Appeal from the Circuit Court of Cook County; the Hon. Marjan
P. Staniec, Judge, presiding.
JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Richard and Marilyn Parks, parents, and Lester Parks, their son, by his next friend Richard Parks (plaintiffs), filed this action seeking judicial review of an administrative decision rendered by the Illinois Department of Mental Health (defendant). (Ill. Rev. Stat. 1981, ch. 110, par. 264 et seq.) Defendant had ruled that the assessment of a responsible relative liability charge against plaintiffs for the care of Lester Parks, a handicapped child diagnosed as autistic, was mandated by section 5-105 of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1979, ch. 91 1/2, par. 1-100 et seq.) (hereinafter Code). The trial court found this decision was in violation of the Education for All Handicapped Children Act of 1975 (20 U.S.C. § 1401 et seq. (1976)) (hereinafter EAHC). Defendant appeals. The facts are not in dispute. Plaintiff Lester Parks, now approximately 17 years old, is a multihandicapped child. In 1975 it was determined he required residential placement. On February 16, 1976, defendant placed Lester at the New Hope Living and Learning Center in Waterloo, Illinois. The propriety of this placement is not questioned.
On August 1, 1979, defendant notified Richard and Marilyn Parks that, effective July 1, 1979, a responsible relative liability charge of $100 per month would be assessed against them. (Ill. Rev. Stat. 1979, ch. 91 1/2, par. 5-105.) Plaintiffs appealed from this assessment. After a hearing, the assessment was affirmed. On further appeal to the State of Illinois Board of Reimbursement Appeals, the assessment was again affirmed.
On administrative review, the trial court ruled the assessment of liability against the parents of a handicapped child for the cost of a residential placement that is necessary to meet the child's educational needs is a violation of section 612 of the EAHC (20 U.S.C. § 1412 (1976)) and regulations thereunder (45 C.F.R. secs. 121a.2, 121a.301(a), and 121a.302 (1980)). The trial court ruled the State must pay for all placements educationally necessary and must bear all costs incurred therein under the above cited authorities. The trial court further ruled, since defendant must bear these costs, it was unnecessary to remand the case for a determination of which costs of the placement are "educational."
In this court, defendant contends it is not precluded from charging parents of a handicapped child a responsible relative liability pursuant to section 5-105 of the Code (Ill. Rev. Stat. 1979, ch. 91 1/2, par. 5-105). Defendant also contends the trial court went beyond the scope of judicial review when it found all costs associated with the child were for educational purposes.
In our opinion, the ruling by the trial court is completely supported by Federal law. It is undisputed Lester Parks is a handicapped child and Federal law requires maintenance by the State of "a policy that assures all handicapped children the right to a free appropriate public education" (20 U.S.C. § 1412(1) (1976)). Such education is to include both "special education" and "related services" (20 U.S.C. § 1401(18) (1976)). The EAHC defines "special education" to be (20 U.S.C. sec. 1401(16) (1976)):
"specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions."
The EAHC defines "related services" to include (20 U.S.C. § 1401(17) (1976)):
"transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a handicapped child to benefit from special education, and includes the early identification and assessment of handicapping conditions in children."
With respect to residential placement of a handicapped child, the regulations promulgated to enforce the EAHC provide (45 C.F.R. sec. 121a.302 (1980)):
"If placement in a public or private residential program is necessary to provide special education and related services to a handicapped child, the program, including non-medical care and room and board, must be at no cost to the parents of the child.
Comment. This requirement applies to placements which are made by public agencies for educational purposes, and includes placements in State-operated schools for the handicapped, such as a State school for the deaf or blind."
Defendant contends these statutes and regulations should not prevent the State of Illinois from assessing responsible relative liability charges pursuant to section 5-105 of the Code (Ill. Rev. Stat. 1979, ch. 91 1/2, par. 5-105). We disagree. In our opinion, the regulations cited above unequivocally establish residential placement for the purpose of special education and also all related services are to be provided free from cost to the parents. The above excerpts from the Code and the regulations illustrate graphically the strong insistence by Federal law in the requirement that all expenditures of every kind for the education and welfare of the child are to be borne not by the parents but by the educational authorities of the State.
• 1 Under the doctrine of preemption as derived from the United States Constitution (U.S. Const., art. VI), a State law in conflict with Federal statutes and regulations "is nullified to the extent that it actually conflicts with federal law." (Fidelity Federal Savings & Loan Association v. de la Cuesta (1982), 458 U.S. 141, 153, 73 L.Ed.2d 664, 675, 102 S.Ct. 3014, 3022. See also Olsen v. Financial Federal Savings & Loan Association (1982), 105 Ill. App.3d 364, 366-67, 434 N.E.2d 406, and cases there cited.) Thus, the imposition of the ...