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09/28/88 In Re Guardianship of John Charles Zarse

September 28, 1988

IN RE GUARDIANSHIP OF JOHN CHARLES ZARSE, JR., DECEASED


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

(John Charles Zarse, Sr., Guardian,

Petitioner-Appellee, v.

The Department of Mental Health & Developmental

Disabilities, Claimant-Appellant)

529 N.E.2d 50, 174 Ill. App. 3d 783, 124 Ill. Dec. 333 1988.IL.1473

Appeal from the Circuit Court of Vermilion County; the Hon. Joseph C. Moore, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE GREEN delivered the opinion of the court. LUND and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

The Education for All Handicapped Children Act of 1975 (20 U.S.C. § 1400 et seq. (1976); see also 20 U.S.C. § 1400 et seq. (1982 & Supp. IV 1986)) provides for the Federal government to distribute funds to States to assist in paying costs of educating handicapped children but requires recipient States to adopt policies to provide those services free of charge. At times pertinent, acting pursuant to the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1983, ch. 91 1/2, par. 1 -- 100 et seq.), the Illinois Department of Mental Health and Developmental Disabilities (Department) has received these funds and used them together with other funds to provide for the education of mentally handicapped children.

At times pertinent, sections 5-105 through 5-116 of the Code (Ill. Rev. Stat. 1983, ch. 91 1/2, pars. 5-105 through 5-116) placed a requirement upon responsible relatives and the estate of recipients of a wide variety of services including those for handicapped children to reimburse, according to their ability, the Department for the rendition of those services. The principal issue in this case is whether the provisions of EAHCA preempt the provisions of sections 5-105 through 5-116 of the Code, preventing the Department from seeking recovery against the guardianship estate of a deceased minor who had received such services under the circumstances here. In this case, the estate of the minor contained large sums of money obtained pursuant to a medical malpractice settlement with a practitioner alleged to have negligently caused the condition which handicapped the minor child. We hold that such preemption did occur, thus preventing recovery.

A secondary issue is whether the guardianship estate of the deceased minor, because of failure to exercise administrative remedies or otherwise, is prevented from disputing the Department's claim. We hold the estate is not prevented from disputing the claim.

The record in this case reveals the following. The minor John Charles Zarse, Jr., was born mentally retarded on April 10, 1971, and died June 17, 1983. He had resided mainly in facilities operated by the Department from March 15, 1976, until his death. Prior to the minor's death, his father, John Charles Zarse, Sr., had been appointed guardian of his estate by the circuit court of Vermilion County. On October 21, 1983, four months after the minor's death, the Department sent a "Notice of Determination of sums due" to the guardian pursuant to section 5-111 of the Code (Ill. Rev. Stat. 1983, ch. 91 1/2, par. 5-111) claiming the sum of $48,725 was due the Department and thus initiating proceedings under the Code for reimbursement. Section 5-111 states that a party wishing to dispute such a determination of amount due can do so by filing with the Department, within 90 days of the notice, a petition for review by the Board of Reimbursement Appeals (Ill. Rev. Stat. 1983, ch. 91 1/2, par. 5-111). The guardian attempted no such action until after the 90-day period had expired.

Section 5-113 of the Code permits suits against responsible relatives of recipients "liable under [the] Act" for reimbursement to be brought in the circuit court of the county where they reside. (Ill. Rev. Stat. 1983, ch. 91 1/2, par. 5-113.) Section 5-114 of the Code permits the filing of a claim in the estate of a decedent for reimbursement owed by the decedent. (Ill. Rev. Stat. 1983, ch. 91 1/2, par. 5-114.) On December 15, 1983, less than 90 days after the Department's issuance of the notice of determination, the Department filed a claim in the minor's guardianship estate seeking reimbursement for services rendered to the minor in the sum of $50,823.02. On February 15, 1984, the guardian filed a motion objecting to and seeking to dismiss the claim and a counterclaim for reimbursement. The motion and objections raised various procedural points and also contended the provisions of EAHCA prevented the Department from obtaining reimbursement. The ...


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