Radaszewski ex rel. Radaszewski v. Maram, 02-3657.

Citation383 F.3d 599
Decision Date08 September 2004
Docket NumberNo. 02-3657.,02-3657.
PartiesDonna RADASZEWSKI, Guardian, on behalf of Eric RADASZEWSKI, Plaintiff-Appellant, v. Barry S. MARAM,<SMALL><SUP>*</SUP></SMALL> Director, Illinois Department of Public Aid, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Appeal from the United States District Court for the Northern District of Illinois, John W. Darrah, J.

Bernard Shapiro, Prairie State Legal Services, Incorporated, Rockford, IL, Eliot

Abarbanel, Prairie State Legal Services, Incorporated, Carol Stream, IL, Sarah Megan (argued), Prairie State Legal Services, Incorporated, Batavia, IL, for Plaintiff-Appellant.

Mary E. Welsh (argued), Office of the Attorney General, Chicago, IL, for Defendant-Appellee.

Sarah E. Harrington, Dept. of Justice, Civil Rights Division, Appellate Section, Washington, DC, Max Lapertosa, Barry C. Taylor, Equip for Equality Inc., Benjamin S. Wolf, Roger Baldwin Foundation of ACLU, Inc., Chicago, IL, for Amicus Curiae.

Before KANNE, ROVNER, and DIANE P. WOOD, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

As a consequence of brain cancer and a stroke that he suffered at the age of 13, Eric Radaszewski requires around-the-clock medical care in order to survive. Until he reached the age of 21, the Illinois Department of Public Aid ("IDPA" or the "Department") provided funding through a Medicaid program for children that enabled Eric to receive 16 hours of private-duty nursing at home each day. After he turned 21, Eric was no longer eligible to participate in that program. Illinois has a separate program providing at-home care for adults who would otherwise have to be cared for in institutions. However, funding under that program is capped at a level that is insufficient to pay for the extent of private-duty nursing that Eric would need in order to remain at home. Consequently, Eric faces the prospect of entering a long-term care facility in order to receive the intensive medical care that he needs. Eric's mother, Donna Radaszewski, filed this suit against the Director of the IDPA (the "Director") on Eric's behalf, contending that the IDPA's failure to fully fund at-home, private-duty nursing for Eric amounts to disability discrimination in violation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (the "Rehabilitation Act"), and Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132 (the "ADA"), in that Illinois is refusing to provide the medical services that Eric requires in order to remain in the most community-integrated setting appropriate for his needs, which is his home. The district court entered judgment on the pleadings in favor of the Director, reasoning that the ADA claim against the Director was barred by the Eleventh Amendment and that the Rehabilitation Act claim failed as a matter of law because in-home nursing care is not a service that Illinois currently provides to any adult individual. We reverse and remand for further proceedings.

I.

As this case was resolved on the basis of the pleadings, we accept the facts alleged in Radaszewski's supplemental complaint as true. E.g., Midwest Gas Servs., Inc. v. Indiana Gas Co., 317 F.3d 703, 709 (7th Cir.), cert. denied, ___ U.S. ___, 124 S.Ct. 82, 157 L.Ed.2d 34 (2003). We also take judicial notice of the contents of certain matters in the public record, including administrative findings about Eric's medical status and needs. See, e.g., Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 456 (7th Cir.1998).

Eric was diagnosed with medulloblastoma, a form of brain cancer, in 1992. After undergoing surgery, radiation, and chemotherapy to treat the cancer, Eric suffered a mid-brain stroke in 1993. The cancer, stroke, and medical treatment have impaired Eric's physical and mental functions and left him medically fragile. In the opinion of his physician, Eric requires one-on-one on-one care by a registered nurse 24 hours per day in order to survive.

Since July 1994, Eric has received around-the-clock care at his parents' home. In August 1995, when his family had exhausted its medical insurance benefits, Eric began to receive at-home nursing care through the Illinois Medicaid program.

Medicaid, a program funded jointly by the States and the federal government, provides medical assistance both to disabled individuals and to families with dependent children whose income and resources are otherwise insufficient to pay for the cost of the medical care that they require. See 42 U.S.C. § 1396; 305 Ill. Comp. Stat. Ann. 5/5-1. Each State participating in the Medicaid program must submit for approval to the U.S. Secretary of Health and Human Services ("HHS") a plan setting forth the services that the State will provide in its Medicaid program. 42 U.S.C. §§ 1396, 1396a(a)(10), 1396d(a), 42 C.F.R. § 440.230(a).

"Private-duty nursing," defined as nursing services provided to a person who requires more individualized and continuous care than would routinely be provided by a visiting nurse or by the nursing staff of a hospital or skilled nursing facility, 42 C.F.R. § 440.80, is one of the services that a State may elect to include in its Medicaid plan. 42 U.S.C. §§ 1396d(a)(8), 1396a(a)(10)(C); 42 C.F.R. § 440.225. A State may choose to provide private-duty nursing services at the recipient's home, at a hospital, or at a skilled nursing facility. 42 C.F.R. § 440.80(c). Prior to this litigation, the Illinois Medicaid plan included coverage for private-duty nursing, provided that such nursing was recommended by a physician, prior approval was obtained from the appropriate State agency, and the care was provided by someone other than the recipient's relative; the plan imposed no limitation on the cost of such care, nor did it limit where private-duty nursing could be provided to the Medicaid recipient. See Radaszewski ex rel. Radaszewski v. Garner, 346 Ill.App.3d 696, 282 Ill.Dec. 1, 805 N.E.2d 620, 623-24 (2003), supplemented on denial of reh'g (March 25, 2004). In the course of this litigation, however, Illinois drafted an amendment to its Medicaid plan to delete all references to private-duty nursing and submitted the amendment to HHS for clearance; the Secretary approved that amendment on February 2, 2001. Id. 282 Ill.Dec. 1, 805 N.E.2d at 622-23; Radaszewski Reply Br. Addendum 12-13. The State then initiated rulemaking under the Illinois Administrative Procedure Act to implement the change; that process was completed as of September 1, 2001. See Radaszewski, 282 Ill.Dec. 1, 805 N.E.2d at 622-23.

In addition to the services outlined in their basic Medicaid plans, States may seek HHS approval to provide home and community-based services to individuals who would otherwise require institutional care. The HHS Secretary may approve these services in the exercise of his "waiver" authority, so labeled because it empowers the Secretary to waive certain Medicaid requirements that would otherwise constrain a State's ability to offer these services — e.g., service limitations and financial eligibility criteria. See 42 U.S.C. § 1396n(b)-(h); 42 C.F.R. § 430.25(d). This power is often used to authorize innovative and experimental programs. As relevant here, it facilitates state programs designed to provide home- and community-based services to persons who would otherwise have to be cared for in nursing homes or other institutions: specifically, the Secretary may issue waivers permitting a State to offer these services only to individuals who need them in order to avoid institutionalization, rather than to every State citizen who qualifies for Medicaid. See 42 U.S.C. § 1396n(c)(1). In seeking approval for a waiver program offering home and community care, however, the State must certify that it is cost-neutral in the sense that the average per-person cost of the care offered through the waiver program does not exceed the average cost of providing that care in an institutional setting. See § 1396n(c)(2)(D); 42 C.F.R. § 441.302(e).

Pursuant to this waiver authority, HHS has approved Illinois's Medicaid program for Medically Fragile, Technology Dependent Children (the "MFTDC program"). This program offers a variety of home- and community-based services and equipment to medically fragile persons under the age of 21 who would otherwise have to be cared for in a skilled pediatric facility or a hospital. See 89 Ill. Admin. Code § 140.645. The services offered by this program include private-duty shift nursing and respite care in the recipient's home. The amount of services that a person may receive under this program is determined with reference to the cost of the care that he or she alternatively would require in a skilled pediatric facility or a hospital. 89 Ill. Admin. Code § 140.645(c)(3).1

Eric was found eligible for the MFTDC program and began receiving services in 1995. Based on the estimated cost of the level of care that Eric would require in a medical institution, the IDPA approved a care plan for Eric that called for 16 hours per day of in-home nursing services provided by registered nurses. Eric's parents, who were given special training so that they could provide the necessary care for Eric, tended to him the remaining eight hours of each day. In order to provide them with periodic relief from that responsibility, the IDPA also provided Eric an additional 336 hours of respite nursing services per year. The IDPA approved this care plan annually until Eric reached the age of 21 when, by virtue of his age, he became ineligible for continued participation in the MFTDC program.

Illinois has a separate HHS-approved waiver program for disabled adults — the Home Services Program ("HSP") — which, like the MFTDC program, offers services not otherwise covered by the State's basic Medicaid program and which enables such adults to continue living at home in lieu of being cared for in an institution, provided that the cost of at-home care does not exceed the...

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