Federal Judge Rejects Request To Throw Out Documents In Support of Murray Center
However, Judge Marvin Aspen says they do not intend to rely on testimony describing incidents where the resident is not readily identifiable by name, initials or factual circumstance. He adds the court is not interested in the merits of Murray labor and employment complaints and recognize there may be a fine line between evidence of an employment dispute and evidence that residents are being assessed against guardian wishes, pre-selected for group homes and/or deprived of information and choice.
The judge's ruling comes just days before a settlement hearing is held in Chicago Federal District Court on Tuesday to determine if the two sides can work out an agreement on their own. If no decision is possible, the case heads to hearing in January.
Among the affidavits and exhibits that Judge Aspen will allow to be entered into evidence are hundreds of pages of letters presented by Murray Parents Association President Rita Winkeler from parents, family members, and staff of Murray Center as well as others. The judge notes while the letters are unsworn and unauthenticated, hearsay can be considered in entering a preliminary injunction.
Aspen says some of the letters, particularly the letters from guardians describing in detail their wards' conditions and experiences in different types of housing, include facts relevant to the issues to be determined at the preliminary injunction hearing. The judge says the letters will be reviewed, although they cannot afford them the same weight as any sworn testimony and the court will not rely on the significant amount of irrelevant information, generalities, and hypotheticals shared in the letters.
The judge will also allow information submitted about unsuccessful Murray resident transfers done with permission of the guardians. Aspen says while the guardian consent removes the transferred residents from the putative class, it does not affect the claims of those trying to keep Murray Center open that the remaining Murray residents may suffer similar harms if they are forced, as alleged, into a CILA or community independent living arrangement. However, the judge notes that doesn't mean the Office of State Guardian is on trial. Aspen says the court is not in a position to evaluate the conduct or job performance of the OSG and will not consider evidence attacking Ms. Omer's personal involvement or the wisdom of her consent decision.
The judge has also agreed to allow declarations from Murray staff members on how the state's discharge planning policy is not being followed for the assessment and transition of Murray residents out of the facility.
A declaration from Alicia Creed outlining HIPAA violations that allegedly took place with state contracted CRA employees removing the charts of Murray residents whose guardians explicitly prohibited from doing so will also be allowed. Aspen says while the testimony may not constitute direct evidence of an ultimate fact, it is relevant. The Judge says HIPAA claims aside, Creed's account is relevant as it has a tendency to show that the Department of Human Services are actively disregarding Murray guardian instructions as to resident files, which represents an initial phase of the transfer process.
Aspen is also rejecting the Department of Human Services request to strike testimony from Murray employees who state they were instructed to transfer a resident's belongings to a home, only to discover upon arrival that the home was not yet habitable. The judge says such evidence may support assertions the state is rushing assessments and transfer of residents and failing to ensure that the new housing arrangements are suitable for the disabled residents displaced from Murray.
Aspen's ruling will also allow testimony from Murray employee Steve Koppen allegedly threatening his termination by then Assistant Administrator Rick Starr if he gave an opinion to a Murray guardian if a particular resident might succeed in a CILA home. The judge says while the case is not about a labor dispute, the testimony will be allowed towards claims that Murray guardians are being deprived of information about future housing options that would allow them to make informed placement decisions.
Winkeler is considering the judges ruling a victory for the Murray Parents Association and others trying to keep Murray Center open.
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