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Illinois League of Advocates for the Developmentally Disabled v. Illinois Department of Human Services

United States District Court, N.D. Illinois, Eastern Division

July 21, 2014

ILLINOIS LEAGUE OF ADVOCATES FOR THE DEVELOPMENTALLY DISABLED, et al., Plaintiffs,
v.
ILLINOIS DEPARTMENT OF HUMAN SERVICES, et al., Defendants

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[Copyrighted Material Omitted]

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For Karen Kelly, as Guardian for Eric Schutzenhofer, Elizabeth Gersbacher, as Guardian for Charlie Washington and Linda Faye Higgins, Illinois League of Advocates for the Developmentally Disabled, David Iacono-Harris, as Guardian for Jonathon P. Iacono-Harris, Plaintiffs: Barton James O'Brien, Kathleen Fitzgerald Howlett, Sarah R Burky, Sherri L. Thornton-Pierce, LEAD ATTORNEYS, Daniel Reza Saeedi, Gabriel Reilly-Bates, Megan Kelly McGrath, Judith Schwartz Sherwin, Shefsky & Froelich Ltd., Chicago, IL.

For Murray Parents Association, Inc., Rita Winkeler, as Guardian for Mark and Mark Winkeler, Lauren Stengler, as Guardian for Wayne Alan Stengler, Stan Krainiski, as Guardian for Steven Edward Krainski, Barbara Cozzone-Achino, as Guardian for Robert Metullo, Robyn Pannier, as Guardian for Benjamin Pannier, Jeannie L. Williams, as Guardian for John L. Fuller, Jr., Robert Pokorny, Dr., as Guardian for Robert James Pokorny, Gail K. Myers, as Guardian for Mark Andrew Wymore, Plaintiffs: Barton James O'Brien, Kathleen Fitzgerald Howlett, Sarah R Burky, Sherri L. Thornton-Pierce, LEAD ATTORNEYS, Gabriel Reilly-Bates, Megan Kelly McGrath, Judith Schwartz Sherwin, Shefsky & Froelich Ltd., Chicago, IL.

For Illinois Department of Human Services, Kevin Casey, in his official capacity as Director of Developmental Disabilities of the Illinois Department of Human Resources, Michelle R.B. Saddler, in her official capacity as Secretary of the Illinois Department of Human Services, Defendants: Thomas A. Ioppolo, LEAD ATTORNEY, Illinois Attorney General's Office (100 W), Chicago, IL; Laura Marie Rawski, Office of the Illinois Attorney General, General Law, Chicago, IL; Marni M. Malowitz, Illinois Attorney General's Office, Chicago, IL; Sunil Shashikant Bhave, Illinois Attorney General, Chicago, IL.

For Patrick Quinn, as Governor of the State of Illinois, Defendant: Thomas A. Ioppolo, LEAD ATTORNEY, Illinois Attorney General's Office (100 W), Chicago, IL; Laura Marie Rawski, Office of the Illinois Attorney General, General Law, Chicago, IL; Marni M. Malowitz, Illinois Attorney General's Office, Chicago, IL.

For Community Resource Alliance, Defendant: Patrick J Boyle, Gunn And Gunn, Creve Coeur, MO.

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MEMORANDUM OPINION AND ORDER

Honorable Marvin E. Aspen, U.S. District Court Judge.

Plaintiffs in this action have challenged Defendants' decisions to close a state-operated institution for the developmentally disabled and to assess its residents for potential transfers into community living arrangements. Plaintiffs contend that this conduct constitutes disability discrimination in violation of federal law, denies Plaintiffs and the purported class members equal protection, and deprives them of choice as required by the Medicaid Act.

In early January 2014, a three-day preliminary injunction hearing in this matter was conducted. The parties have since submitted their post-hearing briefs, as well as their proposed findings of fact and conclusions of law. For the reasons set forth below, Plaintiffs' motion for a preliminary injunction is denied.

FINDINGS OF FACT[1]

Pursuant to Federal Rules of Civil Procedure 52(a)(2) and 65, we begin with a recitation of the facts pertinent to our analysis. Fed.R.Civ.P. 52(a)(2), 65. We rely on the parties' Stipulation of Facts (Dkt. No. 348), their proposed findings, the witnesses' written direct testimony submitted prior to the hearing, the transcripts of hearing testimony, the parties' exhibits, and, where necessary, our assessment of witness credibility. We also consider the parties' pre- and post-hearing briefs (including supplemental materials), and we bear in mind our prior evidentiary rulings. ( See 12/5/13 Op. (Dkt. No. 321) (resolving motions in limine).) In large part, the critical facts are undisputed.

I. THE PARTIES AND RESIDENTS OF MURRAY

Plaintiffs include the guardians for several individuals who reside at the Warren G. Murray Developmental Center (" Murray" ).

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(Stip. ¶ 1.) Murray is a state operated developmental center (" SODC" ), a residential facility that provides housing and a range of services (known as " ICF-MR" services) to individuals with developmental disabilities, particularly those with severe and/or behavioral needs. ( Id. ¶ 8.) Murray is located in Centralia and is one of seven SODCs operated by the State of Illinois. ( Id. ¶ 9.) As of August 31, 2013, Murray was home to 233 residents, some of whom have lived there for decades. ( Id. ¶ 10; see also Rule 30(b)(6) Decl. of Rita Winkeler ¶ 21 & Ex. (letters filed under seal) (Dkt. Nos. 239-1, 240).)

Many of the Murray residents are nonverbal and medically fragile. (Winkeler 30(b)(6) Decl. ¶ 21 & Ex.; see also Decl. of Rita Winkeler ¶ ¶ 4-5 (Dkt. No. 241-1); 9/22/13 Decl. of William Henson ¶ 4 (Dkt. No. 241-10); 4/12/13 Decl. of Marsha Holzhauer ¶ 3 (Dkt. No. 241-9); 9/23/13 Decl. of Dr. Karen Kelly ¶ ¶ 5-6 (Dkt. No. 241-3); Rule 30(b)(6) Decl. of Rita Burke ¶ ¶ 10-12 (Dkt. No. 314-1); 9/21/13 Decl. of Janice Kerst ¶ 3 (Dkt. No. 241-5); 4/13/13 Decl. of Denise Schoppet ¶ 2 (Dkt. No. 241-8); 6/23/13 Decl. of Lori Demijan ¶ ¶ 2-5 (Dkt. No. 241-17).) As of August 31, 2013, eighty-four percent (84%) of Murray residents had severe or profound mental retardation range. (Stip. ¶ 10.) Sixty-eight percent (68%) of the residents had a behavior intervention program, often requiring higher levels of staff supervision. ( Id. (internal quotation omitted).) Some of the specific conditions found in the Murray population 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. (Winkeler 30(b)(6) Decl. ¶ 21 & Ex.) These individuals often have the mentality of infants or toddlers, and they need help with the most basic functions of daily living, such as eating, toileting, bathing, and dressing. (Winkeler 30(b)(6) Decl. ¶ 21 & Ex.) Many thus require significant supervision to ensure their health and safety and, generally speaking, are extremely sensitive to any changes to their routines. ( Id. )

In addition to several Murray guardians, the named Plaintiffs include, inter alia, two organizations: (1) the Murray Parents Association (" MPA" ), which keeps guardians informed about and involved in events and issues concerning Murray; and (2) the Illinois League of Advocates for the Developmentally Disabled, which seeks to promote the welfare of people with developmental disabilities in the State of Illinois, particularly those living in residential placements. (Stip. ¶ ¶ 2-3; Winkeler 30(b)(6) Decl. ¶ 2; Burke 30(b)(6) Decl. ¶ 1.) Plaintiffs seek to represent a class comprised of developmentally disabled individuals who, at any time since January 1, 2011, currently reside or formerly resided at one of two SODCs--Murray and Jacksonville Developmental Center (" Jacksonville" )--and who oppose transfer from their SODC home to a community integrated living arrangement (" CILA" ).[2] (Compl. ¶ ¶ 1-4, 42-50, 58.) Defendants include Michelle R.B. Saddler, the Secretary of the Illinois Department of Human Services (" DHS" ), and Kevin Casey, the Director of the Division of Developmental Disabilities for DHS (" Division" ), both of whom have been sued in their official capacities. Plaintiffs also sued Community Resource Alliance (" CR Alliance" ), an organization owned and operated by Dr. Michael Mayer. (Stip. ¶ ¶ 4-6.) Community Resource Associates (" CR Associates" ), owned and operated by Derrick Dufresne, has a contract to provide

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services for DHS but is not a party. ( Id. ¶ 7.)

II. THE DIVISION AND THE REBALANCING INITIATIVE

A. Services Offered by the Division

The seven Illinois SODCs currently serve approximately 1,800 residents. (9/23/13 Decl. of Kevin Casey ¶ 7 (Dkt. No. 245-1).) The SODCs constitute Intermediate Care Facilities for the Developmentally Disabled (" ICF/DDs" ). ( Id. ¶ ¶ 5, 7-8.) The Division also administratively oversees about 300 private ICF/DDs, which also provide ICF-MR services. ( Id. ¶ 8.) The Division additionally serves approximately 22,000 individuals in community-based settings, through the Medicaid Home and Community Based Waiver Program (" HCBS Waiver Program" ). ( Id. ) Under the HCBS Waiver Program, Congress authorizes funding for states to serve Medicaid eligible recipients in the community--recipients who would otherwise qualify for institutional placement--so long as the average cost for community services does not exceed the average cost of institutional services. ( Id. ¶ ¶ 8, 15.)

Pursuant to the HCBS Waiver Program, about 9,900 Illinois citizens live in CILAs, typically houses or apartments suitable for one to eight residents. ( Id. ) The majority of CILAs in Illinois are operated by community providers, who are licensed through the DHS Bureau of Accreditation, Licensing, and Certification (" Bureau" ). ( Id. ¶ 29.) The Bureau inspects CILA providers every three years, and the DHS Bureau of Quality Management also performs random visits and evaluations. ( Id. ) CILA residents are assigned a case manager from an independent case management agency (" PAS" ), and the PAS agent must visit the resident at least four times a year. ( Id. ; see also 1/7/14 Hr'g Tr. (Freeman) at 143.) When an individual transfers from an SODC to a CILA, they are also monitored by the DHS Bureau of Transition Services (" BTS" ). (Casey Decl. ¶ 31.) BTS conducts periodic visits to the service providers throughout an individual's community placement. ( Id. )

As for CILA caregivers, DHS requires providers to conduct background checks on potential employees. ( Id. ¶ 29.) All CILA employees are required to complete 40 hours of classroom instruction, as well as 80 hours of on-the-job training. ( Id. )

In addition to the roughly 25,000 citizens served by the Division, an estimated 23,000 people with developmental disabilities in Illinois are on a waiting list to receive services, of whom 6,000 are considered to be in emergency situations. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 29.) The Division lacks funding to offer services to these individuals. ( Id. )

B. The Rebalancing Initiative

In February 2012, Illinois Governor Quinn introduced his Rebalancing Initiative (" the Initiative" ), which aims to restructure the system so that it is less reliant on ICF/DDs and more reliant on integrated, community settings. (Stip. ¶ 14; Casey Decl. ¶ 9.) The initial goal of the Initiative was to reduce the State's SODC population by 600 residents by the end of the 2014 fiscal year. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 58-59.) Both Jacksonville and Murray were slated to close pursuant to the Initiative. (Stip. ¶ 14.)

According to Casey's undisputed testimony, the closing of such congregate facilities reflects the national trend. (Casey Decl. ¶ 7.) Eleven states have eliminated SODCs entirely. ( Id. ) Illinois serves more developmentally disabled individuals in institutions than any other state, except for Texas and California. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 9-10.) The Initiative

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seeks to redirect the system towards community-based services for the developmentally disabled, the mentally ill, and individuals receiving services in nursing homes. ( Id. )

This move away from institutionalization has several underlying bases. First, community programs are considered the best practice standard by the majority of professionals in the field. ( Id. at 11-19; Casey Decl. ¶ 11.) Community programs have been developing for at least 50 years and are not a fad. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 19; see also 1/8/14 10:30 a.m. Hr'g Tr. (Shaver) at 51, 58-59, 62.) Casey testified, based on both his experience and the professional research, that overall " people with intellectual disabilities do better in community programs." (1/8/14 2 p.m. Hr'g Tr. (Casey) at 12; id. at 84-85; Casey Decl. ¶ ¶ 11-13.)

Second, community programs, on the whole, are less expensive than institutional placements. (Casey Decl. ¶ ¶ 14-17; 1/8/14 2 p.m. Hr'g Tr. (Casey) at 26-29 (" Most of the research and my personal experience indicates that community programs are less expensive, frankly, than institutional programs." ).) Even if certain community placements exceed the average cost of institutional care--for example, where a more complicated plan is required to support an individual's needs--funding should be available in excess of the institutional rate because " the vast majority of community placements fall well under this average." (Casey Decl. ¶ 15; see also 1/8/14 2 p.m. Hr'g Tr. (Casey) at 27-29.) On the other hand, Plaintiff's expert, Greg Shaver, testified that it would not be cost-effective to develop community placements for some disabled individuals who are medically frail or pose particular behavioral challenges, including some Murray residents. (1/8/14 10:30 a.m. Hr'g Tr. (Shaver) at 37-41.) Although Casey could not guarantee that the State of Illinois would save money under the Initiative, he testified that he expects savings and that they " will use that money to serve people off of the community waiting list." (1/8/14 2 p.m. Hr'g Tr. (Casey) at 27 (further stating that " [i[f we don't save a dime, we won't save a dime" ); id. at 84.)

Third, the trend away from institutional treatment of the developmentally disabled stems in part from the United States Supreme Court's decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 587, 597, 601-07, 119 S.Ct. 2176, 2181, 2185, 2187-90, 144 L.Ed.2d 540 (1999). In Olmstead, the Supreme Court held that Title II of the Americans with Disabilities Act (" ADA" ) requires states to provide community-based treatment for disabled persons, as opposed to institutionalization, under specified circumstances. In so holding, the Supreme Court explained that " [u]njustified isolation . . . is properly regarded as discrimination based on disability." Id. at 597, 119 S.Ct. at 2187. Consistent with these principles, states including Illinois have taken steps to reduce the number of institutionalized disabled individuals by allowing them to live in a less restrictive community setting. (Casey Decl. ¶ ¶ 7, 13; 1/8/14 2 p.m. Hr'g Tr. (Casey) at 11-12 (noting a study that indicated a 90% reduction since the 1960s in the number of people served in institutional programs nationwide); see also 1/8/14 10:30 a.m. Hr'g Tr. (Shaver) at 58-59 (discussing the decreased census at Murray over the last three decades, as well as his overall support for the closure of SODCs other than Murray).) For the above reasons, the State seeks to implement a more progressive approach to the treatment of the developmentally disabled and serve more people with such disabilities in integrated, community settings. (Casey Decl. ¶ ¶ 9-10.)

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While Governor Quinn and DHS seek to reduce the State's reliance on institutional settings--and thus outspokenly prefer to place individuals in small community homes--Casey and others concede that " there may be some persons who are difficult to place in the community and can be more efficiently served by an ICF/DD level of care rather than a CILA, or for whom a guardian may prefer an ICF/DD level of care." (Casey Decl. ¶ 13; see id. ¶ 12; see also 1/8/14 2 p.m. Hr'g Tr. (Casey) at 43 (admitting that not all people do better in the community); 1/9/14 9:30 a.m. Hr'g Tr. (Mayer) at 53 (" I believe that there will be people who will not be successful in the community." ); 1/9/14 2:05 p.m. Hr'g Tr. (Dufresne) at 4-5 (testifying that he has concluded that at least one SODC resident he evaluated should not be placed in the community).)

C. The Closures of Jacksonville and Murray

The first SODC slated to close pursuant to the Initiative was Jacksonville, which closed on December 3, 2012. (Stip. ¶ 16.) Of the roughly 180 residents, 108 moved to community placements, almost all CILAs. (Casey Decl. ¶ 32.) Eighteen residents moved to private ICF/DDs, 53 transferred to other SODCs, and one was placed in a mental health center. ( Id. ) There is no evidence that Defendants transferred any Jacksonville residents to a community placement without guardian consent.[3] ( See, e.g., id. ; 1/9/14 2:05 p.m. Hr'g Tr. (Dufresne) at 29; 1/9/14 9:30 a.m. Hr'g Tr. (Doyle) at 27-28, 34.)

Murray was scheduled to close on October 31, 2013, though this litigation has delayed that process. (Compl. ¶ 52; see also 1/9/14 9:30 a.m. Hr'g Tr. (Doyle) at 13.) As both parties have acknowledged, Plaintiffs are not entitled to care in, and cannot force the State to permanently maintain, any particular facility. Accordingly, so long as the State decisionmakers intend to close Murray, it will close.

Some residents have already transitioned out of Murray in preparation for its planned closing. For example, approximately four individuals have moved into a private ICF/DD from Murray. (1/8/14 10:30 a.m. Hr'g Tr. (Shaver) at 36.) Some other residents who have left Murray are wards of the Office of the Special Guardian (" OSG" ). Two of these individuals will be moving to other SODCs. (1/8/14 2 p.m. Hr'g Tr. (Starr) at 118-19.) The OSG initially approved another twenty-four Murray residents to move to CILAs, but that decision has been challenged in state court, which has appointed a temporary guardian ad litem (" GAL" ), Stewart Freeman, for these individuals.[4] (Decl. of Stewart Freeman ¶ ¶ 5-9 (Dkt. No. 241-4); 1/7/14 Hr'g Tr. (Freeman) at 112-15.) Although that dispute remains pending, there is no evidence to suggest that Defendants removed the thirteen OSG wards currently living in CILAs from Murray without the OSG's initial consent. (1/7/14 Hr'g Tr. (Henson) at 48-49 (acknowledging that the OSG signed documentation to allow the transfers); see also 1/7/14 Hr'g Tr. (Freeman) at 135-38.)

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Casey testified that he is not aware of any plans for DHS to close all of the State's SODCs. Governor Quinn announced an intention to close up to four SODCs, to reduce the census by 600 residents, but Casey has no knowledge of intended closures beyond Murray and Jacksonville. (Casey Decl. ¶ 27.)

III. The ACCT Process

A. Overview of the Process

DHS has begun planning for resident transfers given Murray's slated closure. In light of the goals of the Initiative, DHS advises and prefers that all guardians consider a CILA for their wards' next placement. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 23-25; Casey Decl. ¶ ¶ 23-25.) To that end, DHS contracted with CR Associates, who works with CR Alliance, to assess individuals for placement in the community.[5] (10/2/13 Am. Decl. of Derrick Dufresne ¶ ¶ 1, 7 (Dkt. No. 275-1); 9/23/13 Decl. of Dr. Michael Mayer ¶ ¶ 1 (Dkt. No. 245-2).) According to Casey, DHS retained CRA because Murray staff members would not have enough time to perform their regular duties as well as prepare transition plans for all of Murray's residents. (Casey Decl. ¶ 18; see, e.g., 1/7/14 Hr'g Tr. (Henson) at 52-53 (agreeing that the Murray interdisciplinary (" ID" ) team, including two social workers, would otherwise be called on to assist with transition decisions for each resident); Henson Decl. ¶ 2.) The State pays CRA approximately $180,000 per month under the contract, which began in 2012. (1/9/14 9:30 a.m. Hr'g Tr. (Doyle) at 18; see Casey Decl. ¶ 18 (stating the DHS has a $2 million contract with CR Associates).)

DHS engages in a type of " person-centered planning," which they call the " ACCT process," to evaluate each resident for future placements. (Casey Decl. ¶ ¶ 18-19; Dufresne Decl. ¶ 7; Mayer Decl. ¶ 9.) DHS retained CRA, and employed the ACCT process, to implement the closure of Jacksonville. (Dufresne Decl. ¶ 9; Mayer Decl. ¶ 8.) DHS is again utilizing the ACCT process, with CRA's assistance, for the Murray closure. (Casey Decl. ¶ 19.) Person-centered planning generally involves a highly individualized assessment of each resident. (1/7/14 Hr'g Tr. (Henson) at 51, 58; 1/8/14 10:30 a.m. Hr'g Tr. (Shaver) at 52, 58, 74-75; see Casey Decl. ¶ 19.) Under the person-centered approach, the methodology is to develop a community program around the disabled individual, such that the overall program, including housing and services, is tailored to his or her particular needs. (1/8/14 2 p.m. Hr'g Tr. (Casey) at 15, 19-20; 1/9/14 9:30 a.m. Hr'g Tr. (Mayer) at 51, 53.)

Dr. Mayer provided detailed testimony in his declaration about the purpose and mechanics of the ACCT process. (Mayer Decl. ¶ ¶ 9-19.) Plaintiffs do not challenge Dr. Mayer's description of the ACCT process itself, and we thus adopt his testimony about the steps involved in the ACCT process. ( Id. ¶ ¶ 11-19.) By way of brief overview, the assessment portion of the ACCT process typically includes a records review, a meeting with the resident and guardians to generate a Person-Centered Plan (" PCP" ), any potential further clinical screening, and the creation of a planning and support budget report, which covers

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fifteen domains (such as medical, dental, nursing, mobility, and behavioral support) and recommends specific services and supports. ( Id. ¶ ¶ 15-18; see also Casey Decl. ¶ 19; see, e.g., Dufresne Decl. ¶ ¶ 14-17 (describing the placement portion of the ACCT process) & Ex. 4 (flow chart of ACCT process).) Seven or eight credentialed professionals participate at various stages of each individual's assessment in the ACCT process. (Mayer Decl. ¶ 14; see id. ¶ 13 (identifying the assessment professionals and their qualifications); see also Casey Decl. ¶ 19; 1/7/14 Hr'g Tr. (Freeman) at 140-41 (acknowledging that the ACCT evaluations are completed by credentialed professionals); 1/9/14 9:30 a.m. Hr'g Tr. (Mayer) at 72-73.) Where a community provider is selected, the ACCT professionals attend the pre-transition meeting to ensure that the provider and PAS agent understand the individual's needs. (Mayer Decl. ¶ 19.)

B. Plaintiffs' Substantive Concerns about the ACCT Process

1. Philosophical Underpinnings

Although Plaintiffs do not specifically argue that the steps of the ACCT process are inherently inadequate,[6] or that the CRA professionals are not adequately credentialed, they contend that the underlying premise of the process is flawed, infecting the entire approach. ( See Post-Hr'g Mem. at 9-10; Post-Hr'g Reply at 4, 6-7.) As Defendants have repeatedly acknowledged, the ACCT process " is based on the belief that all persons with developmental disabilities can be served in a community setting with the appropriate supports and services." (Mayer Decl. ¶ 10; Casey Decl. ¶ ¶ 13, 20; Dufresne Decl. ¶ 8; see 1/8/14 2 p.m. Hr'g Tr. (Casey) at 16-20; 1/9/14 9:30 a.m. Hr'g Tr. (Mayer) at 49-53; 1/9/14 2:05 p.m. Hr'g Tr. (Dufresne) at 4.) Defendants relatedly assert that " [t]here are virtually no services available in an SODC that are not available in a community setting," such that the setting can be designed to suit the resident in accordance with his or her individual plan. (Casey Decl. ¶ 20.) Plaintiffs decry this " reverse-engineering" mentality, insisting that the ACCT process thus predetermines every resident's assignment to a CILA upon Murray's closure, regardless of their needs. (1/7/14 Hr'g Tr. (Kelly) at 222, 224-25, 241-42, 246; see also 1/7/14 Hr'g Tr. (Freeman) at 148, 151, 170-71; Burke 30(b)(6) Decl. ¶ ¶ 7-8.)

In support of their position, Plaintiffs rely on the testimony of Dr. Karen Kelly, who is a registered nurse, a faculty member at the School of Nursing at Southern Illinois University at Roosevelt, and a Murray guardian for her son, Eric. (1/7/14 Hr'g Tr. (Kelly) at 202-14 (describing her professional experiences as well as her son's needs).) Dr. Kelly testified, based on her decades of nursing experience, that " the big flaw in [the ACCT process] is that it has a predetermined outcome." ( Id. at 224; see also id. at 225.) And based on her personal experiences caring for Eric, Dr. Kelly ...


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