United States District Court, N.D. Illinois, Eastern Division
H.O.P.E., INC., d/b/a/ HOPE FAIR HOUSING CENTER, an Illinois Not-for-Profit Corporation; KIMBERLY O'CONNOR; and TAMMY MORMINO; Plaintiffs,
EDEN MANAGEMENT LLC d/b/a EDEN SUPPORTIVE LIVING; 311 LINCOLNWAY PROPERTIES LLC d/b/a/ EDEN FOX VALLEY; 222 STATE STREET PROPERTIES LLC, d/b/a/ EDEN CHAMPAIGN LLC; MICHAEL HAMBLET JR.; MARIA DROSOS; CARLEEN CURALLI; KIMBERLYCROSS; GOVERNOR PATRICK QUINN, in his official capacity; JULIE HAMOS, in her official capacity as Director of the Illinois Department of Healthcare and Family Services; THERESA EAGELSON WYATT, in her official capacity as Acting Medicaid Director for DHFS; KELLY CUNNINGHAM, in her official capacity as Chief of DHFS Bureau of Long Term Care; JOHN K. HOLTON, in his official capacity as Director of the Illinois Department of Aging; and MICHELLE R.B. SADDLER, in her official capacity as the Secretary of the Illinois Department of Human Services, Defendants
Kimberly O'Connor, H.O.P.E., INC., an Illinois
Not-for-Profit Corporation, doing business as Hope Fair
Housing Center, Plaintiffs: Jennifer K Soule, LEAD ATTORNEY,
James Brady Griffin, Kelly K. Lambert, Soule, Bradtke &
Lambert, Elmhurst, IL; Susan Ann Silverstein, PRO HAC VICE,
Aarp Foundation Litigation, Washington, DC.
Tammy Mormino, Plaintiff: James Brady Griffin, Kelly K.
Lambert, Jennifer K Soule, Soule, Bradtke & Lambert,
Eden Management LLC, doing business as Eden Supportive
Living, 311 Lincolnway Properties LLC, doing business as Eden
Fox Valley, 222 State Street Properties LLC, doing business
as Eden Champaign LLC, Michael Hamblet, Sr., Michael Hamblet,
Jr., Maria Drosos, Carleen Curalli, Kimberly Cross,
Defendants: Jason T. Lundy, LEAD ATTORNEY, Polsinelli
Shughari PC, Chicago, IL; Matthew Joseph Murer, LEAD
ATTORNEY, Mark Thomas Deming, Polsinelli PC, Chicago, IL.
Patrick Quinn, Governor, in his official capacity, John K
Holton, in his official capacity as Director of the Illinois
Department on Aging, Michelle R.B. Saddler, in her official
capacity as the Secretary of the Illinois Department of Human
Services, Defendants: Thomas A. Ioppolo, LEAD ATTORNEY,
Illinois Attorney General's Office (100 W), Chicago, IL;
Colin B White, Sunil Shashikant Bhave, Illinois Attorney
General, Chicago, IL.
Julie Hamos, in her official capacity as Director of the
Illinois Department of Healthcare and Family Services,
Theresa Eagelson Wyatt, in her official capacity as Acting
Medicaid Director for DHFS, Kelly Cunningham, in her official
capacity as Chief of DHFS Bureau of Long Term Care,
Defendants: John E. Huston, LEAD ATTORNEY, Karen Elaine
Konieczny, Illinois Attorney General's Office, Chicago,
Champaign Capital Venture LLC, Defendant: Jason T. Lundy,
LEAD ATTORNEY, Polsinelli Shughari PC, Chicago, IL.
OPINION AND ORDER
GOTTSCHALL, United States District Judge.
Kimberly O'Connor and Tammy Mormino, are Medicaid
recipients who believe they are eligible for the Illinois
Medicaid Waiver Supportive Living Program on the basis of
their physical disabilities. These two plaintiffs (the "
Individual Plaintiffs" ), on behalf of themselves and a
class, along with H.O.P.E., Inc. (" HOPE" ), a
private, nonprofit corporation, bring this suit against,
inter alia, several current and former employees of
the State of Illinois (collectively, " State
Defendants" ). Plaintiffs
allege that the State Defendants have unlawfully excluded
individuals with mental disabilities from participating in
the Supportive Living Program in violation of the Fair
Housing Act (" FHA" ), 42 U.S.C. § 3601 et
seq., the Americans with Disabilities Act ("
ADA" ), 42 U.S.C. § 12101 et seq., and the
Rehabilitation Act, 29 U.S.C. § 794.
before the court are the State Defendants' motions to
dismiss. For the reasons set forth herein, the motions are
granted, and Plaintiffs' claims against the State
Defendants (Counts IV, V, and VI) are dismissed.
The Supportive Living Program
enacted in 1965 as an amendment to the Social Security Act of
1935, is a joint federal-state program that provides medical
assistance to low income individuals. See 42
U.S.C. § 1396 et seq. Although the federal
government does not require states to participate in the
Medicaid program, once they do, they " must comply with
federal statutes and regulations." Bertrand v.
Maram, No. 05-cv-0544, 2006 WL 2735494, at *1-2 (N.D.
Ill. Sept. 25, 2006) (citing 42 U.S.C. § 1396a(a)(10)),
aff'd sub nom. Bertrand ex rel. Bertrand v.
Maram, 495 F.3d 452 (7th Cir. 2007); see, e.g.,
42 C.F.R. § 440.210, 440.220 (listing mandatory services
a participating state must provide to the "
categorically needy" and " medically needy" ).
case, the State Defendants' provision of mandatory
services is not at issue. Rather, the Amended Complaint
centers on a voluntary program, the Supportive Living
Program, which the state of Illinois initiated after "
apply[ing] for and receiv[ing] a waiver of Medicaid's
normal rules" in order to provide " home and
community-based services." See
Bertrand, 495 F.3d at 454 (citing 42 U.S.C. §
1396n(c)(1)). Under § 1396n(c)(1), a participating state
may offer services in community settings to qualified
individuals who: (a) but for the provision of such services,
would require a level of institutional care such as a nursing
home; (b) are members of a target group that is included in
the waiver; (c) meet applicable Medicaid financial
eligibility criteria; (d) require one or more waiver services
in order to live in the community; and (e) have the right to
participate in the waiver program in lieu of receiving
institutional care. See Am. Compl. ¶ 64.
total, the state of Illinois operates nine separate "
Home and Community-Based" waiver programs. Each program
targets a different segment of the state's population.
(last visited Aug. 2, 2015). The waivers are: Children and
Young Adults with Developmental Disabilities (" DD"
)-Support Waiver; Children and Young adults
with DD-Residential Waiver; Children that are Technology
Dependent/Medically Fragile; Persons with Disabilities;
Persons with Brain Injuries; Adults with Developmental
Disabilities; Persons who are Elderly; Persons with HIV or
AIDS; and the Supportive Living Program. Id.
applicant to qualify for the last in the foregoing list of
programs, the Supportive Living Program, he or she must:
1) be age 22 years or over with a disability (as determined
by the Social Security Administration) or elderly (age 65
years or over);
2) be screened by the DHFS or other State agency screening
entity and found to be in need of nursing facility level of
care and that Supportive Living Facility placement is
appropriate to meet the needs of the individual;
3) be without a primary or secondary diagnosis of
developmental disability or serious and persistent mental
illness, as determined by a qualified Department of Human
Services screening agent; and
4) have his or her name checked against government offender
websites and databases.
See 89 Ill. Adm. Code §
individual satisfies these and other criteria, then a
Supportive Living Facility (" SLF" ) may admit or
retain that individual as a resident. An SLF is
a residential setting in Illinois that provides or
coordinates flexible personal care services, 24 hour
supervision and assistance (scheduled and unscheduled),
activities, and health related services with a service
program and physical environment designed to minimize the
need for residents to move within or from the setting to
accommodate changing needs and preferences; has an
organizational mission, service programs and a physical
environment designed to maximize residents' dignity,
autonomy, privacy and independence; and encourages family and
See 89 Ill. Admin. Code § 146.200.
The Individual Plaintiffs
is a recipient of Social Security disability payments. Her
physical disabilities range from a severe heart condition and
ruptured discs to diabetes, neuropathy, and recurring
bleeding ulcers. These conditions affect her mobility,
equilibrium, and physical endurance. O'Connor also
suffers from mental health disabilities, including a "
longstanding disorder," which, without medical
treatment, interferes with her " work, housekeeping,
personal care, and relationships." Am. Compl. ¶
October 2012, O'Connor was hospitalized. Before she was
discharged, the hospital's discharge planner provided
O'Connor with information regarding SLFs. O'Connor
thereafter called the Fox Valley location of defendant Eden
Supportive Living (" Eden" ), an SLF regulated by
DHFS. Eden provides apartment-style housing and
health-related services to those who are elderly (over age
65) and persons with physical disabilities age 22 and older.
the call, the Eden representative asked O'Connor several
health-related questions. O'Connor informed the
representative that she had heart ...