April 12, 2017

Suit: State wages hurting disabled

By Andrew Maloney
Law Bulletin staff writer

SPRINGFIELD — Last year, Republican Gov. Bruce Rauner’s administration acknowledged low wages make it hard to retain and recruit people to fill positions treating Illinois residents with developmental disabilities.

The chief of staff for the state’s Human Services Department in October told lawmakers “there may be some issues with the rates,” but nothing severe enough to disrupt the services required under a court order.

But arguments filed in federal court last week paint a different picture. They claim a lack of state funds to adequately staff those services is causing “enormous hardships [for the patients], including social isolation, a dearth of meaningful activities, a lack of progress towards their goals, loss of independence and adaptive skills, and, in many instances, anxiety and depression.”

Lawyers for the roughly 16,000 special-needs citizens covered by the federal court-brokered pledge in Stanley Ligas, et al., v. Julie Hamos, et al., No. 05 C 4331, claim the state is out of compliance with the terms of the agreement and are asking a judge in the case to order the state to provide more resources for care.

They cite pieces of the agreement requiring the state to provide adequate resources for patients in both intermediate-care facilities and in communities. There isn’t a specific dollar amount, but the state has “to ensure the availability of services, supports and other resources of sufficient quality, scope and variety” for the population, among other things.

The problem, the 39-page filing claims, is that reimbursement rates for organizations that provide care to those groups have been frozen since 2008. Meanwhile, the job has gotten more expensive over the years. So those companies have cut benefits and holidays, increased overtime and kept wages for their employees low.

That’s led to lower-quality care, the motion states.

“Providers are unable to pay their direct care staff — the employees who provide the critical hands-on care of people with developmental disabilities — a competitive wage,” the motion, filed Friday in the U.S. District Court for the Northern District of Illinois, argues. “This has led to high turnover of direct care staff and vacant positions. Inexperienced, overtaxed and insufficient staff have resulted in the deprivation of essential services.”

The consent decree stems from a 2005 lawsuit, Ligas v. Norwood. It was certified in June 2011. The latest filing notes the funding issues are not new — that previous court monitor reports suggested violations were imminent. A report last year also found the state out of compliance with the decree.

Barry C. Taylor, vice president for civil rights at the nonprofit Equip for Equality and lead counsel for the plaintiffs, said his clients wanted to try and work with the state outside the courtroom.

“What happened last year is we tried to work collaboratively with the state to see if we could find some sort of resolution,” Taylor said today. He referenced a measure approved by the General Assembly, House Bill 5931, that would have increased reimbursement rates to providers in order to increase the minimum wage for the employees who provide care to $15 per hour. That wage, according to the filing, is now $9.36 per hour.

Rauner vetoed the measure in August, acknowledging that the employees do “difficult and important work” but saying their wages were in line with the national average. At subsequent hearings on the topic, administration officials also repeated Rauner’s argument that Illinois should have a comprehensive budget plan before those rates were adjusted.

After that, “once again, we were at an impasse that could only be resolved by the judge,” Taylor said.

The plaintiffs’ filing highlights four individual cases in which people who receive care in community settings have been harmed by the staffing problems — people with conditions such as autism, cerebral palsy and others who aren’t getting enough time to build relationships with caregivers who know their needs and goals.

In one case, a 32-year-old services recipient referenced as Lisa used to spend time in the community at least three times a week and now makes no more than one trip per week.

“It is now common for Lisa to be confined to the [community living arrangement] for entire weekends, which she spends alone in her room. Lisa’s weekly library trip to choose audio books has been eliminated for the past nine months. This reduction in outings has impaired her skill development and increased her stress, anxiety and frustration,” the filing claims.

Another individual, a 26-year-old named Michael, has been similarly confined because new staffers lack the knowledge and experience to keep him safe while he’s out in public.

“Michael is also fearful of leaving the [center] with [workers] who are strangers to him. He now spends most of his weekends alone in his room, resulting in the loss of social skills,” the filing states.

A Human Services spokeswoman said in a statement that they “respectfully disagree” with the conclusion that the state is out of compliance, but it will continue to follow “every court order” and place emphasis on places serving vulnerable populations.

“We have submitted all payments in question and look to the comptroller’s office to ensure they’re processed. Court filings regarding pay rates distract from the good progress that has been made and will continue to be made,” spokeswoman Meredith Krantz said in an e-mail. “The Rauner Administration remains committed to moving individuals with developmental disabilities, mental illnesses, or physical disabilities out of institutional care and into community settings while ensuring those individuals receive the best care possible.”

A response in the case filed by the state in February notes that it has continued to provide funding for the decree at levels that are no lower than they were in fiscal year 2015 — the last year the state had a full budget. It indicates the total budget under the Ligas decree for the current fiscal year is about $126 million, and the projected cost for next year is $152.9 million. It’s one of a handful of state appropriations that is still going out the door despite the lack of a full budget.

It adds that the state met or exceeded all the benchmarks required under the decree for moving people into community settings. And it states that anecdotal evidence should not be the basis for a noncompliance finding.

“While the [d]efendants once again dispute the findings of noncompliance, they continue to look for ways in which the system can be improved,” that filing states.

Taylor, the plaintiffs’ attorney, said the state’s response is due by May 8, and that U.S. District Judge Sharon Johnson Coleman indicated she would rule on the claims sometime this summer.