Litigation Update

Governor Vetoes Many Health Appropriations Supported by General Assembly

by Murray L. Manus, Legislative Policy Manager

For the second consecutive year, the spring session of the Illinois General Assembly was dominated by concerns about the large budget deficit faced by the state. Gov. Rod Blagojevich's budget fulfilled his campaign promise not to raise the income or sales tax. However, just as former Gov. George Ryan did last year, he proposed cutting back necessary services for people with disabilities as part of his deficit reduction package. And in a repeat of the scenario, the General Assembly again rejected these cutbacks and increased the appropriations for disability funding in several important ways. However, the Governor vetoed several parts of the mental health budget passed by the Legislature, resulting in funding reductions for many programs.

The FY 2004 budget proposed by the Governor contained an across-the-board 1 percent reduction in community programs for people with mental illness and developmental disabilities. It also failed to provide any cost- of-doing-business increase for community mental health or developmental disability providers, notwithstanding the following:

Community providers have not received any increase in the last four years.
A 2.5 percent increase approved by the General Assembly two years ago was rescinded by Gov. Ryan last year as part of his budget balancing efforts.
Community providers overall are in dire financial straits with many laying off staff, reducing programming and borrowing money just to meet payroll.

Many legislators disagreed with the Governor's funding priorities. In the frenzy of activity that typifies the end of each legislative session, the General Assembly adopted several appropriations bills that would benefit the disability community, including these:

Restoring the 1 percent across-the-board cut in community programs.
Granting a 4 percent cost-of-doing-business increase to community mental health and developmental disabilities service providers (along with Centers for Independent Living).
Raising the wages paid to personal care attendants under the Office of Rehabilitation Services' Home Services Program from $7 to $8 an hour on July 1, 2003, with another $1-per-hour increase effective January 1, 2004.
Providing several million dollars for new CILAs (community integrated living arrangements) for people with mental illness, an area that has not received an increase in many years.

Unfortunately, when the appropriations bills passed by the General Assembly reached the Governor, he not only vetoed the increases for mental health programs, but also vetoed other parts of the appropriations bills that had restored funding to last year's levels. As a result, many community-based services for people with mental illness were cut by the 1 percent he originally proposed and the new CILA funding was completely removed from the budget. Still awaiting his action is the separate appropriations bill that includes the raise for personal care attendants.

Both the General Assembly and Gov. Blagojevich approved new funding to reopen Lincoln Developmental Center, which was closed Sept. 1, 2003, with Gov. Ryan's support. The new proposal contained a scaled-down version to provide "four 10-bed transitional or residential homes."

EFE regrets that the state has chosen to allocate several million dollars for this ill-advised move, when those same funds could be used to provide services to people with disabilities in community settings, which the disability community and EFE support. EFE strongly advocated for the closure of Lincoln because of the dangers faced by the residents of the facility, including a long history of patient injuries and deaths, as well as Lincoln's failure to provide appropriate programming for the residents.

EFE's Legislative Victories

Our legislative advocacy efforts bore fruit on several key bills introduced in the spring 2003 session of the General Assembly:

Involuntary Commitment and Forced Medication

Perhaps most important, we were able to resist very strong efforts to (1) lower the standard for involuntary commitment to mental health facilities, which would result in many more people with mental illness being hospitalized against their will, and (2) make it easier to forcibly medicate individuals over their objection.

EFE led the opposition to these proposals and played a key role in reaching a compromise, which ensured that Senate Bill 199 did not result in a lessening of the standards for involuntary commitment or forced medications.

Involuntary Psychiatric Examinations

EFE also won an important victory regarding another issue that arose during these negotiations, which is not reflected in the language of Senate Bill 199. The proponents of the original bill wanted to extend the time period within which an individual could be held in a mental health facility for an involuntary mental health examination. The current law limits that time to 24 hours; the proposal was to extend it to 96 hours, which met with strong opposition. All the other parties to the negotiations subsequently compromised on 48 hours. However, EFE refused to acquiesce to this change and, as a result, the current law stands as it is with the 24-hour limit.

Use of Restraints

House Bill 2310 sought to expand the number of personnel in mental health facilities who have the authority to put patients into restraints. Under the Mental Health Code, there are four categories of individuals who possess this authority: physicians, clinical psychologists, clinical social workers and registered nurses with supervisory responsibilities.

The bill would have added "clinical professional counselors" to that list. We strongly opposed the bill because putting people into restraints is such a dangerous practice that has resulted in severe injury and death over the years for so many. Providing more people with the power to restrain patients would increase the availability of this life-threatening procedure. EFE shared its concerns with key members of the Legislature, and the bill was defeated in committee.

Adult Guardianship

One of the many recommendations of EFE's Guardianship Reform Project was to require that a petitioner in a guardianship proceeding prove the legally required elements of his or her case by clear and convincing evidence. This is the standard that applies under the Probate Act when an individual who already has a guardian tries to reduce the guardian's powers or terminate the guardianship altogether. But the law did not contain any standard of proof in proceedings for the appointment of a guardian, meaning that the less rigorous standard of preponderance of the evidence would apply, which is the same standard that is used in all ordinary civil cases.

Senate Bill 41 proposed to change the law by imposing the clear and convincing evidence standard in guardianship cases whenever someone sought to have a guardian appointed for an adult. EFE testified in favor of the bill before the House committee, and the bill ultimately passed the entire General Assembly.

Other Important Legislation

Illinois Agrees to Waive Sovereign Immunity in Lawsuits by State Employees Under ADA

Sovereign immunity is a doctrine that prevents states from being sued without their consent. In 2001, the U.S. Supreme Court held in University of Alabama v. Garrett that employment discrimination suits for money damages under the Americans with Disability Act (ADA) could not be filed in federal court against a state by its employees with disabilities unless the state agreed to permit itself to be sued by waiving its sovereign immunity.

EFE successfully spearheaded a coalition effort urging former Atty. Gen. Jim Ryan to sign onto a pro-ADA amicus brief in the Garrett case, and advocated for the support of new Atty. Gen. Lisa Madigan to sign onto an amicus brief in another case testing the ADA in a state immunity case before the Supreme Court - California Board of Medical Examiners v. Hason.

EFE strongly supported House Bill 469, the predecessor of which was defeated last year, whereby Illinois agreed to waive its sovereign immunity for this purpose and to permit lawsuits under other specified laws. This year the General Assembly reversed itself and voted to adopt this important legislation. As a result, individuals with disabilities who work for the State of Illinois will have the same remedies for unlawful discrimination that all other employees with disabilities have under the ADA.

Mandate for DHS to Compile Database of People with Disabilities Needing Services

For several years, the disability community, led by the Arc of Illinois, fought for passage of a bill that would require the Department of Human Services (DHS) to compile a waiting list of people with disabilities who had requested services from the state but hadn't received any. Previous administrations opposed the bill on grounds that several other states with waiting lists had been sued and that such a statute would put Illinois at greater risk for litigation.

Fortunately, new DHS Secretary Carol Adams has a more enlightened view and cooperated with the bill's sponsors this year. As a result, Senate Bill 252 was enacted. It does not actually create a waiting list but requires DHS by July 1, 2004, to compile a database of all people who are potentially in need of disability services funded by the Department. General information contained in the database, with no personally identifying information, will be available to the public.

Implementing Olmstead

On June 22, 1999, the U.S. Supreme Court held in Olmstead v. L.C. that the unjustified segregation of individuals with disabilities in institutions constitutes discrimination based on disability, in violation of the ADA. The Court ruled that the ADA requires states to provide community-based services rather than institutional placements for those individuals with disabilities who want to live in the community and are able to do so with appropriate support services - provided that such placements could be reasonably accommodated with the resources available to the state and that the needs were still met for other people with disabilities who are receiving state-supported services.

Until now, Illinois has taken no significant action to comply with the Court's mandate. Fortunately for people with disabilities, a bill was approved by the legislature that is intended to start that process. House Bill 684 calls for the creation of an advisory committee composed of people with disabilities, advocates, state agency officials and others, to assist the Governor and DHS in developing and implementing a detailed plan to comply with the Court's ruling.

The Governor is required to submit a report to the General Assembly by Nov. 1, 2004, that must include, among other things, the plan itself, information regarding the number of people eligible under the plan and the services and programs to be made available to them, and costs of implementing the plan. The plan must be annually updated and all changes must be reported to the General Assembly by July 1 of each year, starting on July 1, 2005, and continuing for each of the next three years.

Funding Priorities

The Legislature shifted $5 million that was earmarked to pay for the operation of large privately owned institutions for people with mental illness (known as IMDs), from the Department of Public Aid's budget to the Department of Human Services. It is hoped that the Department of Human Services will commit these funds for housing and appropriate services in the community for people with mental illness. =

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