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PARKS v. PAVKOVIC

February 28, 1983

RICHARD PARKS, MARILYN PARKS, LESTER PARKS, BY HIS PARENTS AND NEXT FRIENDS, RICHARD PARKS AND MARILYN PARKS, ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
IVAN PAVKOVIC, DIRECTOR, DEPARTMENT OF MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES, EDWARD COPELAND, CHAIRMAN, ILLINOIS STATE BOARD OF EDUCATION, RUTH LOVE, SUPERINTENDENT, CHICAGO PUBLIC SCHOOLS, PATRICIA BARGER, REPRESENTATIVE, DEPARTMENT OF MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES, ROBERT MANDEVILLE, DIRECTOR, BUREAU OF THE BUDGET, WILLIAM KEMPINERS, DIRECTOR, DEPARTMENT OF PUBLIC HEALTH, JEFFREY MILLER, DIRECTOR, DEPARTMENT OF PUBLIC AID, GREGORY COLER, DIRECTOR, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, ROBERT GRANZEIER, ACTING DIRECTOR, DEPARTMENT OF VOCATIONAL REHABILITATION, DONALD GILL, STATE SUPERINTENDENT OF EDUCATION, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Prentice H. Marshall, District Judge.

  MEMORANDUM OPINION

This is a disturbing case. Plaintiffs have brought to our attention one of the most blatant violations of federal law imaginable. It appears that the State of Illinois has been openly violating the rights of handicapped children. Defendants, instead of promptly moving to correct the problem, or even arguing that they have complied with federal law, defend this case almost entirely by finger-pointing. Each state and local agency involved in this case does little more than claim that it is not responsible for the plight of handicapped children in Illinois, and urges the court to pin the blame elsewhere. While this bureaucratic infighting rages, none of these public servants before the court seem concerned about finding a way to remedy the problem. That is a task that must, by default, fall on this court. We now undertake it.

THE FACTS

Named plaintiff Lester Parks is a severely emotionally disturbed child in need of special education and related services. Because he is so severely disabled, he must be placed in a residential facility which can provide him with the intensive educational and support services that he needs. In early 1980, Lester's parents became fearful that the facility in which he then resided, New Hope Living and Learning Center, was in danger of closing. They sought help from the Chicago Board of Education ("CBE") and the Illinois Department of Mental Health and Developmental Disabilities ("DMHDD") in finding an alternative placement for Lester.

In July, 1980, DMHDD placed Lester in Willowglen Academy, a residential treatment center in Milwaukee, Wisconsin. However, DMHDD did not pay for the cost of the ensuing treatment and special education that Lester received there. Eventually, Willowglen announced that it would discharge Lester on March 25, 1982 unless his outstanding bill was paid. In an effort to prevent the imminent discharge, Lester and his parents filed this suit on February 18, 1982. On March 19, this court ruled that defendants, the various state and local officials responsible for providing Lester with an education under state and federal law, had apparently breached their duty to provide Lester with a free appropriate public education, and issued a preliminary injunction requiring them to assure Willowglen that they would pay Lester's outstanding bill, so that it would not discharge him. See Parks v. Pavkovic, 536 F. Supp. 296 (N.D.Ill. 1982).*fn1

Pending before the court are plaintiffs' motions for class certification and partial summary judgment.

THE MERITS

Before turning to the specific issues pending before the court, an examination of the merits of this lawsuit is necessary. The merits of the case provide the necessary perspective from which the more specific issues raised can be viewed.

"It is the purpose of this Act to assure that all handicapped children have available to them, within the periods specified . . . a free appropriate public education." So goes the preamble to the Education for All Handicapped Children Act of 1975 ("EHA"), 20 U.S.C. § 1400(c) (Supp. V 1981). The Act goes on to provide that participating states such as Illinois must provide a free appropriate public education to all handicapped children ages three to eighteen by September 1, 1978, and to all children ages three to twenty-one by September 1, 1980. Id. § 1412(2)(B) (1976). Local educational agencies in participating states are also required to provide a free appropriate public education. Id. § 1414(a)(1)(C)(ii).*fn2

The free appropriate public education guaranteed by the act includes both special education and related services provided at public expense. See 20 U.S.C. § 1401(18) (1976). "Related services" include all supportive services necessary to enable a handicapped child to benefit from special education. Id. § 1401(17). "Related services," if they include placement in a residential facility, must be free of charge.

    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.

34 C.F.R. § 300.302 (1981).*fn3

Thus, the EHA unambiguously requires Illinois to provide an appropriate public education at no cost to the parents of handicapped children.*fn4 For reasons that escape us, however, Illinois chooses not to comply with this clear federal mandate. The Illinois Mental Health and Developmental Disabilities Code provides,

    Each recipient of services of the Department, and
  the estate of such recipient, is liable for the
  payment of sums representing charges for services to
  such recipient at a rate to be determined by the
  Department in accordance with this Act. If such
  recipient is unable to pay or if the estate of such
  recipient is insufficient, the responsible relatives
  are severally liable for the payment of such sums, or
  for the balance due in case less than the amount
  prescribed under this Act has been paid. The maximum
  services charged for each patient assessed against
  responsible relatives collectively may not exceed
  financial liability determined from income in
  accordance with the uniform schedule in Section 5-116
  of this Act.

Ill.Rev.Stat. ch. 91 1/2, § 5-105 (1981). The Act goes on to authorize DMHDD to assess the responsible relative liability created by the act to the responsible relatives, and creates a schedule for the assessment of costs based on the annual income of the recipient or his responsible relatives. See id. §§ 5-106 to 5-116.

Under this statutory scheme, DMHDD charges parents of handicapped children amounts equal to the responsible relative liability that they calculate for each recipient of services. In 1982, DMHDD made 207 assessments of responsible relative liability covering 478 recipients of services. Answers to Interrogatories by Defendant Pavkovic # 5. Lester's case is illustrative. His parents have been charged $100 per month since he was placed in Willowglen. This is despite the fact that Lester's father is unemployed. Plaintiffs have submitted affidavits from other parents of handicapped children who have had to pay similar charges. Thus, the free appropriate public education that is guaranteed by federal law is, in Illinois, anything but free.

CLASS CERTIFICATION

In challenging the assessment of a responsible relative liability,*fn5 plaintiffs seek to have this case certified as a class action on behalf of

  All handicapped Illinois children between the ages of
  three and twenty-one and their parents who have been
  refused full funding for private special education
  placements as a result of any of the following
  Illinois State Board of Education ("ISBE"), Illinois
  Department of Mental

  Health and Developmental Disabilities ("DMHDD"),
  Governor's Purchased Care Review Board ("GPCRB"), and
  Chicago Board of Education policies and practices:
  a. DMHDD policy not to pay a portion of special
     education costs designated as "responsible
 ...

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