Parks v. Pavkovic

• Decision Date: 19 March 1982
• Docket Number: No. 82 C 965.,82 C 965.
• Citation: 536 F. Supp. 296
• Parties: Richard PARKS, Marilyn Parks, and 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.
• Court: U.S. District Court — Northern District of Illinois

536 F. Supp. 296

Richard PARKS, Marilyn Parks, and 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.

No. 82 C 965.

United States District Court, N. D. Illinois, E. D.

March 19, 1982.

COPYRIGHT MATERIAL OMITTED

Mark C. Weber, Mandel Legal Aid Clinic, Chicago, Ill., for plaintiffs.

Robert John Connor, Ill. Dept. of Mental Health & Developmental Disabilities, Tyrone C. Fahner, Atty. Gen., Paul Millichap, Asst. Atty. Gen., Robert J. Krajcir, Christine Holtz, Bd. of Ed., Chicago, Ill., for defendants.

MEMORANDUM OPINION

MARSHALL, District Judge.

Plaintiffs in this action are Lester Parks and his parents and next friends, Richard and Marilyn Parks.¹ Lester is currently 17 years old, and has autistic characteristics, moderate mental retardation, severe emotional disturbances, speech and language impairments, and behavioral disorders. Because of these handicaps, Lester qualifies as a handicapped child entitled to the protections of the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1401-61 (1976), see id. § 1401(1) ("The term `handicapped children' means mentally retarded, ... speech impaired, ... seriously emotionally disturbed children ... who by reason thereof require special education and related services."), and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Supp. II 1978), see id. § 706(7)(B) ("The term `handicapped individual' means ... any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such an impairment."). Lester is in need of special education and related services in a residential facility due to the severity of his handicaps. In early 1980, Lester resided in a facility called the New Hope Living and Learning Center, which provided Lester with educational and other services enabling him to receive an education which he would not have been able to receive in a nonresidential public school. At the time, however, Lester's parents feared that New Hope was in danger of closing.² As a result, they requested help from the Chicago Board of Education ("CBE") in locating and placing Lester in a new facility suitable for his educational needs. CBE never did find an appropriate placement for Lester.

At some point, it appears that someone requested that the Illinois Department of Mental Health and Developmental Disabilities ("DMHDD") also locate and place Lester in a suitable facility, for in July, 1980, DMHDD placed Lester in Willowglen Academy, a residential treatment facility in Milwaukee, Wisconsin. Lester has remained at Willowglen ever since. Plaintiffs do not challenge DMHDD's placement of Lester; to the contrary, they appear to be satisfied with the education Lester is receiving at Willowglen. What they do challenge, however, is the failure of various state agencies and CBE to assume the full cost of Lester's placement at Willowglen.³ Plaintiffs allege that Lester has a right, under the Education for All Handicapped Children Act ("EHA") and § 504 of the Rehabilitation Act⁴ to a free appropriate public education, and that this right has been denied by defendants' refusal to assume all the costs associated with Lester's education. The specific allegations, as yet undenied by defendants, are that: (1) DMHDD refuses to assume $100 per month of the costs of Lester's placement at Willowglen, denominating that amount "responsible relative liability." Thus, for every month since July, 1980, the "Individual Care Grant" Lester receives from DMHDD has been reduced by $100. (2) DMHDD has reduced its funding of Lester's placement further by refusing to pay for amounts it claims are attributable to "clothing and allowance." DMHDD refused to pay $17.24 per month for this reason from July, 1980 through December, 1980, and has refused to pay $1.42 per day from January 1, 1981 through December 31, 1981 on the ground that this amount was attributable to "clothing, medical supplies and purchased services."⁵ (3) DMHDD has not yet approved a 1982 rate for Lester's expenses at Willowglen, and is paying those expenses at a lower, 1981 rate.⁶ (4) DMHDD has refused to pay Lester's speech therapy costs, payable to "Bell Therapy," incurred prior to August 17, 1981. (5) DMHDD, CBE and the Illinois State Board of Education ("ISBE") have refused to pay Lester's special education and related services expenses for periods prior to the time Lester and Willowglen were approved for funding. Willowglen was not approved until September, 1981, and Lester was not approved until January 22, 1982. There is some dispute as to why this delay occurred. The state defendants blame Willowglen for its failure to obtain earlier approval. As to the failure to approve Lester for funding prior to January 22, 1982, there is no explanation in the record. Whatever the reasons, there is no allegation that Lester is at fault for either delay. (6) ISBE, and apparently DMHDD and CBE as well, have refused to pay for Lester's tuition at rates in excess of the rate approved for Willowglen by the Governor's Purchased Care Review Board ("GPCRB"). GPCRB is responsible under state law for ensuring that the state meets its obligations to provide handicapped students with an appropriate education by promulgating appropriate guidelines and standards. See Ill.Rev.Stat., ch. 122, § 14-7.02 (1979). The current GPCRB-approved rate does not meet Lester's actual expenses at Willowglen.

Sometime in 1981, Lester's parents requested a due process hearing from CBE at which they would be able to air their complaints about CBE's alleged failure to provide Lester with an appropriate free education. There is some dispute as to exactly when the hearing was requested. What is agreed is that a hearing was held on December 1, 1981, and a decision rendered on December 8, 1981. The hearing officer decided that CBE had breached its duty to provide Lester with an appropriate free public education, and required CBE to assume Lester's costs in the future.⁷ However, the officer declined to order CBE to assume responsibility for costs assessed to Lester's parents in the past; the decision has prospective force only. Plaintiffs appealed the officer's decision on January 5, 1982. Apparently because of a delay caused by CBE,⁸ the case has not been decided yet by ISBE, despite the fact that federal law requires ISBE to reach a final decision within 30 days of receipt of plaintiffs' request for review. See 34 C.F.R. § 300.512(c).

At the present time, Lester has an outstanding bill at Willowglen in the amount of $2,154.53.⁹ Because of the unpaid bill, Willowglen has issued a discharge notice to Lester which will become effective on March 25, 1982. The notice was issued on January 25, 1982. Plaintiffs, no longer feeling capable of waiting until their appeal was decided by ISBE, filed the instant action. Named as defendants were Ivan Pavkovic, Director of DMHDD, Edward Copeland, Chairman of ISBE, Dr. Ruth Love, Superintendent of CBE, Robert Mandeville, Director of the Illinois Bureau of Public Aid, Gregory Coler, Director of the Illinois Department of Children and Family Services, Robert Granzeier, Acting Director of the Illinois Department of Vocational Rehabilitation, Donald Gill, Illinois State Superintendent of Education, William Kempiners, Director of the Illinois Department of Public Health, and Patricia Barger, an employee of DMHDD. Defendants Mandeville, Miller, Coler, Granzeier, Gill, Barger and Kempiners are members of GPCRB. This court's jurisdiction rests on 28 U.S.C. § 1331 (West Supp.1981) and 20 U.S.C. § 1415(e) (1976). Currently before the court is plaintiffs' motion for preliminary injunctive relief requiring defendants to pay Lester's outstanding bill so that Lester will not be discharged from Willowglen prior to trial on the merits.

I

While defendants agree that Lester is handicapped and entitled to the protections of the EHA, they do not agree that he has a private right of action to enforce the provisions of the Act by means of the instant suit. There is authority for the proposition that there is no private right of action, under the EHA, to obtain judicial review on the merits of the decisions of state and local educational agencies regarding the provision of a free appropriate public education to handicapped children. See McCowen v. Hahn, No. 78 C 4233, slip op. at 8-11 (N.D. Ill. July 27, 1981); Miener v. Missouri, 498 F.Supp. 944 (E.D.Mo.1980) rev'd in relevant part, 673 F.2d 969 (8th Cir. 1982); Loughran v. Flanders, 470 F.Supp. 110, 114 (D.Conn.1979). However, this position has been rejected by two courts of appeal, including the court of appeals for this circuit. See Miener v. Missouri, 673 F.2d 969, at 975 (8th Cir. 1982); Anderson v. Thompson, 658 F.2d 1205, 1210 n.7 (7th Cir. 1981).¹⁰ These cases hold that the EHA, in 20 U.S.C. § 1415 (1976), explicitly creates a private right of action, and permits plaintiffs in those actions to obtain review, on the merits, of the relevant educational agencies' decisions regarding the provision of a free appropriate public education to the plaintiffs...