Bernstein v. Department of Human Services

• Decision Date: 19 June 2009
• Docket Number: No. 1-07-3005.,1-07-3005.
• Parties: Francine BERNSTEIN, Legal Guardian for Bradley Bernstein, Her Son, Plaintiff-Appellant, v. The DEPARTMENT OF HUMAN SERVICES, an Illinois State Agency, and Trinity Services, Inc., an Illinois Not-For-Profit Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

910 N.E.2d 733

Francine BERNSTEIN, Legal Guardian for Bradley Bernstein, Her Son, Plaintiff-Appellant, v. The DEPARTMENT OF HUMAN SERVICES, an Illinois State Agency, and Trinity Services, Inc., an Illinois Not-For-Profit Corporation, Defendants-Appellees.

No. 1-07-3005.

Appellate Court of Illinois, First District, Sixth Division.

June 19, 2009.

Robert T. O'Donnell and David W. Seabright, Eiden & O'Donnell, Ltd., Vernon Hills, for Appellant.

Paul Racette, Illinois Attorney General, Chicago, for Appellee The Department of Human Services.

Matthew R. Henderson, Timothy G. Shelton, Hinshaw & Culbertson, L.L.P., Chicago, for Appellee Trinity Services, Inc.

Justice JOSEPH GORDON delivered the opinion of the court:

This matter arises from an order of the circuit court granting motions to dismiss the complaint of plaintiff, Francine Bernstein, filed by defendants, the Illinois Department of Health and Human Services (Department) and Trinity Services, Incorporated. For the reasons that follow, we affirm.

II. BACKGROUND

On October 31, 2005, the plaintiff, Francine Bernstein, filed a complaint against the defendants seeking, in part, an injunction requiring defendant Trinity to use contingent electric shock therapy to treat her son, Bradley. In her complaint, plaintiff avers that her 48-year-old autistic and mentally retarded son lives in a group home in Chicago, which is currently operated by Trinity Services, Incorporated (Trinity) and had been previously operated by Blare House, Incorporated (Blare House). She states that, as a consequence of her son's disabilities, her son engages in severe episodes of self-injurious behavior such as hitting his head or banging his head into hard surfaces—behavior which, in the past, has resulted in serious eye injuries that required hospitalization. Plaintiff alleges that the one therapy that has been successfully utilized to control this behavior is contingent electronic shock (CES), through the administration of electric shock to Bradley's body when he engages in self-injurious behavior in an effort to condition him to stop engaging in such behavior.

The controversy concerning the use of this treatment for plaintiff goes back to 1985. In that year, the Illinois Department of Health and Human Services, objected to the use of such therapy and threatened to refuse funding to Bradley's residential service provider, Blare House. As a result of this threat, plaintiff filed a lawsuit against the Department alleging that CES was an appropriate and necessary form of treatment for Bradley and seeking to enjoin the Department from withholding funding from Blare House based on its use of CES to treat Bradley. The lawsuit resulted in a consent decree between the parties on March 10, 1987, a copy of which was attached to plaintiffs complaint. Under the terms of that agreement, the Department was barred from reducing funding to Blare House in retaliation for the facility's use of CES to treat Bradley. The consent decree also recites that the use of CES by Blare House was an adequate and effective treatment for Bradley and was "necessary to insure Bradley's right to adequate and humane care in the least restrictive environment" and that any care plan that did not include CES would "either fail to deter Bradley's self injurious behaviors or so severely restrict Bradley's activities so as to impair his communicative skills, learning abilities and interaction with his environment."

After this decree was entered, Bradley continued to reside at the residential facility operated by Blare House and continued to receive CES. In 2003, however, plaintiff alleges that another dispute arose between plaintiff and Blare House regarding the continued use of CES and plaintiff filed another lawsuit to ensure its continued use. On April 10, 2006, the plaintiff and Trinity, which had acquired Blare House, reached a settlement agreement which provided that Bradley would be treated consistently with the terms of a social transition plan drafted in March 2006 by a clinical psychologist. That plan, which was attached to the complaint, provided that Bradley could still be treated with CES, but that an attempt should be made to "wean Bradley off of" the treatment, based on the psychologist's conclusion that CES did "not appear warranted given the current low intensity of self-abuse behavior." The agreement further stated that "in the event that this treatment plan and other reasonable alternative treatment options for mediating self-injurious behaviors are unsuccessful, the parties may propose or advocate a return to contingent electric shock to the extent permitted by law." The agreement also required Trinity to keep plaintiff "fully and completely apprised of all material developments" regarding Bradley's care. Although the settlement agreement is dated April 10, 2006, it was not executed by the parties until July 2006.

According to plaintiff's complaint, Trinity abruptly stopped using CES to treat Bradley on or about September 27, 2006, without any notice to plaintiff and in violation of the settlement agreement, which called for Trinity to "wean" him off the treatment. Plaintiff alleges that after the use of CES ceased, her son's behavior deteriorated rapidly and that he subsequently injured himself so badly that he required hospitalization. Plaintiff claims that this conduct by Trinity constituted a breach of the settlement agreement and prayed for an injunction compelling Trinity to resume the use of CES.

Trinity filed a motion to dismiss plaintiff's complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2006)), arguing that the settlement agreement requiring the continued use of CES could not be enforced because a statutory proscription of the use of electric shock therapy, namely section 15f of the Mental Health and Developmental Disabilities Administrative Act (Act) (20 ILCS 1705/15f (West 2006) (stating that individual behavioral support plans for those with "behavioral challenges" may not include "electric shock")), had become effective six weeks prior to the date on which the settlement agreement was entered into by the parties. Trinity noted that although the parties reached the settlement agreement on April 10, 2006, the agreement was not executed until July of 2006, weeks after section 15f became effective. Trinity contents that because the performance of its duty to administer CES under the contract would be illegal, the agreement was unenforceable.

Plaintiff filed a response to the motion to dismiss arguing that section 15f's proscription on the use of electric shock therapy for those with behavioral challenges could not be applied retroactively to prevent the use of CES on Bradley because Bradley had a "vested right" to receive such therapy. Plaintiff argued that such a right was vested under both the settlement agreement entered between the parties in 2006 and a court order entered by the Honorable Stephen Yates in 1986 which decided the first lawsuit between the parties.

Plaintiff contends that in that first lawsuit, the court approved the use of CES, approved an individual services plan which set forth "specific procedures and protocols as to shockable behaviors, shock delivery, and staff training and reporting," and issued an injunction against the Department barring it from reducing its funding of Blare House because of the use of CES. Plaintiff further averred in her response that she provided status reports pursuant to the court's order on a biweekly basis until October 17, 1995, when Judge Yates reduced the reporting requirements from biweekly to quarterly. In that same order, plaintiff alleges, the court suspended the requirement for annual court review of CES and "found it was approved generally as long as it was deemed clinically appropriate as determined by the behavioral psychologist responsible for Bradley's individual services plan."

In support of this claim, plaintiff attached as exhibits, copies of plaintiff's petition that initiated the 1986 lawsuit as well as Judge Yates' 1986 order. These exhibits reveal that plaintiff filed her 1986 action seeking to prevent the Department from withdrawing funding to Blare House pursuant to section 2-110 of the Mental Health and Developmental Disabilities Code (Ill.Rev.Stat.1985, ch. 91½, par. 2-110), then in force, which provided that an individual could receive "unusual, hazardous, or experimental" treatments upon the consent of the individual's guardian and court approval of that consent. In her petition, plaintiff alleged that CES was determined by experts to be "the most effective means to control Bradley's self-injurious behavior, primarily head banging and head hitting." She further explained that CES is administered using a device called the "Power-Mite," which produces an electric shock which is "somewhat more than would be received by touching a metallic object in a dry environment, and considerably less than the shock received by touching a household 110 volt electronic outlet."

In his order dated May 7, 1986, Judge Yates found that the evidence presented by plaintiff established "that the use of contingent electric shock may be authorized by Bradley Bernstein's guardian in her ward's best interest." In making this determination, the court noted the efforts to control defendant's self-injurious behavior through medication and restraints were ineffective and harmful and that CES could "eliminate the need for physical restraint, and allow Bradley to benefit from less restrictive treatment alternatives." The court also observed:

"The use of contingent electric shock * * * violates neither the Mental Health and Developmental Disabilities Code, Ill. Rev.Stat. Ch. 91½ sec. 1-100 et seq., the Community Residential Alternatives Licensing Act, Ill.Rev.Stat. Ch. 91/12, Sec. 621 et seq., the Minimum Standards for Licensure of Community Residential Alternative promulgated by the Department of...