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DARLENE L. v. ILLINOIS STATE BD. OF EDUC.

June 30, 1983

DARLENE L., ET AL., PLAINTIFFS,
v.
ILLINOIS STATE BOARD OF EDUCATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Nordberg, District Judge.

MEMORANDUM OPINION AND ORDER

This action is before the court on motion of defendants to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted. For the reasons set forth below, defendants' motion to dismiss is granted.*fn1

FACTS

District 211 personnel then submitted forms requesting authorization for Darlene's placement at the Institute of Living ("Institute") to the Illinois State Board of Education ("SBE") pursuant to ¶ 14-7.02 of the Illinois School Code, Ill.Rev.Stat. ch. 122, ¶ 14-7.02, and the rules and regulations promulgated thereunder. Paragraph 14-7.-02 grants the SBE authority to promulgate rules and regulations for determining when placement in a private special education facility is appropriate. This section also provides that the Governor's Purchased Care Review Board ("Governor's Board") shall review the costs of special education and related services provided by non-public schools or special education facilities and shall approve or disapprove such facilities in accordance with the rules established by it with respect to allowable costs. Thus, the SBE must approve all facilities at which placements are made, and the Governor's Board must approve the costs of each facility before the SBE will authorize placement of a child in a private facility.

In this case, the SBE refused to approve the placement of Darlene at the Institute on the basis that it is a psychiatric hospital providing psychiatric services. Approval of placement at the Institute would violate a Memorandum of Understanding entered into between the SBE, the Governor's Board, and other state agencies, as well as rules and regulations adopted by the defendants.*fn2 Through these rules and regulations and the Memorandum of Understanding, the state adopted a policy of denying approval of private placements in psychiatric hospitals. Under section 1401(17) of the EHA, funds available under the Act need not be used to reimburse for medical services other than for diagnostic or evaluative purposes. The SBE has taken the position, through its rules and the Memorandum of Understanding, that psychiatric treatment provided at psychiatric hospitals is medical treatment and therefore not reimbursable under the EHA. On this basis, the SBE refuses to approve payment for any placements in psychiatric hospitals, including the placement of Darlene at the Institute of Living.

Plaintiff has brought this action against the SBE, the Governor's Board, the Board of District 211, the NSSEO, and various others to compel these defendants to approve and pay the cost of her placement at the Institute of Living. Plaintiff alleges in her complaint that the defendants' denial of her placement at the Institute of Living denies her a free appropriate education which she claims is guaranteed by the EHA, the Rehabilitation Act, equal protection and due process. She further alleges that the Memorandum of Understanding and the rules and regulations adopted by the defendants which bar approval of placements at psychiatric hospitals also violate these rights. Defendants have moved to dismiss on the ground that plaintiff has failed to state a claim upon which relief may be granted under the EHA, the Rehabilitation Act, and the Constitution.

MOTION TO DISMISS

In considering a Rule 12(b)(6) motion to dismiss, a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to the relief requested. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The court must accept as true all material facts well pleaded in the complaint, and must make all reasonable inferences in the light most favorable to the plaintiff. City of Milwaukee v. Saxbe, 546 F.2d 693, 704 (7th Cir. 1976). The court need not strain, however, to find inferences available to the plaintiff which are not apparent on the face of the complaint. Coates v. Illinois State Board of Education, 559 F.2d 445, 447 (7th Cir. 1977).

Education for All Handicapped Act

Plaintiff alleges that, by denying approval of her placement at the Institute of Living or at any other psychiatric hospital, defendants have denied her right to a free appropriate education guaranteed under § 1415 of the EHA. Plaintiff asserts that the EHA creates substantive rights in individual handicapped children, and that a private implied cause of action is available to enforce those rights. In response, defendants argue that the EHA is merely a funding statute creating no substantive rights in individuals. There is support in this district for both views. Compare McCowen v. Hahn,*fn3 No. 78 C 4233, slip op. at 8-11 (N.D.Ill. July 27, 1981), with Parks v. Pavkovic, 536 F. Supp. 296 (N.D.Ill. 1982); William S. v. Gill, 536 F. Supp. 505 (N.D.Ill. 1982).

However, the Supreme Court has recently indicated that the EHA permits parents to bring a civil action in the district court about any matter relating to the child's evaluation and education, and that the court is authorized to grant such relief as it determines appropriate. Board of Education of Hendrick Hudson Central School District v. Rowley, ___ U.S. ___, 102 S.Ct. 3034, 3050, 73 L.Ed.2d 690 (1982). See also Doe v. Kroger, 710 F.2d 1209 at 1213 (7th Cir. 1983). Thus, it appears that the EHA does create substantive rights in individuals which may be enforced in the district court, although the Court in Rowley stressed that compliance with the procedural requirements of the Act in most cases will assure that all substantive requirements of the Act have been met. The court finds in this case, however, that the rules and regulations adopted by the defendants do not violate any substantive rights created under the Act. To the contrary, the rules adopted by the defendants implement the express provisions of the Act.

  Section 1412(1) of the EHA requires states to have in effect
a policy that assures all handicapped children the right to a
free appropriate public education. The term "free appropriate
public education" is defined as special education and related
services which are provided at public expense, under public
supervision and direction and without charge, which meet the
standards of the state educational agency, and include
preschool, elementary or secondary education, and are provided
in conformity with the Individualized Education Program
required by § 1414(a)(5). 20 U.S.C. § 1401(18). "Related
Services" are defined in the Act as:


   . . 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.

20 U.S.C. ยง 1401(17). Thus, under the specific language of the Act, all medical services, except those provided for evaluative and diagnostic purposes, are specifically excluded from the "related services" which ...


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