacity.


32

II. ClassMemberLists

Paragraphs8and9oftheConsentdecreerequirethattheDefendantsmaintaina

statewidedatabaseinwhichallClassMembersareenrolledandwhich,alongwith

waiting list data, is promptly revised. The Implementation Plan is required to

includeinformationregardingtheadequacyofthePUNS(PrioritizationofUrgency

ofNeedsforServices)database.

Paragraph2oftheConsentDecreerequiresa listofClassMemberswhoqualify

forMedicaidWaiverservices, live inan ICF/DDwithnineormoreresidentsand

have affirmatively requested community-based services or placement in a

community-basedsetting.AnotherlistisrequiredofClassmemberswhoqualify

forMedicaidWaiverservices, live inafamilyhomeandare inneedofandhave

affirmatively requested home and community-based services or services in a

community-basedsetting. The individualson this listareknownasWaitingList

ClassMembersandthislistisconsideredasubsetofthePUNSlist.

AsindicatedintheFourthAnnualReport,theDDDhadatthattimeestablishedan

automatedprocesstoaddnewClassMemberstothePUNSlistaswellasremove

thosewhoarenolongereligible.Inaddition,asreflectedintheImplementation

Plan 2016 Revisions, DDD conducted, between 5/1/15 and 6/30/16, a special

initiative “to ensure information and data on individuals enrolled is accurate,

complete and current.” This PUNS Integrity Project involved providing targeted

fundstotheISCagencies“toworkwithindividualsandfamiliestobringrecords


33

up to date.” It is reported that as of 9/1/2016 96.8% of the PUNS records

statewidewere currentwithin one year and this exceeded the 95%benchmark

thathadbeenestablishedfortheendofthisinitiative.

Prior to the completion of the PUNS Integrity Project, the Parties had begun

discussing the need for a more efficient way to track the progression of Class

Memberswhoareseekingservicestothepointofinitiationofwaiverservices.A

new comprehensive list was developed, with input from the Plaintiffs and the

Monitorandthefirstsuchlistwasdisseminatedon7/29/2016.Attherequestof

theMonitor,DDDpromptlyprovidedanunscheduledupdateon1/13/2017.This

newlistservedasthebasisforadiscussionregardingfurtherclarificationofboth

the information included and how ClassMembers move off the list as well as

movebackon if necessary. TheMonitor’s reviewof this updated list indicated

442 class members to be actively seeking services. In addition, this update

provides information as to how long classmembers have remained on the list

followingselectionfromthePUNSwaitinglist.

LigasClassMembersSeekingServices(1/13/17)N=442

PUNSSelectionDate #ofClassMembersSeekingServices2012 402013 62014 472016 248

ResidinginICF/DD 101

IntheFourthAnnualReporttheMonitorhadnoteddelaysininitiationofwaiver

services for class members following selection from the PUNS waiting list.

Discussions are ongoing regarding the content of the new list to provide


34

additional details regarding classmembers’ progression toward placement. The

efforts of those involved in this process are integral to theMonitor’s ability to

identify potential barriers to achieving transitions and to determine Class

Members’statustowardreceivingdesiredservices.


35

III. TransitionServicePlans

Beginning inFebruary2016andcontinuing intoFY2017,theMonitorselecteda

sampleof the transitionplanscompletedsince January2015,atwhich timethe

mostrecentversionoftheplanswasconsistentlyinuse.TheMonitor’sDataand

Program Analyst, Melanie Reeves Miller, assisted in reviewing and evaluating

these plans to determinewhether further revisions or training are needed and

whethertheplansarefacilitatingprovisionofappropriateservicesandsupports

chosenby the classmembers, families or guardianswithwhom theplanswere

developed.

TheMonitor,alongwithMs.Miller, reviewedtransitionplansandserviceplans

forfifty-three(53)classmemberswithafocusonassessingtheadequacyofLTSPs

as well as whether the class member’s preferences and service/support needs

were reflected in the initial service plan. It was noted that there had been

improvementinthequalityofLTSPsoverthepastyear.TheMonitorfoundthat

serviceplansreflectedtheclassmember’stransitionplanandforthemostpart,

transitionsoccurredinatimelymanner.

Inmanyinstances,theserviceplanprovidedtotheMonitorwasaninitial30-day

staffing and therefore did not reflect whether services/supports were fully

implemented. TheMonitor then requested fromDDDadditional documents to

include themost recent Individual Support Plan and themost recent Individual

ServiceandSupportAdvocacy(ISSA)VisitingNotecompletedbytheIndependent


36

ServiceCoordinator(ISC).ForthoseclassmemberswhohadanewISPdeveloped

sincetransition,thatISPwasprovidedtotheMonitorasdocumentationofoneof

therequiredfourISCvisitsperyearfor31classmembers(58%)andISCvisitnotes

wereprovidedfor35classmembers(67%).Forsomeclassmembers,bothtypes

ofdocumentswereprovided.

As set forth in the ISSA Guidelines issued by DHS, Independent Service

Coordinators are expected to conduct a minimum of four visits per year: one

annualvisit forparticipation in thedevelopmentof theclassmember’s ISP;one

annualvisit toassist theclassmember incompleting theConsumerSatisfaction

Survey;oneannualvisittotheclassmember’sdayprogramsite;andoneannual

visit to the classmember’s residence. As indicated in the Guidelines, “Besides

participating inthedevelopmentof theannualserviceplan, ISCswill reviewthe

service plan for adequacy in meeting the needs and preferences of the

individual...The priority goal is that issues of health, safety, and meaningful

programmingarereceivingattention.”BasedonreviewoftheISCvisitnotes,the

Monitordeterminedthatonly14(40%)ofthe35visitnotesprovidedcontaineda

substantive description of whether, per the Guidelines, “the ISP contains

identified outcomes for the person that substantially meet all of the person’s

needs; services arebeingprovided in accordwith the ISP; andprogress toward

outcomes is evident (or if not evident, the team is revising the ISP in order to

promoteprogresstowardoutcomes).” Forexample,manyvisitnotescontained

generalstatementswithoutreferencetospecificoutcomes,suchas:


37

• “Goals are reviewed monthly and revisions are made as necessary. Inaddition, the ISP team meets annually to discuss goal performance andrecommendationsaremadebasedongoalperformance.”

• “[Class Member] is making some progress on objectives. Data wassomewhatlimited,however[ClassMember]reportedworkingonmanyofthem and continues to need towork on possiblemedication side effectsandfollowingabudget.”

• “[ClassMember] has amonthly progress note in his file for eachmonth.His goals are updated every three months. His plan is being revised asneeded.”

On a positive note, in at least one case, the visit note reflected “monthly

summaries were not provided so progress could not be assessed. Data for

SeptemberandOctoberwascollectedduringthevisitbythefacilitator.Shemet

her objectives for both of thesemonths.” The ISC flagged the lack ofmonthly

summaries as a need for follow-up action. For another individual, visit note

indicatedthatprovideragencyQualifiedIntellectualDisabilityProfessional(QIDP)

monthly notes were missing for February 2016 through April 2016. The ISC

flaggedthisforfollow-up.

Asnotedabove,thisprojectwas initiatedtoevaluatetheadequacyofLTSPs, to

determine whether or not they serve as foundations upon which individual

serviceplansaredeveloped, andassesswhether servicesarebeingprovidedas

describedintheISPandwhetherprogresstowardoutcomesisevident.Inorder

toreviewimplementationofserviceplans,theMonitorrequestedISCvisitnotes

foreachperson inthesampletodeterminewhetherthesemonthlynotesserve


38

as a measure of achievement of outcomes identified in class members’ ISPs.

Overall, the Monitor found that while visit forms expect the ISC to indicate

whether progress is being made towards outcomes, there was absence of an

analysisoracomparisonofprogresstothepreviousquarter(s)onwhichtobase

thedeterminationof progress or lack thereof. Therefore, basedon the finding

thatonly40%ofthevisitnotescontainedthenecessaryinformationonwhichto

measure implementation and progress toward personal outcomes, it is

recommended that emphasis be placed on addressing this issue as part of

ongoinginitiativestoenhancequalitymonitoringasdescribedinsectionIabove.


39

IV. TransitionforClassMembersinICFs/DD

Paragraph 17 of the Consent Decree requires that within six years after the

approvalof theDecree,allClassMembers residing in ICFs/DDasof thedateof

theapprovaloftheDecreewilltransitiontoCommunity-Basedsettingsconsistent

with their Transition Service Plans if, at the time of the transition, the Class

Member requests placement in a Community-Based setting as confirmed and

documentedinaccordancewiththeDecree.

Itisrequiredthatone-thirdoftheClassMembersinthiscategorytransitiontothe

communityby12/15/2013,two-thirdsby12/15/2015andallby6/15/2017.The

actual target numbers are fluid, based upon the list defining this category. To

date, the Defendants have consistently exceeded the target numbers with

placements totalingmore than 300 beyond the target for 12/1/2015, bywhich

time1255of 1446 then active Ligas ICF/DDClassMembers had transitioned to

the community. As of 12/31/2016, 1363 of 1481 active Ligas ICF/DD Class

Members had transitioned to the community. Of these 1363 Class Members,

1332went toCILAsand theMonitorhas requestedadditionaldetails related to

thetransitions.

TheMonitorapplaudstheeffortsinvolvedinexceedingthebenchmarksandwill

continuetoworkwiththePlaintiffsandDefendantstofacilitatethetransitionsof

Ligas ICF/DDClassMemberswho choose tomove to the community. All Class


40

Membersmustbeofferedavarietyofoptionsandopportunitiesinordertomake

informed decisions about where, how and with whom they choose to receive

servicesandsupports.TheMonitorwillcontinuetoworkcloselywiththeParties

in tracking how such choices are facilitated, particularly in consideration of the

obstacles,asdiscussedinsectionI.ResourcesandCapacityherein,relatedtoboth

themaintenanceofexistingcommunityservicesandfurtherdevelopment.


41

V. CrisisServices

As indicated in ¶21(a)-(b) of the Ligas Consent Decree, “an individual is in a

situation of “Crisis” if he or she is at imminent risk of abuse, neglect, or

homelessness. The provision of interim emergency services (including interim

placement inan ICF-DDwherenoplacement inaCommunity-BasedSettingwas

immediately available) will not necessarily exclude the Individual from being

deemedtobeinasituationofCrisis.If,followingascreening,theIndividualwho

isdetermined tobe inCrisis requestsappropriateCommunity-BasedServices to

be provided in the Family Home or requests placement in a Community-Based

Setting,Defendantswillpromptlydevelop,inconjunctionwiththeClassMember,

aTransitionServicePlan.”

State Defendants are required to serve expeditiously classmemberswhomeet

theabove-describedcriteriaandwhorequestcommunity servicesorplacement

in a community-based setting. A review of crisis requests from July 1, 2015

through June30,2016 indicated that506 crisis services requestswere received

and reviewed by DDD with 482 requests approved. Denials of crisis services

requestswereduetocrisiscriterianotbeingmetand/ordeterminationoflackof

clinicaleligibility.Accordingtothecrisisdata,between7/1/15and6/30/16,one

hundred seventeen (117) crisis requests receivedwere classified as abuse, 240

wereclassifiedasneglect,and125wereduetotheindividualbeinghomeless.


42

117

240

125

ClassificaWonofApprovedCrisisRequestsJuly1,2015-June30,2016

Abuse

Neglect

Homeless

100

245

116


Abuse

Neglect

Homeless

71

233

93


Abuse

Neglect

Homeless


43

Services provided to class members in crisis included four types of CILA

(Community Integrated LivingArrangement) options: 24-Hour CILA,Host Family

CILA, Intermittent CILA, and Family CILA, in addition to Home-Based Support

Services (HBS). Of the 482 crisis requests approved, 261 were approved to

receive 24-Hour CILA, 9 were approved to receive Host Family CILA, 19 were

approved to receive IntermittentCILA, and23wereapproved to receiveFamily

CILA.Home-BasedSupportServiceswereapprovedfor170classmembers:

261

9 19

23

170

ServicesAuthorizedJuly1,2015-June30,2016

24-HourCILA

HostFamilyCILA

IntermirentCILA

FamilyCILA

Home-BasedServices

244

31917

178


24-HourCILA

HostFamilyCILA

IntermirentCILA

FamilyCILA

Home-BasedServices


44

Combining the three reporting years (7/1/13-6/30/16), a total of 1340 crisis

requestsoutof1415requestsreceivedhavebeenapprovedbyDDD.

Forthissamereportingperiod(7/1/13-6/30/16),serviceswereprovidedtoclass

members in crisis within four types of CILA (Community Integrated Living

Arrangement)options:

177

7

20

13

180


24-HourCILA

HostFamilyCILA

IntermirentCILA

FamilyCILA

Home-BasedServices

288

718

334


Abuse

Neglect

Homeless


45

During the 2013/2014 reporting period, the Monitor established, with the

agreement of the parties, that the timeframe to receive services for class

members in crisis will be 24-72 hours, although this timeframe may vary,

depending on individual circumstances, or if temporary services are in place to

addresstheimmediatecrisis.Forthepastthreeyears,theMonitorhasanalyzed

classmemberinformationanddatafromallcrisisrequestsreceivedandreviewed

bytheDefendantsanddeterminedtomeettherequirements forcrisisservices.

FromtheMonitor’sanalysis,improvementwasnotedinthetimelyreviewofthe

crisispacketsuponreceiptbytheDefendants.

After crisis status was confirmed, 40% (545) of the Class Members who were

found to be in crisis received some service within a 24-72 hour period. The

following two charts represent theMonitor’s analysis with a view of the three

yearsincomparisonandthethreeyearsinsummary.

421

10

3930

358


24-HourCILA

HostFamilyCILA

IntermittentCILA

FamilyCILA

Home-BasedServices


46

TimelinessofAuthorizationofCrisisServices

FY2013-2014 FY2014-2015 FY2015-2016 Overall2013-2016N=397 N=461 N=482 N=1,340

24-72hours 107 27% 218 47% 220 46% 545 40%4-9days 122 31% 151 33% 175 36% 448 33%10-19days 74 19% 64 14% 60 12% 198 15%20-29days 36 9% 15 3% 15 3% 66 5%30-39days 15 4% 6 1% 3 1% 24 3%40+ 35 8% 5 1% 6 1% 46 3%InsufficientData 8 2% 2 1% 3 1% 13 1%

Aspresentedabove,datafromthemostrecentreportingperiod(July1,2015to

June30, 2016) shows that46%of the classmemberswhowere found tobe in

crisis, received some servicewithin a 24-72 hour period after their crisis status

was confirmed; for (36%) services were initiated between 4 and 9 days; 12%

receivedservicesbetween10-19days;3%receivedservicesbetween20and29

days; serviceswere not initiated for 2% of the classmembers formore than a

month; and for three class members, data was insufficient to include in the

40%

33%

15%

5%

3% 3% 1%

TimelinessofAuthorizaWonofCrisisServices7/1/13-6/30/16

≤3days

4-9days

10-19days

20-29days

30-39days

40+days

UnableToDetermine


47

analysis. WhilethepasttwoyearsshowimprovementoverFY13/14,thereare

stillfewerthanone-halfoftheindividualswhowerefoundtobeincrisisreceiving

some services within the 24-72 hours agreed upon timeline. The Monitor

recommends that the Parties address this situation at an upcoming Parties’

meeting.

Review of the data associated with the 1,340 crisis requests received and

reviewed between July 1, 2013 and June 30, 2016 revealed that, in nearly all

cases,a“safetyplan”hadbeendeterminedtobeinplacefortheclassmemberin

ordertoensuresafetyandreductionofriskwhileawaitingapprovalofservices.

IntheFourthAnnualReport,itisnotedthattheMonitorraisedconcernsastothe

adequacyofsafetyplanswhereintheclassmemberincrisisisnotinapermanent

or stable situation (e.g., jail, psychiatric hospital, nursing home). It was

recommended that the Defendants and Monitor confer to clarify criteria for

determining adequacy of a safety plan. Discussions have taken place during

Parties’Meetingsandonotheroccasionsthroughoutthepastyearduringwhich

DDDreportedthatthisissueisbeingaddressedandprogresswillbereportedat

upcomingParties’meetings.

The Fourth Annual Report reflects an analysis of crisis data to determine the

relationshipbetweencrisisapplicantsandthePUNSlist.Asnotedinthatreport,

some individuals incrisis situationswerenotselected forservicesbecause their

PUNSenrollmentwasout of date and/or didnot reflect current circumstances.

Alsoincludedtherein,thePUNSIntegrityProjecthadbeenimplementedtobring


48

and maintain PUNS enrollments current. That project has been concluded

successfully.

AsnotedintheLigasImplementationPlan2016Revisions(filedonNovember16,

2016),inadditiontoraisingthequestionoftheadequacyofcrisissafetyplansin

the Fourth Annual Report, theMonitor also expressed concern that nearly half

(49%) of the individuals with approved crisis placements were on the PUNS

waiting list for three yearsormore. Per theMonitor’s recommendation in the

FourthAnnualReport,DHSbeganduring2016todiscusscriteriafordetermining

adequacy of a safety plan and considering the relationship between the PUNS

waitingtimeandcrisisrequests.ConversationsamongthePartieswillbeinitiated

duringthesecondhalfoffiscalyear2017.Thechartbelowreflectsthelengthof

time of PUNS enrollment prior to receipt of the crisis request for fiscal year

2015/16.

FY15andFY16ApprovedCrisisPlacementsandLengthoftimeonPUNSWaitingList

TimePeriod NumberofPlacements %ofTotalOneMonthorLess 69 7%Over1Monthto1Year 212 22%1to2Years 107 11%2to3Years 82 9%3to4Years 57 6%4YearsorMore 326 34%NoDataReport 98 10%

N=951

Aspresentedinthechartabove,40%ofindividualswithapprovedcrisisservices

were on the PUNS waiting list for 3 years or more. This demonstrates a 9%

improvementoverthepreviousyear.


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The Monitor greatly appreciates the assistance of Melanie Reeves Miller, the

Monitor’sDataandProgramAnalyst,inconductingthisreviewofCrisisServices.


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VI. TransitionforClassMembersonWaitingList

TheConsentDecreerequiresthatClassMembersdescribedin¶22oftheDecree

will transition to the community and be referred to as Waiting List Class

Members. A specific schedule for such transitions to community services or

community-basedsettingsisdelineatedin¶22whichrequiresthefollowing:

Ø 1000byJune15,2013

Ø Additional500byJune15,2014




The ImplementationPlan incorporatescriteria for theprioritizationofselections

ofWaitingListClassMembersandwithineachprioritizedcategoryselectionsare

tobemadeaccording to the lengthof time theClassMemberhasbeenon the

PUNSlist.

¶23 of the Consent Decree requires that following June 15, 2017,Waiting List

Class Members “shall receive appropriate Community-Based Services and/or

placementinaCommunity-BasedSettingsuchthattheymoveofftheWaitingList

at a reasonablepace.” During thepast year, thePlaintiffs,Defendants and the

Monitorhaveinitiatedtheprocesstodefinethis“reasonablepace.”Discussions

areongoinginorderforimplementationtobeginbytherequireddate.


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VII. Outreach

Paragraph 25 of the Consent Decree requires that Defendants “maintain a fair

and accessible process by which individuals with developmental disabilities or

their legal guardians canaffirmatively request inwriting to receiveCommunity-

BasedServicesand/orplacementinaCommunity-BasedSettingortoreceiveICF-

MR services in an ICF-DD, and Defendants shallmaintain up-to-date records of

thoserequests.”

The Defendant’s outreach efforts are defined comprehensively in the

Implementation Plan 2016 Revisions and are divided into a “Community

Outreach”sectionandasectiontitled“OutreachtoPersonsinICFs/DD.”Inorder

to address the issue of identifying Potential ClassMembers residing in ICFs/DD

(excludingthoselivinginICFs/DDwhohadalreadysubmittedwrittenrequeststo

beexcludedfromtheClass), theDefendantssecuredtheservicesoftheCouncil

on Quality Leadership (CQL) and the completion of that project resulted in a

reportthatwassharedwiththeMonitorandPartiesinApril,2016.Inthatreport,

CQL identified 123 individuals who chose to become ClassMembers and were

addedtoClassMembersList.Inaddition,55individualswhohadrequestedextra

timetoconsidertheiroptionsweregiveninformationregardingtheappropriate

ISCagenciestocontactifdesiredifthefuture.UponrequestoftheMonitor,DDD

staffagreedtocontact the55 individualsnotedaboveandtoprovide follow-up

informationregardingthe123individualswhowereaddedtotheClasslist.


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It is important to note that in order to become amember of theWaiting List

Class, people need tomake a recordwith the State confirming their desire for

communityservices.PeoplewhoarealreadyonthePUNSlistaredeemedtohave

madesucharecordandarepartoftheClass.


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VIII. ImplementationPlan

¶26of theConsentDecreerequiresthat“theDefendants,withthe inputof the

Monitor, Plaintiffs, Class Counsel, Intervenors and Intervenors’ Counsel shall

createandimplementanImplementationPlantoaccomplishtheobligationsset

forth intheDecree,”and¶28requiresthatthisplanbe“updatedandamended

annually, or at such earlier intervals as Defendants deem necessary or

appropriate.”

AteachscheduledParties’meeting,theDefendantsprovideverbalupdatesofthe

Plan’s activities, as requested by the Parties, Intervenors and Monitor, and

discussionsarefocusedupontheareasdeemedmostsignificantatagiventime.

The Implementation Plan updates and proposed revisions are provided by the

Defendants to the Plaintiffs, Intervenors and Monitor for Consideration. Each

year, through 2015, negotiations have taken place and resulted in jointly

developed revisions being agreed upon before being submitted to the Court.

Howeverin2016,despitesignificanteffortsbyallinvolved,thePartiescouldnot

reach agreement as to some of the Plan’s content. As referred to in section I

(ResourcesandCapacity)herein,theConsentDecreerequiresat¶26thatalistof

items that must be included in the Implementation Plan. Two of the required

itemsare:


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(c) describenecessaryresourcedevelopmentactivities…toimplementthe

Decree;

(e) identify,basedoninformationknownatthetimetheImplementation

Plan is prepared, any services or supports required in Transition Service Plans

formulated pursuant to the Decree that are not currently available in the

appropriatequantity,qualityorgeographiclocation;

TheMonitordidnotrecalltherequirementof¶26(c)untilpreparingthecurrent

reportandthereforedidnotbring it to theParties’attention. This isnotbeing

citedasnoncompliancewiththeDecree.Rather,itisillustrativeofwhytherewas

no joint submission to the Court of the 2016 Revisions. The Plaintiffs and

Intervenors agreed to disagree with the Defendants on the topic of including

informationthereinregardingnecessary“resourcedevelopmentactivities.”

Regarding ¶26(e), the Monitor has initiated discussions related to Quality

Monitoring and, while Defendants have agreed to participate in such

conversations, there has been some disagreement as to whether the Consent

Decreeincludesanyrequirementsrelatedtothisarea.Inordertoidentifyalack

ofservicesavailableoftheappropriatequality,therewouldneedtobearobust

systemtomeasurethequalityofexistingservices.Thismatterisalsodiscussedin

theabovesectionI.


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Whetherornot issuesare included inthe ImplementationPlanoragreedupon,

the Monitor appreciates the cooperation of the Parties and Intervenors in

thoroughlyaddressingissuesuponwhichimplementationoftheConsentDecree

depends.


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IX. DataReports

Paragraph33oftheConsentDecreerequiresthattheDefendants,not lessthan

every sixmonths, “provide to theMonitor, Plaintiffs, ClassCounsel, Intervenors

andIntervenors’Counselandmakepubliclyavailable,adetailedreportcontaining

data and information sufficient to evaluate Defendants’ compliance with the

DecreeandDefendants’progresstowardachievingcompliance.”

TheMonitoracknowledgesthattheLigasDataReportsaresubmittedtimelyand

thatinterimdatarequestedbytheMonitorisalsoprovidedpromptly.DDDstaff

are consistently available to answer the Monitor’s questions, clarify data and

addressconcernsrelatedtodocumentstheyhaveprepared.


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CLOSINGCOMMENTS

TheMonitor remains indebted to her predecessor, Tony Records, whoworked

withthePartiestocreatethesystemsforensuringcompliancewiththeConsent

Decree and shared with the current Monitor his expertise and experience.

Gratitude isalsoexpressed to theParties, families,ClassMembers, Intervenors,

advocates, providers of services, colleagues and others who have shared their

insights, intelligenceand inspiration. TheMonitor looks forward toengaging in

continuedsharedeffortstoassurethatallofthosewhobenefitfromtheConsent

Decreeachievetheirchosengoals.

RespectfullySubmitted: RonnieCohn CourtMonitor [email protected]


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