June 11, 2018
By Andrew Maloney
Law Bulletin staff writer
A state plan to boost care for developmentally disabled citizens is “a good faith effort” and a “reasonable start,” a judge has ruled.
But it’s not enough.
In fact, U.S. District Judge Sharon Johnson Coleman wrote last week, a proposed bump in wages for the workers who provide the care still falls “woefully short,” and there’s no guarantee Illinois’ ideas to recruit new employees to the task will work either.
After finding last year the state was out of compliance with a 2011 pledge to “provide resources of sufficient quality, scope and variety” to about 16,000 special needs citizens living in intermediate care homes or community-based settings, Coleman ordered the stakeholders in the case back to the drawing board.
“This [c]ourt concludes that ultimately it must be the parties that develop adequate solutions to the problems at issue,” she held in a three-page order last week. “This [c]ourt lacks the expertise and the budgetary authority to impose measures to resolve the issues here. The [c]ourt directs the parties to continue to develop a plan to address the issues causing the reduction in services and to bring the [s]tate into substantial compliance.”
The ruling marks the latest chapter in Stanley Ligas v. Felicia Norwood, No. 05 C 4331. On Wednesday, the judge poked holes in the plan submitted by the state departments of Human Services and Healthcare and Family Services to come into compliance with the decree. She wrote that, while a proposed 38-cent-per-hour increase each year through June 2020 is “significant” for workers, it isn’t nearly enough — especially in Chicago, where the minimum hourly wage will be $13 by next year.
The plaintiffs in the case pointed out that the workers, known as direct support professionals, or DSPs, used to be better compensated. And the judge wrote that, while she was “under no illusion” that the state’s financial problems had gone away, she was also hesitant to support the idea the increase would be adequate.
“Historically, DSPs were paid twice the minimum wage. It may not be feasible for the [s]tate to raise wage rates to that level, but this [c]ourt hesitates to affirm the devaluing of the role of caregivers for some of the more vulnerable members of our society,” Coleman wrote. “At the same time, this [c]ourt is not in the position to act as super-legislator by dictating how the [s]tate should allocate funds and administer its budget.”
She also cast doubt on the state’s idea to recruit more DSPs by coordinating with the Division of Family and Community Services to find capable individuals with no dependents who receive government assistance through Temporary Assistance for Needy Families and the Supplemental Nutrition Assistance Program.
“It is unclear that this pilot program will expand the candidate pool at all,” Coleman wrote. “It is also unclear to this [c]ourt whether it will address the corollary problem of retention of well-qualified employees when the wages continue to remain low.”
In addition to wages and recruiting, the other components of the state’s proposal included enhanced monitoring and other program changes. The judge noted that a court-appointed monitor in the case argued the state’s plan was too shortsighted.
Coleman pointed out that it has already been seven years since the decree was entered, and she saw “no end to the [c]ourt’s oversight.” She wrote that the monitor and other stakeholders should form a working group to study wages, funding for community and intermediate care facilities and find a way to independently assess progress.
“For the defendants to truly comply and provide adequate services, the parties and stakeholders will have to come together to formulate a long-term plan to address these issues,” she wrote.
The decree was bolstered by a 1999 U.S. Supreme Court ruling in Olmstead v. L.C. and E.W. that held individuals with special needs should not be unjustifiably segregated, but cared for in the least-restrictive setting possible according to means and desires.
That meant the state had to begin moving individuals who wanted it out of intermediate care facilities and into community care. The state agencies told legislators in late 2016 they had met or exceeded all of the mandates on moving people into their desired situations.
But the court monitor in the case earlier that year found the state out of compliance with other guidelines on providing resources, citing the wages for DSPs, among other things, as a problem. Gov. Bruce Rauner’s administration acknowledged the wages made it hard to retain workers, but told a panel of lawmakers it was not severe enough to disrupt services. Rauner also vetoed a measure that would’ve raised their wages from about $9.36 to $15 per hour.
The plaintiffs in the case countered by filing suit in April 2017 and arguing the wages resulted in a lack of staffing that led directly to “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.”
Coleman agreed later that year, ordering the state to find a way to provide more resources.
Barry C. Taylor is vice president of the civil rights group Equip for Equality, which represents the plaintiffs in the case. He said he’s hopeful the judge’s order results in everyone working together to put together an adequate plan, but added there’s no hard-and-fast deadline on getting it together.
Taylor said his team had an expert analyze the DSP wages and found the $15 per hour rate consistent with the legislation Rauner vetoed, would be enough to “make a real difference with recruiting and retention efforts.”
He noted the state Senate approved a measure this year that would have increased DSP wages to $13.50 per hour in the first year after approval, then $15 per hour in following years. But it never made it through the House. Absent relief from the General Assembly, the problems will have to be resolved through negotiations.
“The consent decree made it clear that people with disabilities should get individualized support so they can be successful in the community, and currently that’s not happening,” he said. “We’re hopeful that the judge’s order makes that promise become a reality.”
A spokeswoman for the attorney general’s office, which represented the state, said today the office is still reviewing the order.
