Parks v. Pavkovic

• Decision Date: 28 February 1983
• Docket Number: No. 82 C 965.,82 C 965.
• Citation: 557 F. Supp. 1280
• Parties: Richard PARKS, Marilyn Parks, 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

557 F. Supp. 1280

Richard PARKS, Marilyn Parks, 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.

February 28, 1983.

COPYRIGHT MATERIAL OMITTED

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

Robert John Connor, Ill. Dept. of Mental Health and Developmental Disabilities, Chicago, Ill., for Pavkovic and Barger.

Paul C. Millichap, Ill. Atty. Gen., for Copeland, Mandeville, Kempiners, Miller, Coler and Granzeier.

Patricia J. Whitten, Oak Park, Ill., for Love.

MEMORANDUM OPINION

PRENTICE H. MARSHALL, District Judge.

This is a disturbing case. Plaintiffs have brought to our attention one of the most blatant violations of federal law imaginable. It appears that the State of Illinois has been openly violating the rights of handicapped children. Defendants, instead of promptly moving to correct the problem, or even arguing that they have complied with federal law, defend this case almost entirely by finger-pointing. Each state and local agency involved in this case does little more than claim that it is not responsible for the plight of handicapped children in Illinois, and urges the court to pin the blame elsewhere. While this bureaucratic infighting rages, none of these public servants before the court seem concerned about finding a way to remedy the problem. That is a task that must, by default, fall on this court. We now undertake it.

THE FACTS

Named plaintiff Lester Parks is a severely emotionally disturbed child in need of special education and related services. Because he is so severely disabled, he must be placed in a residential facility which can provide him with the intensive educational and support services that he needs. In early 1980, Lester's parents became fearful that the facility in which he then resided, New Hope Living and Learning Center, was in danger of closing. They sought help from the Chicago Board of Education ("CBE") and the Illinois Department of Mental Health and Developmental Disabilities ("DMHDD") in finding an alternative placement for Lester.

In July, 1980, DMHDD placed Lester in Willowglen Academy, a residential treatment center in Milwaukee, Wisconsin. However, DMHDD did not pay for the cost of the ensuing treatment and special education that Lester received there. Eventually, Willowglen announced that it would discharge Lester on March 25, 1982 unless his outstanding bill was paid. In an effort to prevent the imminent discharge, Lester and his parents filed this suit on February 18, 1982. On March 19, this court ruled that defendants, the various state and local officials responsible for providing Lester with an education under state and federal law, had apparently breached their duty to provide Lester with a free appropriate public education, and issued a preliminary injunction requiring them to assure Willowglen that they would pay Lester's outstanding bill, so that it would not discharge him. See Parks v. Pavkovic, 536 F.Supp. 296 (N.D.Ill.1982).¹

Pending before the court are plaintiffs' motions for class certification and partial summary judgment.

THE MERITS

Before turning to the specific issues pending before the court, an examination of the merits of this lawsuit is necessary. The merits of the case provide the necessary perspective from which the more specific issues raised can be viewed.

"It is the purpose of this Act to assure that all handicapped children have available to them, within the periods specified ... a free appropriate public education." So goes the preamble to the Education for All Handicapped Children Act of 1975 ("EHA"), 20 U.S.C. § 1400(c) (Supp. V 1981). The Act goes on to provide that participating states such as Illinois must provide a free appropriate public education to all handicapped children ages three to eighteen by September 1, 1978, and to all children ages three to twenty-one by September 1, 1980. Id. § 1412(2)(B) (1976). Local educational agencies in participating states are also required to provide a free appropriate public education. Id. § 1414(a)(1)(C)(ii).²

The free appropriate public education guaranteed by the act includes both special education and related services provided at public expense. See 20 U.S.C. § 1401(18) (1976). "Related services" include all supportive services necessary to enable a handicapped child to benefit from special education. Id. § 1401(17). "Related services," if they include placement in a residential facility, must be free of charge.

If placement in a public or private residential program is necessary to provide special education and related services to a handicapped child, the program, including non-medical care and room and board, must be at no cost to the parents of the child.

34 C.F.R. § 300.302 (1981).³

Thus, the EHA unambiguously requires Illinois to provide an appropriate public education at no cost to the parents of handicapped children.⁴ For reasons that escape us, however, Illinois chooses not to comply with this clear federal mandate. The Illinois Mental Health and Developmental Disabilities Code provides,

Each recipient of services of the Department, and the estate of such recipient, is liable for the payment of sums representing charges for services to such recipient at a rate to be determined by the Department in accordance with this Act. If such recipient is unable to pay or if the estate of such recipient is insufficient, the responsible relatives are severally liable for the payment of such sums, or for the balance due in case less than the amount prescribed under this Act has been paid. The maximum services charged for each patient assessed against responsible relatives collectively may not exceed financial liability determined from income in accordance with the uniform schedule in Section 5-116 of this Act.

Ill.Rev.Stat. ch. 91½, § 5-105 (1981). The Act goes on to authorize DMHDD to assess the responsible relative liability created by the act to the responsible relatives, and creates a schedule for the assessment of costs based on the annual income of the recipient or his responsible relatives. See id. §§ 5-106 to 5-116.

Under this statutory scheme, DMHDD charges parents of handicapped children amounts equal to the responsible relative liability that they calculate for each recipient of services. In 1982, DMHDD made 207 assessments of responsible relative liability covering 478 recipients of services. Answers to Interrogatories by Defendant Pavkovic # 5. Lester's case is illustrative. His parents have been charged $100 per month since he was placed in Willowglen. This is despite the fact that Lester's father is unemployed. Plaintiffs have submitted affidavits from other parents of handicapped children who have had to pay similar charges. Thus, the free appropriate public education that is guaranteed by federal law is, in Illinois, anything but free.

CLASS CERTIFICATION

In challenging the assessment of a responsible relative liability,⁵ plaintiffs seek to have this case certified as a class action on behalf of

All handicapped Illinois children between the ages of three and twenty-one and their parents who have been refused full funding for private special education placements as a result of any of the following Illinois State Board of Education ("ISBE"), Illinois Department of Mental Health and Developmental Disabilities ("DMHDD"), Governor's Purchased Care Review Board ("GPCRB"), and Chicago Board of Education policies and practices:

a. DMHDD policy not to pay a portion of special education costs designated as "responsible relative liability;"

b. ISBE policy not to pay the DMHDD-designated responsible relative liability;

c. ISBE policy not to assure that other state agencies pay the DMHDD-designated responsible relative liability;

d. Chicago Board of Education practice not to pay the DMHDD-designated responsible relative liability for the children within its jurisdiction.

There are four prerequisites to class certification.

(1) The class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed.R.Civ.P. 23(a).

This case satisfies the numerosity requirement. The parties appear to agree that the proposed class runs into the hundreds.

The case also satisfies the commonality requirement. The questions whether defendants fail to pay responsible relative liability and, if so, whether this violates federal law making judicial intervention appropriate are common to the class.

The typicality inquiry examines the relationship between the representative party's claims and the class' claims. Certification is appropriate unless the named plaintiffs present unique claims personal to them which are likely to be a major focus of litigation. See Patterson v. General Motors Corp., 631 F.2d 476, 481 (7th Cir.1980), cert. denied, 451 U.S. 914, 101 S.Ct. 1988, 68 L.Ed.2d 304 (1981); Koos v. First National Bank, 496 F.2d...